HomeMy WebLinkAbout901770]3767566+1 00426380091967
LOWERY, FRED
DEED OF TRUST I MORTGAGE
WHEN RECORDED MAIL TO:
Bank One, N.A. Retail Loan Servicing KY2-1606
P.O. Box 11606
Lexington, KY 40576-1606
R E C f-~ IV E D
LINCLLH C01JhlTY (,l__Ef~4
S40
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SPACE ABOV_._.~E THIS LINE IS FOR RECORDER'S USE ONLY
y, MORTGAGE
THIS MORTGAGE dated July 30, 2004, is made and executed between FRED T LOWERY and TAIVlMY M LOWERY,
HUSBAND AND WIFE, AS TENANTS BY THE ENTIRETIES, whose address is 177 TRAIL DRIVE RD, ALPINE, WY
83128 (referred to below as "GrantOr") and Bank One, NA , whose address is 100 East Broad Street, Columbus,
OH 43271 (referred to below as "Lender").
GRANT OF MORTGAGE. For valuable consideration, Grantor mortgages and conveys to Lender ali of Grantor's right, tide, and interest in and to
the following described real property, together with all existing or subsequently erected or affixed buildings, improvements and fixtureS; ail
easements, rights of way, and appurtenances; all water, water rights, watercourses and ditch rights (including stock in utilities with ditci~ or
irrigation rights); and all other rights, royaltieS, and profits relating to the real property, inctuding without limitation all minerals, oil, gas,
geothermal and similar matters, (the "Real Property") located in LINCOLN County, State of Wyoming:
THE FOLLOWING DESCRIBED TRACT OF LAND IN LINCOLN COUNTY, STATE OF WYOMING, TO-WIT: LOT
626-C, LAKEVlEW ESTATES SUBDIVISION AS SHOWN BY THE OFFICIAL PLAT THEREOF IN THE OFFICE OF
THE CLERK OF LINCOLN COUNTY, WYOMING. SUBJECT TO RESTRICTIONS, RESERVATIONS, EASEMENTS,
COVENANTS, OIL, GAS OR MINERAL RIGHTS OF RECORD, IF ANY.
commonly known as .177 TRAIL DRIVE RD, ALPINE, WY 83128. The Real
The Real Property or its address is 3718 293 09 033 00.
Property tax identification number is
Grantor presently assigns to Lender all of Grantor's right, title, and interest in and to all present and future leases of the Property and all Rents
from the Property. In addition, Grantor grants to Lender a Uniform Commercial Code security interest in the Personal Property and Rents.
THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERI'Y. IS
GIVEN TO SECURE (A) PAYMENT OF THE INDEBTEDNESS AND {BI PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER 1-tie NOTE,
THE RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS:
PAYMENT AND PERFORMANCE. Except as otherwise provided in this Mortgage, Grantor shall pay to Lender all amounts secured by ri~is
Mortgage as they become due and shall strictly perform all of Grantor's obligations under this Mcr[gage.
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 Usa. Until the occurrence of an Event of Default, Grantor may {1) remain in possession and control of the Property; (2)
use, operate or manage the Property; and {3) collect the Rents from the P~opertv.
Duty to Maintain. Grantor shall maintain the Property in good condition and promptly perform all repairs, replacements, and maintenance
necessary to preserve its value.
Compliance With Environmental Laws. Grantor represents and warrants to Lender that: (1) During the period of Grantor's ownership of
the Property, there has been no use, generation, manufacture, storage, treatment, disposal, release gl threatened release of any Hazardous
· an[or l~as no knowledge of, or reason to believe that [he~e has
Subs,ante y any e,son on, under, about o, !rom ....
