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HomeMy WebLinkAbout927906 000456 RECORDATION REQUESTED BY: 1 st Bank Alpine 79 Highway 89 P.O. Box 3110 Alpine, WY 83128 WHEN RECORDED MAil TO: 1st Bank Alpine 79 Highway 89 P.O. B(Jx 3110 Alpine, WY 83128 SEND TAX NOTICES TO: 1st Bank Alpine 79 Highway 89 P.O. Box 3110 Alpine. WY 83128 RECEIVED 3/27/2007 at 11 :49 AM RECEIVING # 927906 BOOK: 652 PAGE: 456 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY -'\.\ CONSTRUCTION MORTGAGE THIS MORTGAGE dated March 16, 2007, Is made and executed between CRAIG W. SMITH and ROBERT D HUNT, whose address is PO BOX 4242, BEDFORD, WY 83112 (referred to below as "Grantor") and 1st Bank, whose address Is 79 Highway 89, P,O. Box 3110. Alpine, WY 83128 (referred to below as "Lender"). GRANT OF MORTGAGE. For valuable consideration, Grantor mortgages and conveys to Lender all 01 Grantor's right. title, and interest in and tu the following. described real property, together with all existing or subsequently erected or affixed buildings, improvements and fixtures; all ~a.se~ents: nghts of way, and appurtenances; all water, water rights. watercourses and ditch rights (including stock in utilities with ditch or irrigation nghts); and all other rights, royalties, and profits relating to the real property. including without limitation all minerals oil gas ueothermal and similar matters, (the "Real Property") located in LINCOLN County, State of Wyoming: ' , , LOT 28-L-2 OF THE ROLLING HILLS FIRST ADDITION TO THE CITY OF KEMMERER, LINCOLN COUNTY WYOMING AS DESCRIBED ON THE OFFICIAL PLAT THEREOF. ' The Real Property or its address is commonly known as LOT 28 ROLLING HILLS SUBDIVISION KEMMERER WY 83101. ' , Grantor presently assigns to Lender all of Grantor's right, title, and interest in and to all present and future leases 01 the Pruperty and all Rents from the Property. In addition, Grantor grants to Lender a Uniform Commercial Code security interest in thQ 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 IBI PERFORMANCE OF ANY AND All OBLIGATIONS UNDER THE NOTE. THE RELATED DOCUMENTS. AND THIS MORTGAGE, THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: PAYMENT AND PERFORMANCE, Except as otherwise provided in this Mortgage, Granlor shall pay to lender all amounts secured by this Mortgage as they become dua and shall strictly perform all of Grantor's obligations under this Mortgage. CONSTRUCTION MORTGAGE. This Mortgage is II "construc.tlon mortgage" for the purposes of Sections 9·334 and 2A-309 of the UniforrT1 Commercial Code, as those sections have been adopted by the State of Wyoming. POSSESSION AND MAINTENANCE OF THE PROPERTY. Grantor agrees that 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 {11 remain in possession and control of the Property; 121 use, operate or manage the Property; and (3) collect the Rents from the Property. Duty to Maintain, Grantor shall maintain the Property in tenantable condition and promptly perform all repairs, replacements, and maintemmce necessary to preserve its value. Compliance With Environmental Laws. Grantor reprasents and warrants to Lender that: (1) During the period of Grantor's ownership of the Property, there has been no use, generation, manufacture. storage, treatment, disposal, release or threatened release of Dny Hazardous Substance by any person on. under, about or Irom 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, (al any breach or violation of any Environmental Laws, (bl any use, generation, manufacture, storage, treatment, disposal, release or threatened release of any H¡¡zardous Substance on, undor, about or from the Property by any prior owners or occupants of the Property, or leI any actual or threatened litigation or claims of Dny kind by any person relating to 'such matters; and (3) Except as previously disclosed to and acknowledged by Lender in writing, (a) neither Grantor nor any tenant. contractor. agent or other authorized user oftha PropertY shall use, generate, manufacture, store, lreat. dispose of or release any Hazardous Substance on, under, about or from the Property; and (bJ any such activity shall be conducted in compliance with all applicable federal, state, and locallews, re{lulations 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 determino compliance of the Property with this section of the Mortgage. Any Inspections or tests made by Lender shall be lor 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 her6in are based on Grantor's due diligence in investigating the Property for Haz3rdous Substances. Grantor hereby In releases and waives any future claims against Lender for indemnity or contributIOn in tho event Grantor becomes liable for cleanup or other costs under ðny such laws; and (21 agrees to