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HomeMy WebLinkAbout926255 000773 RECORD TION REQUESTED BY: ZIONS IRST NATIONAL BANK RAND LPH OFFICE 125 N RTH MAIN RAND LPH,UT 84064 WHEN R CORDED MAIL TO: Zions rst National Bank Retail oan Center - UT RDWG 0853 P.O. B x 30160 West alley City, UT 84130-0160 RECEIVED 1/22/2007 at 4:19 PM RECEIVING # 926255 BOOK: 646 PAGE: 773 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER. WY SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY *001000690004014906074501162007* MORTGAGE THIS MO T~AG~ datjd . '!nuary 16, 2007, is made and executed between HEATH B MACKEY and KRISTI A MACKEY ltBRitfb'tJ ~8'1Jd1ò-~e as "Grantor") and ZIONS FIRST NATIONAL BANK, whose address is 125 NORTH MAIN, R NDOlPH, UT 84064 (referred to below as "lender"). GRANT OF ORTGAGE. For valuable consideration, Grantor mortgages and conveys to Lender all of Grantor's right, title, and interest in and to the followin 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 ri hts); and all other rights, royalties, and profits relating to the real property, including without limitation all minerals, oil, gas, geothermal nd similar matters, (the "Real Property") located in LINCOLN County, State of Wyoming: LOTS 1, 2 AND 3 OF BLOCK 3 OF WYMAN FORST ADDITION TO THE TOWN OF COKEVllLE, LINCOLN COU TY, WYOMING AS DESCRIBED ON THE OFFICIAL PLAT THEREOF. The Real rOl?erty or its address is commonly known as 210 SECOND NORTH, COKEVILLE, WY 83114. The Real Property ax Identification number is 12-2419-05-3-03-005.00. Grantor pre ently 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 Pr perty. In addition, Grantor grants to Lender a Uniform Commercial Code security interest in the Personal Property and Rents. THIS MORT AGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO ECURE (AI PAYMENT OF THE INDEBTEDNESS AND (B) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THE NOTE. THE RELAT D DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: PA YMENT ND PERFORMANCE. Except as otherwise provided in this Mortgage, Grantor shall pay to Lender all amounts secured by this Mortgage a they become due and shall strictly perform all of Grantor's obligations under this Mortgage. POSSESSIO AND MAINTENANCE OF THE PROPERTY. Grantor agrees that Grantor's possession and use of the Property shall be governed by the followin provisions: Posses ion and Use. Until the occurrence of an Event of Default, Grantor may (1) remain in possession and control of the Property; 12) use, op rate or manage the Property; and (3) collect the Rents from the Property. )/ 402.- I,V, Duty t Maintain. Grantor shall maintain the Property in good condition and promptly perform all repairs, replacements, and maintenance necess ry to preserve its value. Compli nce With Environmental Laws. Grantor represents and warrants to Lender that: (1) During the period of Grantor's ownership of the Pro erty, there has been no use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substa ce by any person on, under, about or from the Property; (2) Grantor has no knowledge of, or reason to believe that there has been, cept as previously disclosed to and acknowledged by Lender in writing, (a) any breach or violation of any Environmental Laws, Ib) an use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about r from the Property by any prior owners or occupants of the Property, or (c) any actual or threatened litigation or claims of any kind by any person relating to such matters; and (3) Except as previously disclosed to and acknowledged by Lender in writing, la) neither Granto nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of or rele se 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 authori es Lender and its agents to enter upon the Property to make such inspections and tests, at Grantor's expense, as Lender may deem approp ate to determine compliance of the Property with this section of the Mortgage. Any inspections or tests made by Lender shall be for Len er'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 Hazard us Substances. Grantor hereby (1 releases and waives any future claims against Lender for indemnity or contribution in the event rantor becomes liable for cleanup or other costs under any such laws; and (2) agrees to indemnify, defend, and hold harmless Lender gainst any and all claims, losses, liabilities, damages, penalties, and expenses which Lender may directly or indirectly sustain or suffer r suiting from a breach of this section of the Mortgage or as a consequence of any use, generation, manufacture, storage, disposal, loan No: 010006900040G~6255 MOh I u"",ùE (Continued) 000774 Page 2 release or threatened release occurring prior to Grantor's ownership or interest in the Property, whether or not the same wa or should have b en known to