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$62,550.00
DEED OF TRUST NOTE
89583 .
RECEIVED
LINOOL,~.,! COU.,',JTY CLERK
03 PFC
, ~Idaho Falls, Idaho
,,,; '-, ::.. ' ,.c.~o~er vv, 2003
FOR VALUE RECEIVED, THE UNDERSIGNED Dean Mondy and Barbara Mondy,
husband and wife (the "Borrower"), promises to Pay to the order of Bank of Idaho, Custodian of the James
B. Sisson, IRA, its successors and assigns (the "Lender") the principal sum of Sixty Two Thousand Five
Hundred Fifty Dollars and no/100 cents ($62,550.00), together with interest on the principal balance of
this Deed of Trust Note (the "Note"), from time to time remaining unpaid, from the date of disbursement
by Lender hereof at the applicable interest rate hereinafter set forth, together with all other sums due
hereunder or under the terms of the Mortgage (as hereinafter defined) in lawful money of the United States
of America which shall be legal tender in payment of all debts at the time of such payment. Bothprincipal
'and interest and all other sums due hereunder shall be payable at the office of Lender at 399 N. Capital
Ave., Idaho Falls, Idaho 83403, or at such other place either within or without the State of Idaho, as
Lender hereof may from time to time designate. Said principal and interest shall be paid over a term, at
the times, and in the manner set forth below, to wit:
1. Payment Provision:
1.1 Interest accrued on the unpaid principal balance o fthis Note, fi'om the date o fdisbursement
hereof at the rate of Twelve percent (12.00%) per annum, shall be due and payable on December 28,
2003.
1.2 Thereafter, in the event that the total amount due and owing under this Note, including the'
principal and interest accrued hereunder, is not paid on or before the Maturity Date, as de£med below,
interest on the unpaid principal balance o fthis Note shall accrue at the rate of Eighteenpercent (18%) per
amlum.
2. Maturity:
The unpaid principal balance o fthis Note and all accrued unpaid interest thereon, if not sooner
paid, shall be due and payable in full on December 28, 2003 (the "Maturity Date")
3. Application of Payments:
Allpayments shall be applied fu-st to the payment o faccrued unpaid interest on this Note and the
balance, if any, shall be applied to the reduction of the outstanding principal balance o fthis Note. Interest
due hereunder shall be calculated on the basis cfa 360-day year composed of twelve 30-day months;
provided however in no event shallthe interest payable under the terms o fthis Note exceed the maximum
rate of interest permitted under applicable law.
DEED OF TRUST NOTE - 1
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DOCUMENT II.A.1
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Late Payment Charge:
562
The Lender o ftlfis Note may collect a late payment charge, prior to the acceleration of this Note,
in an amount equal to TWO Hundred Filly Dollars ($250.00) of the full monthlyinstallment which is not paid
on the due date, for the purpose of covering the extra expenses involved in handling delinquent installments.
Any installment or payment which is correctly addressed, bears adequate first class postage and is
postmarked by the United States Postal Service on or before the due date shall not be considered
delinquent and a late payment charge shall not be assessed.
5. Prepayment:
5.1 Borrower shall have the right to prepay all or any part of the obligation evidenced by this
Note at any time.
6. Additional Conditions:
6. I This Note is secured by a Deed of Trust (referred to herein as the "Mortgage") of even
date herewith encumbering certain real property located in the County of Lincoln, State o fWyoming and
6ther property as more particularly described in the Mortgage (hereinafter collectively referred to as the
· "Property"). The Mortgage contains terms and provisions for acceleration ofthe indebtedness evidenced
by this Note together with additional remedies in the event o fdefault hereunder or thereunder. Failure on
the part of Lender to exercise any right granted herein or in the aforesaid Mortgage shall not constitute a
waiver of such right or preclude the subsequent exercise and enforcement thereof. This Note, the Mortgage
and all other documents and instruments executed as further evidence of, as additional security for, or
executed in connection with the indebtedness evidenced by this Note are hereinatter collectively referred
to as the "Loan Documents."
6.2 Except as herein otherwise provided, allparties to tiffs Note, including endorsers, sureties
and guarantors, hereby jointly and severally waive presentment for payment, demand, protest, notice of
protest, notice o fdemand and of nonpayment or dishonor and of protest, and any and all other notices and
demands whatsoever, and agree to remain bound hereby until the principal and interest of this Note are
paid in full, notwithstanding any extensions of time for payment which may be granted by Lender, even
though the period of extension be indefmite, and notwithstanding any inaction by, or failure to assert any
legal rights available to Lender of this Note.