indemnify, delend, and hold harmloss 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 e 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 halle been known to Grantor. The provisions of this section of the Mortgage, including the obligation to indemnify and defend, shall survive the payment 01 the Indebtedness and the satisfaction and reconveyance of the Hen of this Mortgage and sholl not be affected by Lender's acquisition of any interest in the Property, whether by foreclosUre or otherwise. ' Nuisance, Wute. Grantor shall not cause, conduct \if permit any nuisance nor commit, permit, or su1fer any stripping 01 or wast'b-,().n or to the Property or any portion of the Property. Without limiting the generaHty of the foregoing, Grantor will not remavo, or grant to any' other party the right to remove, any timber, minerals (including 011 and oasJ. 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 remov¡¡1 of any Improvements, Lender may require Grantor to make arrangemiimt5 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 1.0 attend to l"nder'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, inc1uding without limitation, the Americans With Disabilities Act. 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 lellve unattended the Property, Grantor shall do aU other acts, in addition to those Loan No: 761001543 0927906 MORTGAGE (Continued) 000457 Page 2 " 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 Indobtedness are to be usod to construct or complete construction of any Improvements on the Property, the Improvements sholl be completed no later than the maturity date of the Note (or such earlier date as Lender may reasonably establishl and Grantor shall pay in full ¡III costs and expenscs 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 Mortg?ge shall have priority over all possible liens, Including those of material suppliers and workmen. Lender may require, among other things, tt1i1t dlsburs,emont requests be supported by receipted bills, expense ¡¡ffldavits¡ waivers of liens. construction progress reports, and slJr;h 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 taxe$ and assessments not due as further spacified 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 oblìgatlon to pay, so long as Lender's intorest in the Property is not jeopardized. If a lien arises or is filed as a result of nonJJayment, Grantor shall within fifteen (15 days after the lien arises or, if a lien is filed, within fifteen fl 5) days after Grantor has notice of the fiUng, 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 reasonable attorneys' fees. or other chargos that could accrue as a result of a foreclosure or sale under the Uen. 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 dcmand 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 end 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 tho 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 II part of this Mortgage: Maintenance of Insurance. Grantor shall procure and maintain policies of fire insurance with standard extended cover ago endorsements on a replacement busis for the full insurable value covering all Improvements on thfJ Real Property in an amount sufficient to avoid applicatIOn 01 any coinsurance clause, and with a standard mongagee clause in favor of Lender. Grantor shllll also procure and maintain comprehensive general liability insurance in such coverage amounts as Lender may request with Lender being named as additIOnal insureds in such liability insurance policies. Additionally, Grantor shall maintain such other insurance, including but not limited to hazard, business interruþtion and boiler insurance as Lender may require. 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 def¡¡ult of Grantor or any 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, within 45 days after notice is givon by Lendor that the Prop(Jrly is I'Jcated in a special flood hazard area, 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 thc term of the loan. Application of Proceeds. Grantor shall promptly notify Lender of any loss or damage to the Property If the estimated cost of repair or replacement exceeds $1,000.00. Lender may make proof of loss if Grantor fails to do so within fifteen (15) days of the ca5ualty. 