Grantor. The provisions of this section of the Mortgage, including the obligation to indemnify and defend, s all survive the pa ent of the Indebtedness and the satisfaction and reconveyance of the lien of this Mortgage and shall not be affected y Lender's acquisi ion of any interest in the Property, whether by foreclosure or otherwise. Nuisan e, Waste. Grantor shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any stripping of or wa e on or to the Pro erty or any portion of the Property. Without limiting the generality of the foregoing, Grantor will not remove, or grant t any other party t e right to remove, any timber, minerals (including oil and gas), coal, clay, scoria, soil, gravel or rock products without Le der's prior written consent. Remov I of Improvements. Grantor shall not demolish or remove any Improvements from the Real Property without Lender's p 'or written consen. As a condition to the removal of any Improvements, Lender may require Grantor to make arrangements satisfactory t Lender to replace such Improvements with Improvements of at least equal value. Lender' Right to Enter. Lender and Lender's agents and representatives may enter upon the Real Property at all reasonable time to attend to Lend r's interests and to inspect the Real Property for purposes of Grantor's compliance with the terms and conditions of this ortgage. Compli nce with Governmental Requirements. Grantor shall promptly comply with all laws, ordinances, and regulations, now r hereafter in effe ,of all governmental authorities applicable to the use or occupancy of the Property. Grantor may contest in good fait any such law, or ¡nance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Grantor as notified Lender n writing prior to doing so and so long as, in Lender's sole opinion, Lender's interests in the Property are not jeopardiz d. Lender may re uire Grantor to post adequate security or a surety bond, reasonably satisfactory to Lender, to protect Lender's interest. Protect. Grantor agrees neither to abandon or leave unattended the Property. Grantor shall do all other acts, in additi n to those forth above in this section, which from the character and use of the Property are reasonably necessary to protect and p eserve the TAXES AN LIENS. The following provisions relating to the taxes and liens on the Property are part of this Mortgage: t. Grantor shall pay when due (and in all events prior to delinquency) all taxes, payroll taxes, special taxes, assessm nts, water charge and sewer service charges levied against or on account of the Property, and shall pay when due all claims for work don on or for service rendered or material furnished to the Property. Grantor shall maintain the Property free of any liens having priority over r equal to the int est of Lender under this Mortgage, except for those liens specifically agreed to in writing by Lender, and except for the Ii n of taxes and as essments not due as further specified in the Right to Contest paragraph. Right t Contest. Grantor may withhold payment of any tax, assessment, or claim in connection with a good faith disput over the obligati n 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 n npayment, Granto shall within fifteen (15) days after the lien arises or, if a lien is filed, within fifteen (15) days after Grantor has notice 0 the filing, secure he discharge of the lien, or if requested by Lender, deposit with Lender cash or a sufficient corporate surety bond or ot er security satisfa tory to Lender in an amount sufficient to discharge the lien plus any costs and attorneys' fees, or other charges that c uld accrue as a r ult of a foreclosure or sale under the lien. In any contest, Grantor shall defend itself and Lender and shall satisfy a y adverse judgme t before enforcement against the Property. Grantor shall name Lender as an additional obligee under any surety bond f rnished in the co est proceedings. Eviden e of Payment. Grantor shall upon demand furnish to Lender satisfactory evidence of payment of the taxes or assessmen and shall authori e the appropriate governmental official to deliver to Lender at any time a written statement of the taxes and assessme ts against the Pro erty. Notice f Construction. Grantor shall notify Lender at least fifteen (15) days before any work is commenced, any services are fu nished, or any m terials are supplied to the Property, if any mechanic's lien, materialmen's lien, or other lien could be asserted on ace unt of the work, ervices, or materials. Grantor will upon request of Lender furnish to Lender advance assurances satisfactory to Lender t at Grantor can an will pay the cost of such improvements. PROPERTY AMAGE INSURANCE. The following provisions relating to insuring the Property are a part of this Mortgage: Mainte ance of Insurance. Grantor