~b; as ,ePviously disclosed to and aor. nowieoge, o ~v~_~,.; i ri[in, {a) any breach or violet,on of any ?:v,,.onr!,umal
elease or threatened release of any Hazardous UuDStdnce gl), u~ ,
(bi any use generation lll~tllutab~-u, , -- ' ' ' ' '
been, excep P ....... f-¢ti,re· storaae treatment, u~vuo., -- any ac[ua or t rreatened fiti9adon or claims of any
about or from the Property by any prior owners or occupants of the Property, or {c)
kind by any person relating to such matters; and (3) Except as previously disclosed to and acknowled§edby Lender in vvri[ng, tn) neither
Grantor nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, mal~ofac~ure, store, [lear, dispose of
or release any Hazardous Substance on, under, about or from the Property; and (bi any such activity shall be conducted in compliance
with all applicable federal, state, and local laws, regulations and ordinances, including without limitation all Environmental Laws. Grantor
authorizes Lender and its agents to enter upon the Property to make such inspections and tests, at Grantor's expense, as Lender may deem
appropriate to determine compliance of the Property with this section of the Mcr[ga9e. Any inspections or tests made by Lender shall be
for Lender's purposes only and shall not be construed to create any responsibility or liability on the part of Lender to Grantor or to any other
person. The representations and warranties contained herein are based on GrantOr'S due diligence in investigating the Property for
Hazardous Substances. Grantor hereby (1) releases and waives any future claims against Lender for indemnity or contribution in the
event Grantor becomes liable for cleanup or other costs under any such laws; and (2) agrees to indemnify and hotd l~armiess Lender
against any and all claims, losses, liabilities, damages, penalties, and expenses which Lender may directly or indirectly sustain or sulfer
resulting from a breach of this section of the Mortgage or as a consequence of any use, generation, manufacture, storage, disposal, release
of threatened release occurring prior to Grantor's ownership or interest in the Property, whether or not the same was or should have t)een
known to Grantor. The provisions of this section of tl~e Mort,gage, including the obligation to indemnify, shall survive tl~e paymen[ of tl~e
indebtedness and the satisfaction and reconveyance of the lien of this MorLga9e and shall not be affected by Lender's acctuismon of
interest in the Property, whether by foreclosure or otherwise.
Nuisance, Waste. Grantor shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any strippin§ of or waste on or to
the Property or any portion of the Property. Without limiting the generality of the foregoing, Grantor witi not remove, or 9~anr to any other
party the right to remove, any timber, minerals {including oil and gas), coat, clay, scoria, soil, gravel or rock products without Lender's prior
written consent,
Removal of Improvements. Grantor shall not demolish or remove any hnprovements from the Real Property without Lender's p~ior written
consent. As a condition to the removal of any Improvements, Lender may require Grantor to make arrangements satisfactory to Lender to
replace such Improvements with improvements of at least equal value.
· Lender's Right to Enter. Lender and Lender's agents and representatives may enter upon the Real Property at all reasonable times to attend
to Lender'S interests and to inspect the Real Property for purposes of Grantor's compliance with tl~e terms and conditions of this Mcr[ga9e.
Compliance witi~ 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 tiaa Property. Grantor may contest in good leith any sucl~
law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so Ion9 as Granto~ has notified
Lender in writing prior to doing so and so long as, in Lender's sole opinion, Lender's interests in the Property are not jeopardized. Lender
may require Grantor to post adequate security or a surety bond, reasonably satisfactory to Lender, to protect Lender's interest.
] Duty to Protect. Grantor agrees neither to abandon or leave unattended tile Property. Grantor shall do all other acts, in addition to those
; acts set forth above in this section, which from the character and use of tile Property are reasonably necessary to protect and preserve the
:: Property. , ma . at Lender's option, c eclare immediately due and payable all sums secured by this
DUE ON SALE - CONSENT BY LENDER. L.ender Y.. : sent of alt or any part of the Real P~operty, or any interest in the Real
:~ Mortgage upon the sale or transfer, w d~out Lender s pr[or written con ,
Loan No: 426380091967
MORTGAGE ~ ,. ,~ Page
(Continued) ~ '- ~ ~:1~ ~1,
Property. A "sale or transfer" means Ute conveyance of Real Property or any right, title or interest in the Real Property; whether legal, benehcial
or equitable; whether voluntary or involuntary; whether by outright sale, deed, instalhnent sale contract, tend cunt(act, contract for
leasehold interest with a term greater than three (3) years, lease-option contract, or hy sale, assignment, or transfer of a/W beneficial interest
or to any land trust holding title to the Real Property, or by any other method of conveyance et an interest in the Real Property. However, this
option shall not be exercised by Lender if such exercise is prohibited by federal law or by Wyoming law.