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 shaH repair or reJ)lace the damaged or destroyed Improvements in II 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 1 80 days after thair recaipt 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 eccrued 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 shilll be paid to Grantor as Grantor's interests may appear. LENDER'S EXPENDITURES, If any action or proceeding is commenced that would materially affect Lender's interest in the Property or if Grantor fails to comply with any provision of this Mortgage or any Related Documents, including but not limited to Grantor's failure to discharge or pay when due any amounts Grantor is required to discharge or pay under this Mortgage or any Related Documents, Lender on Grantor's behalf may (but shall not be obligated tol take any action that Lendor deems appropriate, including but not limited to discharging or paying all taxes, liens, securíty interests, encumbrances and other cl¡¡it'lla, ¡It any time levied or placed on the Property and paying all costs for insuring, maintaining and preserving the Property. All such expenditures incurred or paid by Lender for such purposes will then benr Inlerest at the rate charged undor the Note from the dato incuned or paid by Lender to the dat.e 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; (8) be added to the balance of the Note and be apportioned among and be payublo with any installment payments to become due during either (1) the term of any applicable insurance policy; or {21 the remaining term of the Note; or (C) be treated as a balloon payment which will be due and payable et the Note's maturitY. The Mortgage also wìll secure payment of these amounts. Such right shall be in addition to all other rights and remedies to which Lender may be entitled upon Default. WARRANTY; DEFENSE OF TITLE, The following provisions relating to ownership of the Property are a part of this Mortgage: Title. Grantor wan ants that: (a) Grantor holds good and marketable title of record to the Property in fee simple, freo and clear of all Hens and encumbrances other than those set forth in the Real Property clescription 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 (bl Grantor has the full righl. power, and authority to execute and dehver this Mortgage to Lender. DefenslI of Title. Subject to tho exception in the paragraph above, Grantor warrants and will forever defend the titlo to tha Property against the lawful claims of all pef$ons. 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 proceed!ng, 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 Lendf;lr such instruments as Lender may request from time to time to permit such participation. Compliance With Laws. Grantor warrants that thl:! Property and Grantor's use of the Property complies with all existing applicable luws. ordinances, and regulations of governmental authorities. Survlv<ll of Representations IInd Warranties. All representations, warranties, and agreements made by Grantor in this ~ortgage shall survive the execution and delivery of this Mortgage, shall be continuing in nature, and shall remain in full force and effect until such tIme as Grantor's Indebtedness shall be paid in full. CONDEMNATION. The following provisions relating to condemnation proceedings are a part of this Mortgage: Proceedings. If any proceeding in condemnation is file.d, Grantor shall promptly notify Lender in writing, and Grantor shall promp.tIv take such steps as may be necessary to defend the action and obtain the award. Grantor may be the nomlllal party In such ,proceedlllg, but Lender shall be entitled to participate in the proceeding and to be represented In the proceeding by counsel of Its own ChOIC~, and Grantor will deliver or cause to be delivered to Lender such instruments and documentation as may be requested by Lender from tune to time to permit such participation. loan No; 761001543 ()927~6 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 not proceeds of the award be applied to the Indebtedness or the ropair or restoration of the Property. The not proceeds of the award shall mean the award after payment of all reasonable costs, expenses, and attorneys' fees incurrod by Lender in connection with the condemnation. IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES, Tho following provisions relating to governmental taxes, fees and charges (lJe 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 tilke 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, liS doscribed below, together with (111 6.x.penses 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: (11 a specific tax upon this type of Mortgage or upon all or any part of the Indebtedness secured by this Mortgage; (Z) a specific tax on Grantor which Grantor is authorized or required to deduct from payments on the Indebtedness secured by this typo of Mortgage; 131 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 Ind~btedness or on payments of principal and interest made by Grantor, 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 Lendor may exercise any or all of its available remedies for an Event of Default as provided below unless Grantor either (11 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, S~CURITY