shall procure and maintain policies of fire insurance with standard extended coverage end or ements on a repla ement basis for the full insurable value covering all Improvements on the Real Property in an amount sufficient to avoid pplication of any oinsurance clause, and with a standard mortgagee clause in favor of Lender. Policies shall be written by such insurance companies and in uch form as may be reasonably acceptable to Lender. Grantor shall del.iver to Lender certificates of coverage from e ch insurer contain ng a stipulation that coverage will not be cancelled or diminished without a minimum of ten (10) days' prior written notic to Lender and no containing any disclaimer of the insurer's liability for failure to give such notice. Each insurance policy also shall include an endors ment providing that coverage in favor of Lender will not be impaired in any way by any act, omission or default of Gra tor or any other p rson. Should the Real Property be located in an area designated by the Director of the Federal Emergency Management gency as a speci I flood hazard area, Grantor agrees to obtain and maintain Federal Flood Insurance, if available, within 45 days after noti e is given by Len er that the Property is located in a special flood hazard area, for the full unpaid principal balance of the loan and any pr or liens on the pro erty securing the loan, up to the maximum policy limits set under the National Flood Insurance Program, or as otherwise equired by Lender and to maintain such insurance for the term of the loan. ion of Proceeds. Grantor shall promptly notify Lender of any loss or damage to the Property. Lender may make proo of loss if fails to do so within fifteen (15) days of the casualty. Whether or not Lender's security is impaired, Lender may, t Lender's electio , receive and retain the proceeds of any insurance and apply the proceeds to the reduction of the Indebtedness, payment of any lien affecti g the Property, or the restoration and repair of the Property. If Lender elects to apply the proceedS to restoration and rep ir, Grantor shall re air or replace the damaged or destroyed Improvements in a manner satisfactory to Lender. Lender shall, upon satisfact y proof of such e penditure, payor reimburse Grantor from the proceeds for the reasonable cost of repair or restoration if Grantor is no in default under his Mortgage. Any proceeds which have not been disbursed within 180 days after their receipt and which lend r has not commi ed to the repair or restoration of the Property shall be used first to pay any amount owing to lender under this Mortga e, then to payac rued interest, and the remainder, if any, shall be applied to the principal balance of the Indebtedness. If lender holds an proceeds after p yment in full of the Indebtedness, such proceeds shall be paid to Grantor as Grantor's interests may appear. lENDER'S E PENDITURES. If Grantor fails (A) to keep the Property free of all taxes, liens, security interests, encumbrances, and ot er claims, (B) to pro ide any required insurance on the Property, or (C) to make repairs to the Property then Lender may do so. If an action or Loan No: 01 000690oo40Q~6255 MORTGAGE (Continued) 000775 Page 3 proceeding commonced 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 purpos s 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. AI such expenses will become a part of the Indebtedness and, at Lender's option, will (A) be payable on demand; (S) be added to the balance f the Note and be apportioned among and be payable with any installment payments to become due during either (1) the term of any applica e insurance policy; or (2) the remaining term of the Note; or IC) be treated as a balloon payment which will be due and payable at the Note' maturity. The Mortgage also will secure payment of these amounts. The rights provided for in this paragraph shall be in addition to any othe rights or any remedies to which Lender may be entitled on account of any default. Any such action by Lender shall not be construed a curing the default so as to bar Lender from any remedy that it otherwise would have had. WARRANT ; DEFENSE OF TITLE. The following provisions relating to ownership of the Property are a part of this Mortgage: Title. rantor warrants that: (a) Grantor holds good and marketable title of record to the Property in fee simple, free and clear of all liens and en umbrances other than those set forth in the Real Property description or in any title insurance policy, title report, or final title opinion issued n favor of, and accepted by, Lender in connection with this Mortgage, and (b) Grantor has the full right, power, and authority to execut and deliver this Mortgage to Lender. Defens of Title. Subject to the exception in the paragraph above, Grantor warrants and will