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 wo~k done on or
services rendered or material furnished to the Property. Grantor shall maintain the Property free of any liens havin0 priority over or ucluatto
the interest of Lender under this Mortgage, except for those liens specifically agreed to ~n writing by Lender, and except for tile lien el taxes
and assessments not due as further specified in the Right to Contest paragraph.
Right to Contest. Grantor may withhold payment of any tax, assessment, or claim in connection with a good faith dispute ove~ the
obligation to pay, so long as Lender's interest in the Property is not jeopardized. Il a lien arises or is filed as a result el nonpayrnent,
Grantor shall within fifteen (;15) days after the lien arises or, if a lien is filed, within idteen (15) clays alter Granto~ has notice et tl~u lih~g,
secure the discharge of the lien, or if requested by Lender, deposit with Lender cash or a sufficient corporate sureW bond or elbe, secunly
satisfactory to Lender in an amount sufficient to discharge the lien plus any costs and permissible fees, or other charges that could accrue
as a result of a foreclosure or sale under the lien. In any contest, Grantor sh~dl defend itself and Lent'let and shall satisfy any adverse
judgment before enforcement against the Property. Grantor shall name Lender as an additional obligee under any surety bond furnished in
the contest proceedings.
Evidence of Payment. Grantor shall upon demand furnish to Lender satisfactory evidence of payment et the taxes or assessments and shall
authorize the appropriate governmental official to deliver to Lender at any time a w,itten statement of tile taxes and assessments against
the Property.
Notice of Construction. Grantor shall notify Lender at least fifteen (15) days before any work is commenced, any services are furnished, or
any materials are supplied to the Property, if any mechanic's lien, materialmen's lien, or other lien could be asserted on accoum el
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 reinsuring the ProperW are a part of this Mortgage:
Maintenance of Insurance. Grantor shall procure and maintain policies of fire insurance with standard extended coverage endorsements on
a replacement basis for the full insurable value covering all Improvements on the Real Property in an amount sufiicient to avoid aPl~licauon
of any coinsurance clause, and with a standard mortgagee clause in favor of Lender. Policies shall be written by such insurance co~/~panles
and in such form as may be reasonably acceptable to Lender. Grantor shall deliver to Lender certificates of coverage hem each i~su~er
containing a stipulation that coverage will not be cancelled or diminished without a minimum of ten (10) days' prior written notice to Lender
and not containing any disclaimer of the insurer's liability for failure to give such notice. Each insurance policy also shall include an
endorsement providing that coverage in favor Of Lender will not be impaired in any way by any act, .omission or default of G~antor or any
other person. Should the Real Property be located in an area designated by the Director' et the Federal Emergency Management Agency as
a special flood hazard area, Grantor agrees to obtain and maintain Federal Flood Insurr~nce, if available, within 45 days after not,ce is given
by Lender that the Property is located in a special flood hazard area, for the full unpaid principal balance of the loa~ arid any prior liens on
the property securing the loan, up to the maximum policy limits set under the Nation~,l Flood Insurance Program, or us otherwise required by
Lender, and to maintain such insurance for the term of the loan.
Application of Proceeds. Grantor shall promptly notify Lender of any loss or damage to the Property. Lender may make prool of loss
Grantor fails to do so within fifteen (15) days of the casualty. Whether or not Lender's security is impaired, Lender may, at Lender's
election, receive and retain the proceeds of any insurance and apply the proceeds to tile reduction of the Indebtedness, paymem el any lien
affecting the Property, or the restoration and repair of the Property. If Lender elects to apl)ly the proceeds to restoration and repai~, Grantor
shall repair or replace the damaged or destroyed Improvements in a manner satislaclory to Lender. Lender shall, upon satisl'actory prool of
such expenditure, pay or reimburse Grantor from tile proceeds for the reasonable cost of repair or restoration if Grantor is not it/ default
under this Mortgage. Any proceeds which have not been disbursed within 180 days after tl~eir receipt and which Lender has not
committed to the repair or restoration of the Property shall be used first to pay any amount owing to Lender under tl~is Mortgage, then to
pay accrued interest, and the remainder, if any, shall be applied to the principal balance of tile Indebtedness. If Lendel holds a~ly i)~ocouds
after payment in full of the Indebtedness, such proceeds shall be paid to Grantor as Grantor's interests may appear.