6.3 If the obligations evidenced by this Note, or anypart hereof, are placed in the hands of an
attorney for collection, whether by suit or otherwise, at any time, or from time to time, Borrower shall be
liable to Lender, in each instance, for all costs and expenses incurred in connection therewith, including,
without linzitation, Reasonable Attorneys' Fees (as hereinafter defined).
DEED OF TRUST NOTE - 2
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DOCUMENT II.A.1
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7. Default: 5 {3 3
7.1 I fdefault shall be made in the payment o fprincipal of or interest on this Note as stipUlated
above or in the payment of any other sums due hereunder or under any of the other Loan Documents, or
should any default be made in the performance of any of the terms, covenants and conditions contained
herein or in any ofthe other Loan Documents, then, at the option of Lender, the entire outstanding principal
balance of this Note, together with all accrued unpaid interest thereon and all other sums advanced by
Lender on behalf of Borrower shall become and be immediately due and payable then or thereafter as
Lender may elect, regardless of the Maturity Date hereof. All such amounts shall bear interest after
maturity} by acceleration or otherwise, at the lesser o feither (i) the highest rate of interest then allowed by
the laws of the State of Idaho or, ifc°ntrolling, the laws of the United States, or (ii) the then applicable
interest rate set forth in paragraph 1.2 herein.
7.2 During the existence ofany default, Lender may apply any sums received, including but not
lhnited to, insurance proceeds or condemnation awards, to any amount then due and owing hereunder or
under the terms of any of the other Loan Documents as Lender may determine. Neither the right nor the
exercise of the right herein granted unto Lender to apply such proceeds as aforesaid shall serve to cure the
default or preclude Lender fi.om exercising its option to cause the entire indebtedness evidenced by this
Note to become immediately due and payable by reason of Borrower's default under the terms o fthis Note~
or any of the other Loan Documents.
7.3 Notwithstanding any provisions herein to the contrary, Lender's right, power and privilege
to accelerate the maturity of the indebtedness evidenced hereby shall be conditioned upon, (i) with respect
to any Monetary Defauk (as hereinafter defined) Lender giving Borrower written notice of such Monetary
Default and a thirty ( 3 0 ) day period, after the date of such notice, within which to cure such Monetary
Default and (ii) with respect to any Non-Monetary Default (as hereinafter defined), Lender giving Borrower
written notice of such Non-Monetary Default and a fifteen (15) day period, after the date o fsuch notice,
within which to cure suchNon-Monetary Default, unless such Non-Monetary Default cannot reasonably
be cured within said fifteen (fifteen) day time period, in which event Borrower shall have an extended
period of time to complete cure, Provided that action to cure suchNon-Monetary Default has commenced
witlfin said fifteen (15) dayperiod and Borrower is, in Lender's sole judgment, not diminishing or impairing
the value of the Property, and is diligently pursuing a cure to completion.
7.4 Any notice required hereunder shall be given as provided in the Mortgage. Lender shall
have n6 obligation to give Borrower notice of any Incurable Default (as hereinafter defined) prior to
exercising its right, power and privilege to accelerate the maturity of the indebtedness evidenced hereby
and to declare the same to be immediately due and payable and exercise all other rights and remedies
herein granted or otherwise available to Lender at law or in equity. As used herein, the term "Monetary
Default" shall mean any default which can be cured by the payment of money including, but not limited to,
the payment of principal and interest due under this Note and the payment of taxes, assessments and
insurance premiums when due as provided in the Mortgage. As used herein, the term "Non-Monetary
Default" shall mean any default that is not a Monetary Default or an Incurable Default. As used herein, the
tenn"Incurable Default" shall mean (i) any voluntary or involuntary sale, assignment, mortgaging or transfer
DEED OF TRUST NOTE - 3
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DOCUMENT II.A.1
BOl MT'1:345214.2
56 I.
inviolation of the covenants of the Mortgage; or (ii) that Borrower, or any person or entity comprising
Borrower, has made an assignment for the benefit of creditors, has become insolvent, or filed apetition in
bankruptcy (including but not limited to, a petition seeking a rearrangement or reorganization).
7.5 Notwithstanding any proViSion o fthis Note to the contrary, during any period o fdefault and
regardless of any cure period applicable to such default, in each instance under this Note, the Mortgage,
or any of the other Lo an Documents in which either (i) Borrower is permitted to take an action without
Lender's prior written consent or (ii) Lender's consent is to be eXercised reasonably, Lender's consent
shall be required and shall be granted or withheld in Lender's sole and absolute discretion.