forever defend the title to the Property against the la ul claims of all persons. In the event any action or proceeding is commenced that questions Grantor's title or the interest of Lender under is 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 Granto will deliver, or cause to be delivered, to Lender such instruments as Lender may request from time to time to permit such particip tion. Compli nce With laws. Grantor warrants that the Property and Grantor's use of the Property complies with all existing applicable laws, ordinan es, and regulations of governmental authorities. Surviva of Promises. All promises, agreements, and statements Grantor has made in this Mortgage shall survive the execution and delivery of this ortgage, shall be continuing in nature and shall remain in full force and effect until such time as Grantor's Indebtedness is paid in full. CONDEMN TlON. The following provisions relating to condemnation proceedings are a part of this Mortgage: Procee ings. If any proceeding in condemnation is filed, Grantor shall promptly notify Lender in writing, and Grantor shall promptly take such s eps as may be nocessary 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 del ver or cause to be delivered to Lender such instruments and documentation as may be requested by Lender from time to time to permit uch participation. Applic ion of Net Proceeds. If all or any part of the Property is condemned by eminent domain proceedings or by any proceeding or purcha e 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 Ind btedness or the repair or restoration of the Property. The net proceeds of the award shall mean the award after payment of all reason ble costs, expenses, and attorneys' fees incurred by Lender in connection with the condemnation. IMPOSITIO OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating to governmental taxes, fees and ch rges are a part of this Mortgage: Curren Taxes, Fees and Charges. Upon request by Lender, Grantor shall execute such documents in addition to this Mortgage and take whate er other action is requested by Lender to perfect and continue Lender's lien on the Real Property. Grantor shall reimburse Lender for all tax s, as described below, together with all expenses incurred in recording, perfecting or continuing this Mortgage, including without limitati n 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 Grantor which Grantor is authorized or required to deduct from payme ts on the Indebtedness secured by this type of Mortgage; (3) a tax on this type of Mortgage chargeable against the Lender or the holder f the Note; and (4) a specific tax on all or any portion of the Indebtedness or on payments of principal and interest made by Granto . Subse ent Taxes. If any tax to which this section applies is enacted subsequent to the date of this Mortgage, this event shall have the same fect 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 rantor 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 GREEMENT; FINANCING STATEMENTS. The following provisions relating to this Mortgage as a security agreement are a part of this Mortga e: Securit 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. Securit Interest. Upon request by Lender, Grantor shall take whatever action is requested by Lender to perfect and continue Lender's securit interest in the Personal Property. In addition to recording this Mortgage in the real property records, lender may, at any time and withou further authorization from Grantor, file executed counterparts, copies or reproductions of this Mortgage as a financing statement. Granto shall reimburse Lender for all expenses incurred in perfecting or continuing this security interest. Upon default, Grantor shall not remov , sever or detach the Personal Property from the Property. Upon default, Grantor shall assemble any Personal Property not affixed to the roperty in a manner and at a place reasonably convenient to Grantor and Lender and make it available to Lender within three (3) days a ter receipt of written demand from Lender to the extent permitted by applicable law. Addre es. The mailing addresses of Grantor (debtor) and Lender (secured party) from which information concerning the security interest grante by this Mortgage may be obtained (each as required by the Uniform Commercial CQde) are as stated on the first page of this Mortg e. FURTHER SSURANCES; ATTORNEY-IN-FACT. The following provisions relating to further assurances and attorney-in-fact are a part of this Mortgage: loan No: 01 0006900040~i::6ZSS MOh I \.:u'\ùE (Continued) 000776 Page 4 Further Assurances. At any time, and from time to time, upon request of Lender, Grantor will make, execute and deliver, or wi I cause to be mad, executed or delivered, to Lender or to Lender's designee, and when requested