LENDER'S EXPENDITURES. If Grantor fails CA) to keep the Property free of all taxes, liens, security interests, encumbrances, arm other claims
CB) to provide any required insurance on the Property, or CC) to make repairs to tbe Property then Lender may do so. It any action
proceeding is commenced that would materially affect Lender's interests in the Property, then Lender on Grantor's bebatl' may, but ~s
required to, take any action that Lender believes to be appropriate to protect Lender's interests. All expenses incurred or paid by Lender for
such purposes will then bear interest at the rate charged under the Note from the date incurred or paid by Lender to tt/e (late el repayment by
Grantor. All such expenses will become a part of the Indebtedness and, at Lender's option, will CA} be payable on dernand; CB) be added to
the balance of the Note and be apportioned among and be payable with any installment payments to become clue during either (]) the term of
any applicable insurance policy; or (2) the remaining term of the Note; or CC) be treated as a balloon payment wbich will be due and payable
at the Nora's maturity. The Property also will secure payment of these amounts. The rights provided for in this paragraph shall bain addition to
any other rights or any remedies to which Lender may be entitled on account of any de[autt. Any such action by Leander shall not be construed
as curing the default so as to bar Lender from any remedy that it otherwise would have had.
WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the Property are a part of this Mortgage:
Title. Grantor warrants that: Ca) Grantor holds good and marketable title of record to the Property in fee simple, free and clear of all liens
and e'ncumbrances other than those set forth in the Real Property description or in a~y title insurance policy, title report, or tinal title opitlion
issued in favor of, and accepted by, Lender in connection with this Mortgage, and Cb) Grantor has the full tight, power, and authority to
execute and deliver this Mortgage to Lender.
Defense of Title. Subject to the exception in the paragraph above, Grantor wa(tams and will forever defend the title lo the Property against
the lawful claims of all persons. In the event any action or proceeding' is commenced that questions Grantor's title or gte interest et Lender
under this Mortgage, Grantor shall defend the action at Grantor's expense. Granter may be the nominal party in such p~oceed ng,
Lender shall be entitled to participate in the proceeding and to be represented in tile proceeding by counsel of Lender's (~w~ choice, and
Grantor will deliver, or cause to be delivered, to Lender such instruments as Lender may request from time to time to pe[cn~t sa(Il
participation.
Compliance With Laws. Grantor warrants that the Property and Grantor's use el tt~e P~operty complies with all existing al~plicahle laws,
ordinances, and regulations of governmental authorities·
Survival of Promises. All promises, agreements, and statements Grantor has made in this Mortgage shall survive the execudonand delivery
of this Mortgage, shall be continuing in nature and shall remain in full force and eHect until such time as Gramor's h~debtedness is paid
CONDEMNATION. The following provisions relating to condemnation proceedings are a part of this Mortgage:
Proceedings. If any proceeding in condemnation is filed, Grantor shall promptly notdy Lender in writing, and Grantor sl3all prompHy take
such steps as may be necessary to defend the action and obtain the award. Grantor may be the nominal [)arty ~n Gu(la proceethng, but
Lender shall be entitled to participate in the proceeding and to be represented in the proceedin9 by counsel of its own cno~ce a~l(t Grantor
will deliver or cause to be delivered to Lender such instruments and documentation as may be requested by Lender bom ume to un,e to
permit such participation.
Application of Net Proceeds. If all or any part of the Property is condemned by eminent dornain proceedin9s or by any proceerm~g
purchase in lieu of condernnation, Lender may at its election require that all or any portion of tile net proceeds of the awart] be alq'Jhed
the Indebtedness or the repair or restoration of the Property. The net proceeds of the award shall mean the award alte~ payment el all
reasonable costs, expenses, and attorneys' fees in(erred by Lender in connection with the condemnation.
IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. Tilt; following provisions relating to 0overnmental taxes
fees and charges are a part of this Mortgage:
Current Taxes. Fees and Charges. Upon request by Lender, Grantor shall execute such documents in addition to tnls Mortga0e alid take
MORTGAGE
Loan No: 426380091967 {~0."~';""?~ (Continued) ' i.?.. ,_,r'~ .,~ ~.('~
Psge 3
whatever other action is requested by Lender to perfect and continue Lender's lien on tile Real Property. Grantor shall reimburse Lender for
all taxes, as described below, together with all expenses incurred in recording, i)erlecting or continuing this Mortgage, including without
limitation all taxes, fees, documentary stamps, and other charges for recording o~ ~egistering this Mortgage.