8. Savings Clause and Severability:
8.1 Notwithstanding any provision herein or in the Mortgage to the contrary, the total liability
for payments in the nature of interest including but not limited to Prepayment Premiums, default interest and
late payment charges shall not'exceed the maximum allowable charges of interest imposed by the laws of
the State of Idaho or, ifcontrollh~g, the United States. Lender shall not be entitled to receive, collect or
apply, as interest on the indebtedness evidenced hereby, any amount in excess of the maximum allowable
rate of interest permitted to be charged by applicable law or regulations, as amended or enacted from time
to time. In the event Lender ever receives, collects or applies, as interest, any such excess, such amount
that would be excessive interest shall be applied to reduce the unpaid principal balance 0fthe indebtedness
evidenced by this Note. If the unpaid principal balance of such indebtedness has been paid in full, any
remaining excess shall be forthwith paid to Borrower.
8.2 If any clauses or provisions herein contained operate or would prospectively operate to
invalidate this Note, then such clauses or provisions only shall be held for naught, as though not herein
contained and the remainder of this Note shall remain operative and in full force and effect.
9. Exculpation:
9.1 The liability of Borrower With respect to the payment of principal and interest hereunder
shall be "non-recourse" and, accordingly, Lender's source of satisfaction of said indebtedness and
Borrower's other obligations hereunder and under the other Loan Documents shall be limited to the
Property and Lender's receipt of the rents, issues, and profits fi:om the Property and any other security or
collateral now or hereatter held by Lender and Lender shall not seek to procure payment out o fany other
assets of Borrower, or any person or entity comprising Borrower, or to seek judgment (except as
hereinafter provided) for any sums wlfich are or may be payable under this Note or under any of the other
Loan Documents, as well as any clain~ or judgment (eXcept as hereafter provided) tbr any deficiency
remaining after foreclosure of the Mortgage. Notwithstanding the foregoing, nothing herein contained shall
be deemed to be a release or impairment of the indebtedness evidenced by tiffs Note or the security
therefor intended by the other Loan Documents or be deemed to preclude Lender from exercising its rights
to foreclose the Mortgage or to enforce any of its other rights or remedies under the Loan Documents.
DEED OF TRUST NOTE - 4 DOCUMENT II.A.1
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5G5
9.2 Notwithstanding the foregoing, it is eXpressly understood and agreed that the aforesaid
limitation on liability shall in no way affect or apply toBorrower ' s conttnued' personal liability for all sums
due to:
9.2.1. fi'aud or material misrepresentation made in or in connect ion with this Note or any
of the other Loan Documents;
9.2.2. failure to pay taxes and assessments prior to delinquency, or to pay charges for
labor, materials or other charges which may create liens on any portion of the Property;
9.2.3. the misapplication of(i) proceeds of insurance coveting anyportion ofthe Property;
or (ii) proceeds of the sale or condemnation of any portion of the Property; or (iii) rentals received by or
on behalfo fBorrower subsequent to the date on which Lender makes written demand therefor pm:suant
to any of the Loan Documents;
9.Z4. causing or permitting waste to occur in, on or about the Property and failure to
maintain the Property, excepting ordinary wear and tear;
9.2.5. the return to Lender of all unearned advance rentals and secUrity deposits that have
beenpaid by tenants of the Propertyt9 the extent that such fees have not been refunded to or fort~it ed by
such tenants;
9.2.6. the return to Lender of any and all fees paid to Borrower by any tenant of the
Property which fees permit the tenant to terminate its lease;
9.2.7. loss by fire or any other casualty to the extent not compensated by insurance
proceeds collected by Lender;
9.2.8. the return of, or reimbursement for, all Fixtures and Personal Property (as defined
in the Mortgage) owned by Borrower taken from the Property by or on behalf of Borrower, out of the
ordinary course of business, and nOt replaced by items of equal or greater value than the original value of
the Fixtures and Personal Property so removed;
9.2.9. all court costs and Reasonable Attorneys' Fees (as hereinal~er defined) actually
incurred which are provided for in Otis Note or in any of the other LOan Documents;
9.2. l 0. (i) the removal of any chenfical, material or substance in excess of legal limits, to
· which exposure is prohibited, limited, or regulated by any federal, state, county, or local authority which
may or could pose a hazard to the health and safety of the occupants of the Property, regardless of the
source of origination; (ii) the restoration of the Property to comply with all governmental regulations
pertaining to hazardous waste found in, on or trader the Property, regardless of the source o forigination;
and (iii) any indenufity or other agreement to hold Lender harmless from and against any and all losses,
liabilities, damages, injuries, costs and expenses of any and every kind arising as a result of the existence
DEE ~c~-m~ UST NOTE - 5
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DOCUM' ~'~:T
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and/or removal of Hazardous Materials (as defined in the Mortgage) and from the violation of Hazardous
Waste Laws (as defined inthe Mortgage). Borrower shall not be liable hereunder ffthe Property becomes
contanfinated subsequent to Lender's acquisition of the Property by foreclosure or acceptance ora deed
in lieu thereof Or subsequent to any transfer of ownership of the Property wh/ch was approved or
authorized by Lender pursuant to the Mortgage, provided that such transferee assumes in writing all
obligations o fBorrower under the Loan Docmnents pertaining to Hazardous Materials. Liability under this
subparagraph (10) shall extend beyond repayment of this Note and compliance with the terms °f the
Mortgage unless Borrower at such thne provides Lender with an environmental assessment report
acceptable to Lender, in its sole discretion, showing the Property to be flee of Hazardous Materials and
not in violation of Hazardous Waste Laws. The burden o fproofunder this subparagraph with regard to
establishing the date upon which such Hazardous Materials were placed or appeared in, on or under the
Property shall be upon Borrower.