by Lender, cause to be filed, recorded, refiled, or rerecor ed, as the case may be, at such times and in such offices and places as Lender may deem appropriate, any and all such ortgages, deeds f trust, security deeds, security agreements, financing statements, continuation statements, instruments of further ssurance, certific tes, and other documents as may, in the sole opinion of Lender, be necessary or desirable in order to effectuate, comple ,perfect, continu , or preserve (1) Grantor's obligations under the Note, this Mortgage, and the Related Documents, and (2) th liens and securit interests created by this Mortgage as first and prior liens on the Property, whether now owned or hereafter acquired Grantor. Unless rohibited by law or Lender agrees to the contrary in writing, Grantor shall reimburse Lender for all costs and expenses ncurred in connec ion with the matters referred to in this paragraph. Attorne -in-Fact. If Grantor fails to do any of the things referred to in the preceding paragraph, Lender may do so for and in t Grantor and at Grantor's expense. For such purposes, Grantor hereby irrevocably appoints Lender as Grantor's attorney-in-f purpos of making, executing, delivering, filing, recording, and doing all other things as may be necessary or desirable, in Le opinion to accomplish the matters referred to in the preceding paragraph. name of ct for the der's sole FULL PERF MANCE. If Grantor pays all the Indebtedness when due, and otherwise performs all the obligations imposed upon Gra tor under this Mortga e, Lender shall execute and deliver to Grantor a suitable satisfaction of this Mortgage and suitable statements of term in a ion of any financing st tement on file evidencing Lender's security interest in the Rents and the Personal Property. Grantor will pay, if pe mitted by applicable la ,any reasonable termination fee as determined by Lender from time to time. EVENTS OF EFAUL T. At Lender's option, Grantor will be in default under this Mortgage if any of the following happen: Payme t 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 ins rance, or any oth r payment necessary to prevent filing of or to effect discharge of any lien. Break ther Promises. Grantor breaks any promise made to Lender or fails to perform promptly at the time and strictly in t e manner provide in this Mortgage or in any agreement related to this Mortgage. Default in Favor of Third Parties. Should Grantor default under any loan, extension of credit, security agreement, purchas or sales agreem nt, or any other agreement, in favor of any other creditor or person that may materially affect any of Grantor's p operty or Grantor s ability to repay the Indebtedness or Grantor's ability to perform Grantor's obligations under this Mortgage or a y related docum nt. False S atements. Any representation or statement made or furnished to Lender by Grantor or on Grantor's behalf under this M rtgage or the Rei ted Documents is false or misleading in any material respect, either now or at the time made or furnished. Defecti e Collateralization. This Mortgage or any of the Related Documents ceases to be in full force and effect (including fail re of any collater I document to create a valid and perfected security interest or lien) at any time and for any reason. Death Insolvency. The death of Grantor, the insolvency of Grantor, the appointment of a receiver for any part of Grantor's pro erty, any assign ent for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any ban ruptcy or insolve cy laws by or against Grantor. Taking f the Property. Any creditor or governmental agency tries to take any of the Property or any other of Grantor's propert in which Lender as a lien. This includes taking of, garnishing of or levying on Grantor's accounts with Lender. However, if Grantor isputes in good fa th whether the claim on which the taking of the Property is based is valid or reasonable, and if Grantor gives Lender wri ten notice of the laim and furnishes Lender with monies or a surety bond satisfactory to Lender to satisfy the claim, then this default pro ision will not app y. f Other Agreement. Any breach by Grantor under the terms of any other agreement between Grantor and Lender at is not within any grace period provided therein, including without limitation any agreement concerning any indebtednes or other of Grantor to Lender, whether existing now or later. ffecting Guarantor. Any of the preceding events occurs with respect to any guarantor, endorser, surety, or accommod tion party f the Indebtedness or any guarantor, endorser, surety, or accommodation party dies or becomes incompetent, or r vokes or dispute 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 manner satisfac ory to Lender, and, in doing so, cure any Event of Default. Insecuri y. lender in good faith believes itself insecure. 