Taxes. The following shall constitute taxes to which this section applies: (1) a st;ecific tax upon this type of Mortgage or upon all or any
part of the Indebtedness secured by this Mortgage; (2) a specific tax on Granto~ which Grantor is authorized or ~equired to deduct fronl
payments on the Indebtedness secured by this 'type of Mortgage; (3) a tax on this ~yl)e of Mortgage chargeable against the Lende~ or the
holder of the Note; and (4) a specific tax on all or any portion of the Indebtech~ess or on payrnents 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
same effect as an Event of Default, and Lender may exercise any or all of its available ~emedies for an Event et Defauh as provided below
unless Grantor either (1) pays the tax before it becomes delinquent, or (2) contests the tax as provided above in the Taxes and Liens
section and deposits with Lender cash or a sufficient corporate surety bond or othe~ security satisfactory to Lender.
SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to this Mortgage as a security agreement are a pa~t of
this Mortgage:
Security Agreement. This instrument shall constitute a Security Agreement to tile extent any of the P~operty constitutes fixtures, and
Lender shall have all of the rights of a secured party under the Uniform Commercial Code as amended from time to time.
Security Interest. Upon request by Lender, Grantor shall execute financing statements and take whateve~ other action is requested by
Lender to perfect and continue Lender's security interest in the Personal Property. h~ addition to recording this Mortgage in the real
property records, Lender may, at any time and without further authorization from Grantor, file executed counterpa~s, copies or
reproductions of this Mortgage as a financing statement. Grantor shall reimburse Lender for all expe~ses incurred in perfecting or
continuing this security interest. Upon default, Grantor shall assemble the Personal Property in a manne~ and at a place reaso~Jably
convenient to Grantor and Lender and make it available to Lender within three (3) (lays after receipt of written demand hem Lender.
Addresses. The mailing addresses of Grantor (debtor) and Lender (secured party) from which information concerning the security interest
9ranted by this Mortgage may be obtained {each as required by the Uniform Commercial Code) are as stated on the first page el this
Mortgage.
FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating to further assurances and attorney-in-fact a~e a part of this
Mortgage:
Further Assurances. At any time, and from time to time, upon request of Lender, Grantor will make, execute and deliver, or will cause to
be made, executed or delivered, to Lender or to Lender's designee, and when requested by Lender, cause to be filed, ~ecorded, 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, contilluation statements, instruments of tutti,er 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 (2) ~he liens and security
interests created by this Mortgage as first and prior liens on the Property, whether now owned or hereafter acquired by Grantor. Unless
prohibited by law or Lender agrees to the contrary in writing, Grantor shall reimburse Lender for all costs and eXl)enses incurred
connection with the matters referred to in this paragraph.
Attorney-in-Fact. If Grantor fails to do any of the things referred to in the preceding paragraph, Lender may do so for and in the name
Gran[or and at Grantor's expense. For such purposes, Grantor hereby irrevocably aplJoin[s Lender as Gran[or's a~torney-in-fact for the
purpose of making, executing, delivering, filing, recording, and doing all othe~ things as may be necessary or desirable, in Lender's sole
opinion, to accomplish tile matters referred to in tile 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 file evidencing Lender's security interest in the Rents and the Personal Property. Grantor will pay, if permit[ed by
applicable law, any reasonable termination fee as determined by Lender from time to time.
EVENTS OF DEFAULT. At Lender's option, Grantor will be in default under this Mortgage il any of the following happen:
Payment Default. Grantor fails to make any payment when due under the Indebtedness.
Default on Other Payments. Failure of Grantor within the time required by this Mor[0age to make any payment for taxes or insurance,
any other payment necessary to prevent filing of or to effect discharge of any lien.
Break Other Promises. Grantor breaks any promise made to Lender or Grantor fails [o perform promptly a~ the time and s~rictly
manner provided in ttlis Mortgage or in any agreement related to this Mortgage.
False Statements. Any 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 material respect, either now or at tile time made or furnished.