AGREEMENT; FINANCING STATEMENTS, The following provisions relating to this Mortgage as a security agreement are a part of this Mortgage: Security Agreement, This instrument shall constitute a Security Agreement to the extent any of the Property constitutes fixtures, and Lender shall have all of the rights of a socured 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 Lendor's security interest in the Rents and Personal Property. In addition to recording this Mortgage in the real property records, LeMer may, at any time and without further authorization from Grantor, file executed counterparts. copies or reproductions of this Mortgage as a financing statement. Grantor shan 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 I;It 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 leach as required by the Uniform Commercial Codel are as slAted on the first pane of this Mortgage. FURTHER ASSURANCES; ATTORNEy-tN-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 timo, upon request of Lender, Grantor will make, execute and deliver. or will couse 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) Grantor's obligations under the Note, this Mortgage, and the Related Documents, and 121 the liens and security interests created by this Mortgage as first and prior liens on the Property, whether now owned or hereafter acqulled by Grantor. Unless prohibited by law or lender agrees to the contrary ¡nwriting, Grantor shall reimburse Lender for all costs and expenses incurred in connection with the matters referred to In this paranraph. 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 the name of Grantor end at Grantor's expanse. For such purposßs, Grantor hereby Irrevocably appoints Lender as Grantor's attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and doing aU other things as may be necessarv or desirable, in Lendor's sole opinion, to accomplish the matters referred to in the preceding paragraph. FULL PERFORMANCE, If Grantor pays all the Indebtedness when due, and otherwise performs all the obligations imposed 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 me evidencing Lender's security interest in the Rents and the Personal Property. Grantor will pay, jf permitted by applicable law, any reasonable terminotion fee as determined by lender from time to time, EVENTS OF DEFAULT, Each of the following, at lender's Olltion, shall constitute an Event of Default undM this Mortgage: Payment Default, Grantor fails to make any payment when due under the Indebtedness, Default on Other Payments. Failure of Grantor within the time required by this Mortgage to make any payment for taxes or insurance, or any other payment necessary to prevent filing of or to effect discharge of any lien. Other Defaults. Grantor fails to comply with or to perform any other term, obligation, covenant or condition contained in this Mortgage or in My of the Related Documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Grantor. Default In Favor of Third Parties, Should Grantor default under any loan. extension of credit, security agreement, purchase or sales agreement. or any other agreement, in favor of any other creditor or person that may materially affect any of Grantor's property or Grantor's ability to repay the Indebtedness or Grantor's ability to perform Grantor's obligations under this Mortgage or any related document, False Statements. Any warranty, representation or statement made or furnished to lender by Grantor or on Grantor's behalf under this Mortgage or the Related Documents is false or misleading in any malerial respect. either now or at the time made or furnished or becomes false or misleading at any time thereafter, Defective Collateralization, This Mortgage or any of the Related Documents ceases to be in full force and effect (including failure of any t:ollatoral document to create a valid and perfected security interest or ¡¡en) at any time and for any reason, Death or Insolvency, The death of G(antor, the ins(¡lvency of Grantor, the appointment of a receiver for any part of Grantor's property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Grantor, Creditor or Forfeiture Proceedings, Commencement of foreclosure or forfeiture pröceedlngs, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Grantor or by any governmental agency against any property securing the Indebtedness. This includes a garnishment of any of Grantor's accounts, Including deposit ,accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Grantor as to the validity or reasonableness of the claim which is the basis of tho creditor or forfeiture proceeding and if Granlor gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by lender, in its sole discretion, as being nn adequate reserve or bond for the dispute. Breach of Other Agreement, Any breach by Grantor under the terms of any other agrearnent betwoen Grantor and Londer that is not remedied within any grace period provided therein, including without limitation any agreement concerning any indebtedness or other obligation of Grantor to lender, whether existing now or lalor. 