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 0 the same provisio of this Mortgage within the preceding twelve (12) months, it may be cured if Grantor, after receiving written notice fr m lender demand ng cure of such default: (1) cures the default within fifteen (15) days; or (2) if the cure requires more than fifteen 15) days, immedi tely initiates steps which lender deems in lender's sole discretion to be sufficient to cure the default and thereafter con inues and comple s all reasonablo and necessary steps sufficient to produce compliance as soon as reasonably practical. RIGHTS AN REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default and at any time thereafter, lender, at lender's 0 tion, may exercise anyone or more of the following rights and remedies, in addition to any other rights or remedies provided by law: Acceler te Indebtedness. Lender shall have the right at its option without notice to Grantor to declare the entire Indebtedness i mediately due and payable, including any prepayment penalty which Grantor would be required to pay. UCC Re edics. With respect to all or any part of the Personal Property, lender shall have all the rights and remedies of a sec red party under t e Uniform Commercial Code. Collect ents. lender shall have the right, without notice to Grantor, to take possession of the Property, including during the pe dency of foreclos re, whether jUdicial or non-judicial, and collect the Rents, including amounts past due and unpaid, and apply the net proc eds, over and ab ve lender's costs, against the Indebtedness. In furtherance of this right, lender may require any tenant or other u er of the Propert to make payments of rent or use fees directly to lender. If the Rents are collected by Lender, then Grantor irrevocably esignates lender s Grantor's attorney-in-fact to endorse instruments received in payment thereof in the name of Grantor and to negotiate the same and coli ct the proceeds. Payments by tenants or other users to lender in response to Lender's demand shall satisfy the obli ations for loan No: 01 0006900040.g~~6Z55 MORTGAGE (Continued) 000777 Page 5 which he payments are made, whether or not any proper grounds for the demand existed. lender may exercise its rights under this subpar graph either in person, by agent, or through a receiver. Appoin 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 0 protect and preserve the Property, to operate the Property preceding foreclosure or sale, and to collect the Rents from the Pro pert 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 exceed the Indebtedness by a substantial amount. Employment by lender shall not disqualify a person from serving as a receiver. Judicia Foreclosure. lender may obtain a jUdicial decree foreclosing Grantor's interest in all or any part of the Property. Nonjud ial 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. Deficie cy Judgment. If permitted by applicable law, lender may obtain a judgment for any deficiency remaining in the Indebtedness due to lend r after application of all amounts received from the exercise of the rights provided in this section. Tenanc at Sufferance. If Grantor remains in possession of the Property after the Property is sold as provided above or lender otherwise becom s entitled to possession of the Property upon default of Grantor, Grantor shall become a tenant at sufferance of lender or the purcha er 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 Propert immediately upon the demand of lender. Other medies. 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, Grantor hereby waives any and all right to have the Property marshalled. In exer ising 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 separat sales. lender shall be entitled to bid at any public sale on all or any portion of the Property. Notice f 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 w ich any private sale or other intended disposition of the Personal Property is to be made. Reasonable notice shall mean notice given a 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 sal of the Real Property. Electio of Remedies. All of lender's rights and remedies will be cumulative and may be exercised alone or together. An election by lender 0 choose anyone remedy will not bar lender from using any other remedy. If lender decides to spend 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. Attorne s' 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 involve , 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 rotection 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, howev r subject to any limits under applicable law, lender's attorneys' fees and lender's legal expenses whether or not there is a lawsuit, includin 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 