9.2.11. anmunts under any letter of credit and any renewals and/or replacements thereof
supplied by Borrower to Lender in connection with this Note or the loan evidenced and secured by the
LoanDocuments inthe event that the bag issuing such letter of credit becomes ihsolvent, fries or has fried
.agains! it any bankruptcy or sinfilar proceeding or is closed (either temporarily or permanently), or placed
in receivership, conservatorship or liquidation by the Federal Deposit Insurance Corporation, Resolution
Trust Corporation or any other local, state or federal government agency o r otherwise falls or refuses to
honor such letter of credit; and
9.2.12. all ainounts payable for all state documentary stamp taxes and intangible personal
property taxes, if any, which may be levied or assessed against this Note, the Mortgage or any o fthe other
LOan Documents, together with all interest thereon and penalties or charges hi connection therewith.
9.3. The obligations of Borrower in subparagraphs 9.2.1. tlu'ough 9.2.12. above, except as
specifically provided in subparagraph 9.2.10., shall survive the repayment oftlfis No re, and satisfaction of
the Mortgage.
10. Full Recourse:
10.1. Notwithstanding anyprovisions intlfis Note to the contrary including, without limitation, the
pro visions set forth in the section capt io ned "Exculpation" hereinabove, B on'ower shall be personally liable
for the entire indebtedness evidenced by tiffs Note (including allprincipal, interest and other charges) in the
event Borrower (i) violates the covenant governing the placing of subordinate financing on the Property as
set forth in the Mortgage, or (ii) violates the covenant restricting transfers of interest in the Property or
transfers of ownership interests in Borrower as set forth in the Mortgage.
I 1. .Captions:
11. I The captions set forth at the beginning of the various paragraphs of this Note are for
conve~fience only and shall not be used to interpret or construe the provisions of tiffs Note.
DEED OF TRUST NOTE - 6 DOCUMENT II.A.I
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567
11.2 As used herein, the pln-ase "Reasonable Attorneys' Fees" shall mean fees charged by
attorneys selected by Lender based upon such attorneys' then prevailing hourly rates as opposed to any
statutory presumption specified by any statute then in effect in the State of Idaho.
THE PROVISIONS oflhis Note shall be governed by and construed in accordance with the laws
ofihe State of Idaho and if controlling, by the laws of the United States and shall be binding upon
Borrower, its heirs, personal representatives, successors and assigns and shall inure to the benefit of
Lender, its successors and assigns.
IN WITNESS WHEREOF, Borrower has executed this Note as of the day and year first above
written.
Dean Mondy
Barbara Mondy
DEED OF TRUST NOTE - 7
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DOCUMENT II.A.1
BOI MT1:345214.2
568
STATE OF IDAHO
County of Bonneville
)
:SS
)
On this ~PCday of October, 2003, before me, the undersigned, a Notary Public in and for said
State, personally appeared DEAN MONDY, known or identified to me to be the person whose name is
subscribed to the witlfin and foregoing instrument, and acknowledged to me that he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affuxed my official seal the day and
year in this certificate tn:st above written.
No/ary&uOlic t~r I&ho---(
Residing at:
My Commission Expires:
STATE OF IDAHO
County of Bonneville
)
:SS
)
On this 2¢ day of October, 2003, before me, the undersigned, a Notary Public in and for said
State, personally appeared BARBARA MONDY, known or identified to me to be the person who se name
is subscribed to the within and foregoing instrument, and acknowledged to me that she executed the same.
IN WITHIES S WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year in this certificate first above written.
N~ar~t~hZ' for Idaho-q
Residing at: ~-~ ~--~ c9~
My Commission Expires: q//$$//~
DEED OF TRUST NOTE - 8
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DOCUMENT II.A.1
BOI_MT1:345214.2
Legal Description
N ~A, SE 1/~, SW 'A, NE 'A, S 19, T 34 N, R 1.18 W, 6~h P..M., Wyoming