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. MORTGAGE ( Continued) 000458 Page 3 ,....-. '''H_·.y",,,,,..~·_,m'N''-M,,.'m''. loan No: 761001543 O~Z7906 MORTGAGE (Continued) 000459 Page 4 Adverse Change, A material adverse change occurs in Grantor's financial condition, or Lender believes the prospect of payment or performance of the Indebtedness is impaired. Insecurity, Lender In good faith believes itself insecure. RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default and at any time thereafter, Lender, at Lender's option, may 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 ¡\Od 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 Commercial Code. Collect Rents, Lender shall have the right, without notice to Grantor, to take possession of the Property, including during the pendency of foreclosure, whether judicial or non-judicial, and collect the Rents, including amounts past due end 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 01 the Property to make payments of rent or use fees directly 10 Lender. If the Ren1s are collected by Lender, thon Grantor irrevocably designates Lender ns 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 U6ers to Lender in response to Lendor's demand shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the demand existed. Lender may exereise its rights under this subparagraph either in person, by agent, or through a receiver. Appoint Receiver. Londer 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 colle<:t 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 exceeds the Indebtedness by II substantial aOlount, Employment by Lender shnll not disqualify a person from serving asa receiver. JudicIal Foreclosure. Lender may obtain a Judicia! docree 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 salo" or "advertisement nnd sale" foreclosura as provided by statute, Deficiency Judgment. If permitted by applicable law, Lender may obtain II judgment for any deficiency remaining in the Indebtudness duo to Lender aftor 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 shan, at Lender's option, either (1} pay a reasonable rental for the use of the Propeny. or (21 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 avaìlable at law or in equity. Sale of the Property. Tö the extent permitted by appIJcable law, Grantor hereby waives any and all right to have the Property marshalled. In exercising its rights and remedies, Lender shall be free to sell all or any part of the Property together or separately, in one sale or by soparate sales. Lendor shall be entitled to bid at any public sale on all or any portion of the Property. Notice of Sale, Lender shall 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. Heasonable notice shall mean notice given at least ten (1 0) days before tho 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, Election by Lender to pursue any remedy shall not exclude pursuit 01 any othor remedy, and an election to make expenditures or to take action to perform an obli!)éltion of Grantor under this Mortgage, after Grantor's failure 10 perform, shall not affect Lender's right to declare a default and exercise its remedies. Nothing under thi6 Mortgage or otherwise shall be construed so as, to limit or rastrict the rights and remedies available to Lender following an Event of Default, or in any way to limit or rostrict the rights and ability of Lender to proceed directly against Grantor and/or against any other co-maker. guarantor, surety or endorser andlor to proceed against any othef collateral directly or Indirectly securing the Indebtedness. 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 8um as the court may adjudge reasonable ¡lS attorneys' fees at trial and upon any appeal. Whe1her or nut uny court action Is Involved, and to the extent not prohibited by law, all reasonable expenses Lender incurs that in Lender's opinion ara 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, however subject to any limits under applicable law, Lender's reasonable attorneys' fees and Lender's legal expenses whether or not there is a lawsuit, includIng reasonable attorneys' fees and expenses for bankruptcy procaedings (including efforts to modify or vacate any automatic stay or injunction), appeals. and any anticipated post-judgment collection services. the cost of searching records, obtainin!) title reports (including foreclosure reports), surveyors' reports, and