c sts, in addition to all other sums provided by law. NOTICES. ny notice required to be given under this Mortgage, including without limitation any notice of default and any notice of sale shall be given in writ ng, and shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise required by law), when deposited w th a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered m iI postage prepaid, directed to the addresses shown near the beginning of this Mortgage. All copies of notices of foreclosure from the holder 0 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 ay change his or her address for notices under this Mortgage by giving formal written notice to the other person or persons, specifying t at 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 Gra tor's current address. Unless otherwise provided or required by law, if there is more than one Grantor, any notice given by Lender to any Grant r is deemed to be notice given to all Grantors. It will be Grantor's responsibility to tell the others of the notice from lender. MISCEllAN OUS PROVISIONS. The following miscellaneous provisions are a part of this Mortgage: Amend ents. 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 who eve 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 provisio s of this Mortgage. Governi g law. With respect to procedural matters related to the perfection and enforcement of lender's rights against the Property, this Mortga e will be governed by federal law applicable to lender and to the extent not preempted by federal law, the laws of the State of Wyomi g. In all other respects, this Mortgage will be governed by federal law applicable to lender and, to the extent not preempted by federal ew, the laws of the State of Utah without regard to its conflicts of law provisions. However, if there ever is a question about whethe any provision of this Mortgage is valid or enforceable, the provision that is questioned will be governed by whichever state or federal aw would find the provision to be valid and enforceable. The loan transaction that is evidenced by the Note and this Mortgage has been ap lied for, considered, approved and made, and all necessary loan documents heve been accepted by lender in the State of Utah. Choice f Venue. If thore is a lawsuit, Grantor agrees upon lender's request to submit to the jurisdiction of the courts of SALT lAKE County, State of Utah. Joint a Several liability. All obligations of Grantor under this Mortgage shall be joint and several, and all references to Grantor shall mean each an every Grantor. This means that each Grantor signing below is responsible for all obligations in this Mortgage. No Wai er by Lender. Grantor understands Lender will not give up any of lender's rights under this Mortgage unless lender does so in loan No: 01000690004 MOh I uHGE (Continued) 000778 Page 6 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 writi g to give up one of lender's rights, that does not mean Grantor will not have to comply with the other provisions of thi Mortgage. Granto also understands that if lender does consent to a request, that does not mean that Grantor will not have to get lende 's consent again if the situation happens again. Grantor further understands that just because lender consents to one or more of Grantor' requests, that do s not mean lender will be required to consent to any of Grantor's future requests. .Grantor waives presentment, emand for payme t, protest, and notice of dishonor. Grantor waives all rights of exemption from execution or similar law in the Property, nd Grantor agrees hat the rights of lender in the Property under this Mortgage are prior to Grantor's rights while this Mortgage remains in ffect. ility. If a court finds that any provision of this Mortgage is not valid or should not be enforced, that fact by itself will no mean that the res of this Mortgage will not be valid or enforced. Therefore, a court will enforce the rest of the provisions of this Mortga e even if a provisi n 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 Pro time h d by or for the benefit of lender in any capacity, without the written consent of lender. Succes ors and Assigns. Subject to any limitations stated in this Mortgage on transfer of Grantor's interest, this Mortgage shall be binding upon a d inure to the benefit of the parties, their successors and assigns. If ownership of the Property becomes vested in a p rson other than G ntor, lender, without notice to Grantor, may deal with Grantor's Successors with reference to this Mortgage and the In ebtedness by way of forbearance or extension without releasing Grantor from the obligations of this Mortgage or liability under the Indebte ess. Time is of the Essence. Time is of the essence in the performance of this Mortgage. Waiver f Homestead Exemption. Grantor hereby releases and waives all rights and benefits of the homestead exemption laws f the State of Wyo ing as to all Indebtedness secured by this Mortgage. DEFINITION . The following words shall have the following meanings when used in this Mortgage: Borrow r. The word "Borrower" means HEATH B MACKEY and KRIST! A MACKEY and includes all co-signers and co-makers igning the Note a d all their successors and assigns. Environ ental laws. The words "Environmental laws" mean any and all state, federal and local statutes, regulations and rdinances relating to the protection of human health or the environment, including without limitation the Comprehensive Environmental Response, Compe sation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERClA "), the Superfund Amend ents and Reauth rization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 18 1, et seq., the Re ource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable state or federal laws rules, or regulati ns adopted pursuant thereto. Event f Default. The words "Event of Default" mean any of the events of default Set forth in this Mortgage in the event of default section of this Mortgage. Granto The word "Grantor" means HEATH B MACKEY and KRISTI A MACKEY. Guaran y. The word "Guaranty" means the guaranty from guarantor, endorser, surety, or accommodation party to lender including withou limitation a guaranty of all or part of the Note. Hazard us Substances. The words "Hazardous Substances" mean materials that, because of their quantity, concentration 0 physical, chemic I or infectious characteristics, may cause or pose a present or potential hazard to human health or the environ ent when improp rly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handled. The words 'Hazardous Substa ces" are used in their very broadest sense and include without limitation any and all hazardous or toxic substances, aterials or waste s defined by or listed under the Environmental laws. The term "Hazardous Substances" also includes, without limitation, petroleum and pet oleum by-products or any fraction thereof and asbestos. Improv ments. The word "Improvements" means all existing and future improvements, buildings, structures, mobile homes affi ed on the Real Pr perty, facilities, additions, replacements and other construction on the Real Property. Indebte ness. The word "Indebtedness" means all principal, interest, and other amounts, costs and expenses payable under t e Note or Related Documents, together with all renewals of, extensions of, modifications of, consolidations of and substitutions for t e Note or Related Documents and any amounts expended or advanced by lender to discharge Grantor's obligations or expenses incurred b 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 ZIONS FIRST NATIONAL BANK, its successors and assigns. The words "successors or assi ns" mean any per on or company that acquires any interest in the Note. Mortga e. The word "Mortgage" means this Mortgage between Grantor and lender. Note. he word "Note" means the promissory note dated January 16, 2007, in the original principal amount of $12 .402.00 from G ntor to lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and su stitutions for the promissory note or agreement. The maturity date of this Mortgage is January 15, 2037. NOTICE TO GRANTOR: HE NOTE CONTA NS A VARIABLE INTEREST RATE. Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now 0 hereafter y Grantor, and now or hereafter attached or affixed to the Real Property; together with all accessions, parts, and additi ns to, all ents of, and all substitutions for, any of such property; and together with all proceeds (including without limitation all insurance and refunds of premiums) from any sale or other disposition of the Property. Propert . The word "Property" means collectively the Real Property and the Personal Property. Real Pr perty. 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, envi onmental agreem nts, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other in truments, agreem nts and documents, whether now or hereafter existing, executed in connection with the Indebtedness. Rents. he word "Rents" means all present and future rents, revenues, income, issues, royalties, profits, and other benefits de ived from the Pro erty. loan No: 01000690004014906 MORTGAGE (Continued) 000779 Page 7 ... .:) EACH GRA TOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE. AND EACH GRANTOR AGREES TO ITS TERMS. GRANTOR: ~i~ INDIVIDUAL ACKNOWLEDGMENT ) ) SS ) DONNA BOOTH - NOTARY PUBLIC COUNTY OF LINCOLN STATE OF WYOMING MY COMMISSION EXPIRES SEPT. 20. 2007 LASER PRO LltnOlno. v.. 6.J2.I03 Cop'. H..t.... fin....cial SoIulion_, II1c. ISS7. 2007. All "lghU fI.....vllo. . WV/tJ' C:\CFl\lPl\OOJ.FC HI·233190 f'R.ZVETHEl