appraisal fees and ti11e insurance, to the extent permitted by !Ipplicable 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 roquired by lawl, when deposited with a nationally recognized overnight courier, or, ìI 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 caples of notices of foreclosure from the holder of any lien which has príority over this Mortgage shall be sent to Lender's address, as shown near the beginning ot this Mortgage. Any party may change its address for notices under this Mortgage by giving formal written notice to the other parties, specifying tl1at the purpose of the notice is to change the party's address. For notice purposes, Grantor agrees to keel) Lender informed at ell times of Grantor's current address. Unless otherwise provided or required by law, if thore is more than one Grantor, IIny notice given by Lender to any Grantor is deemed to be notice givonto all Grantors. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Mortgage: Amendments, This Mortç¡age, together with any Related Documents, constitutes the entire undarstanding and agreement of the parties as to the matters set forth in this Mortgage. No alteration of or amendment to thIs Mortgage shall be eff<¡ctive unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Annual Reports, If the Property is used for purposes other than Grantor's residence, Grantor shall furnish to Lender, upon request, U certified statement of net operating income received from the Property during Grantor's previous fiscal year in such form and detml as Lender shall require. "Net operating income" shall mean all cash receipts from the Property less all cash expenditures made in connection with the operation of the Property. 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. ThIs Mortgage will be governed by federal law applicable to Lender and, to the extent not preempted by f·ederallaw, the laws of the State of Wyoming without regard to Its conflicts of law provisions, This Mortg..ge has been accepted by lender in the State of Wyoming. Choice of Venue, If there is a lawsuit, Grantor agrees upon Lender's request to submit to the jurisdiction of the courts of Lincoln County, State of Wyoming, Joint and Several Liability. All obligations of Grantor under this Mortgage shall be joint and several, and all references to Grantor shalt moan each and every Grantor. This means that each Grantor signing below is responsible for all obligations in this Mortgage. No Waiver by Lender, Lander shall not be deamed to have waived any rlght6 under this Mortgage unlesS such waiver is givan in writing and signed by Lender. No delay or omission on the part of Lender in exorcising any right shalt operate 85 a waiver of such right or any other right. A waiver by Lender of a proviSion of this Mortgage shall not prejudi.ce or constitute a waiver of Lender's right otherwise. to demand strict compliance with that provision or any other provision of this Mortgage. No prior waiver by Lender, nor any course of dealing between Lender and Grantor, shnlt constitute a waiver of any of Lender's rights or of any of Grantor's obUgations ns to any future loan No: 761001543 O~~'¡906 MORTGAGE ( Continued) 000460 Page 5 =-- transactions. Whenever the consent 01 Lender is required under this Mortgage, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and In all cases such consent may be granted or withheld in the sole discretion of Lender. Severability. If a court of competent jurisdiction finds any provision of this Mortgage to be iIIcgol, invalid, or unenforceable as to any person or circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other person or circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal. valid rmd unforceable, If the offending provision cannot be so modified, it shall be considered deleted from this Mortgage. Unless otherwise required by law. the illególlity, invalidity, or unenforceability of any provision of this Mortgage shall not affect the legality, validity or enforceability of any other provision of this Mortgage. Merger. There shall be no merger of the interest or estate created by this Mortgage with any other interest or estate in the PrOI>(!rty 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 uplm and inure to the benefit of the parties, their successors and assigns. II 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 Indebtedness by way of forbearance or extension without releasing Grantor from the obligations of this Mortgage or liability under the Indebtedness. Time is of the Essence, Time is of the essence in the performance of this Mortgage. Waiver of Homestead EJ(emptien. Grantor hereby releases and waives all rights and benefits of the homestead e)(emption laws of the State of Wyoming as to ¡¡nlndebtedness secured by this Mortgage, DEFINITIONS, The following capitalized words and terms shall have the following meanings when used in this Mortgage. Unles9 specifically stated to the contrary, {lll references to dollar amounts shan moan amounts in lawful money of the United States of America. Words and terms usect in the singular shall include the plural, and the plural shall include the singular, as tho context may require. Words and terms not otherwise definod in this Mortgage shall have the meaningsattríbuted to such terms in the Uniform Commercial Code: Borrower. The word "Borrower" means CRAIG W. SMITH and ROBERT D HUNT and includes all co-signers and co·makers signing the Note and all their successors and assigns. De1au1t. The word "Default" means the Default set forth in this Mortgage in the section titled "Default". 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 Comprehonsive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U,S.C, Section 9601, ot seq. ("CERCLA"), the Superfund Amendments and Heauthorization Act of 1986, Pub, L. No. 99-499 ("SARA"I, the Hazardous Materials Transportation Act, 49 U,S.C. Section 1801, ot seq" the Resource Conservation and Recovery Act, 42 V.S.C. SectÎon 6901, ot seq" or other applicable state or federal laws, rules. or regulóltions 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" moans CRAIG W, SMITH and ROBERT D HUNT. 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 thoenvironrnent when improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handled. The words "Hazardous 5ubst¡mcos" 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, withoutlirnitation. petroleum and petroleum by-products or any fraction thereof and ólsbestos. Improvements, The word "Improvements' means all e)(istÎng 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 1 st Bank, its successors and assìgns. Mortgage, The word "Mortgage" means this MQrtgage between Grantor and Lender. Note. The word "Note" means the promissory note dated March 16, 2007, in the original principal amount of $155,848,50 from Grantor 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 September 16, 2007. Personal Property. The words "Personal Property" mean all equipment, 1ixtures, and other articles of personal properlY now or hereafter owned by Grantor, and now or hereafter attached or alli)(ed to the Real Property; together with all accessions, parts, and additions to, all replacements of, and all substitutions for, any of such property; and together with all proceeds (including without limitation 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 "Roal 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, environmenwl agrþ.ements. guaranties, security agreements, mortgnges, deeds of trust. security deeds, collateral rnortgages, 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 futuro rents, revenues, income, Issues, royaltìes. 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. G~ANTO ? '- <:... X ""L.~- RÄ GW. SMITH ~,.-~ ~...............~# R ,.,",,"..~QE!ERT..~~ loan No: 761001543 q t'J2296G INDIVIDUAL ACKNOWLEDGMENT MORTGAGE (Continued) - o~_..<^_.... Page 6 _~"'WA __ STATE OF _lÙJ...IJO-tv\ í rì3-. COUNTY OF n.<J.~Lt1.GfLLtL. __ ....___ DEBBIE DOBSON NOTARY PUBLIC COUNTY OF . STATE OF LINCOLN WYOMING MY COMMISSION EXPIRES APRil 20. 2010 } 55 I On this day before me, the undersigned Notary Public, personally appeared CRAIG W, SMITH. to me known to be the individual described in (lncl who executed the Mortguge. and acknowledged that he or she signed th(~ Mortgage as his or her free and voluntary act and deed. for the uses IlOcI purposes therein mentioned. Given unde\ my hand and official seal this -,."..,.....d..L,. By AJ lJW 0.1J{~~ Notary Public In and for the State Of--LùLf 1m \ \r~ì. (~ day of .íYJClrLh____,_. 20_6.7 ..' Residing at-K kVVì Vì/\tA' -tV l-f'- -;) () - dO ( 0 My commIssion expires INDIVIDUAL ACKNOWLEDGMENT STATEOF__Ç/~fJt4. . .......,.............. ......~......... ) 5S NOTARY PUBLIC LESLIE WEISS MALIK 1483 Newpark Blvd, POBox 981748 Park City, UT 84098 My CommissIon Expires March 27, 2010 STA EO, On this day before me, the undersigned Notary Public, personally appeared ROBERT D . ad in and who executed the Mortgage, and aCknowledged that he or she signed the MortQ¡¡ge as his or her free and voluntary act and deed, for the uses and purposes therein mentioned. M :~~"d'~"'th" J~ d'Y'f~;nf1='20-º'L ___ Not.", P,bll, ,. ..d "'nh. ......, 19T &1,\ My oomm'..'.. up'''' _Q/ J. ~ ___ COUNTY OF,.Sl.:)lhJ21L~___. ~, --~- - _._~~_.._~..,.,....,..___~o;m-~ t.A1U':~ Jlftt) L"'*~" v.'. ~ 3'$ (1('1.004 c::...or t'I<II!J4r¡ h'w\(I¡.¡d 1Þ.'I4'H"''' UII: HI.", 1<:Q1 AI M.gt",t!f l)r,¡ IWId. . WY O'.\U'6fP.-f'J\(hlNI\(l'tU.loIt\( qJ.fC. 1~.M,t)1