Defective Collateralization. This Mortgage or any of the Related Documents ceases to be in full force and effect (including failure et any
collateral document to create a valid and perfected security interest or lien) at any time and for any reason.
Death or Insolvency. The death of Grantor, the insolvency of Grantor, the appointment of a receiver for any part of Grantor's property, arty
assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding undeJ any bankruptcy o~
insolvency laws by or against Grantor.
Taking of the Property. Any creditor or governmental agency tries to take any el the Property or any other of granior's property in which
Lender has a lien. This includes taking of, garnishing of or levying on Grantor's accounts wi~h Lender.
Breach of Other Agreement. Any breach by Grantor under the terms of any ogler agreement between Grantor and Lender that is not
remedied within any grace period provided therein, including without limitation any agreement concerning any indebtedness or
obligation of Grantor to Lender, whether existing now or later.
Events Affecting Guarantor. Any of the preceding events occurs with respect to any guarantor, endorser, surety, or accommodation party
of any of the Indebtedness or any guarantor, endorser, surety, or accommodation party dies or becomes incompetent, o¢ revokes or
disputes tile validity of, or liability under, any Guaranty of tile Indebtedness.
RIGHTS AND REMEDIES ON DEFAULT. Upon, the occurrence of an Event of Default and at any time thereafter, 'Lender, at Lender's opdon, may
exercise any one 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 irnrr~edia~ely
due and payable, including any prepayment penalty which Grantor would be required to pay.
UCC Remedies. With respect to all or any part of the Personal Property, Lender shall have all the rights and remedies of a secured party
under the Uniform Commercial Code.
Collect Rents. Lender shall have the right, without notice to Grantor, to take possession of [l~e Property, including during tile pendency of
foreclosure, whether judicial or non-judicial, and collect the Rents, including amounts past due and unpaid, and apply the net proceeds, over
and above Lender's costs, against the Indebtedness. In furtherance of this right, Lender may require any tenant or other user of [he
Property to make payments of rent or use fees directly to Lender. If the Rents are collected by Lender, then Grantor irrevocably designaies
Lender as Grantor's attorney-in-fact to endorse instruments received in payment thereof in the name of Gramor and to negotiate tile same
and collect the proceeds. Payments by tenants or other users to Lender in response ~o Lender's demand shall satisfy the obligations for
which the payments are made, whether or not any proper grounds for the dema~d existed. Lender may exercise its righls nnder this
subparagraph either in person, by agent, or through a receiver.
Appoint Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any peri. of the Property, with die
power to protect and preserve the Property, to operate the Property preceding foreclosure or sale, and [o collec~ the Rents tron~ tile
Property and apply the proceeds, over and above the cost of the receivership, agai~st tile 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 Prope, W
exceeds the Indebtedness by a substantial amount. Employment by Lender shall not disqualify a person from serving as a receiver.
Judicial Foreclosure. Lender may obtain a judicial decree foreclosing Grantor's interest in all or any part of the Property.
MORTGAGE Page 4
Loan No: 426380091967 O-;J(~jL, ¢ ~ ~.) (Continued) ,--;/'"~ ~ ~/j
Nonjudicial Sale. Lender may foreclose Grantor's interest in all or in any part of the P~operty by non-judicial sale, and specificdlly by "power
of sale" or "advertisement and sale" foreclosure as provided by statute.
Deficiency Judgment. If permitted by applicable law, Lender may obtain a judgmenl ICl any deficiency remahm~j in the h~debtedness due
to Lender alter application of all amounts received from the exercise of the rights provided in [his section.
Tenancy at Sufferance. If Grantor remains in possession of the Property after the Property is sold as provided above o~ Lender otherwise
becomes entitled to possession of the Property upon default of Grantor, Grantor shall become a tenant at sul~ferance of Lender cr the
purchaser of the Property and shall, at Lender's option, either (1) pay a reasonable rental for the use of the Property, or (2) vacate tt~e
Property immediately upon the demand of Lender.
Other Remedies. Lender shall have all other rights and remedies provided in this Mortgage or the Note or available at law or inequity.
Sale of the Property. To the extent permitted by applicable law, Grantor hereby waives any and all right to have tl~e Property marshalled
In exercising its rights and remedies, Lender shall be free to sell all or any part ct ~he Property together or separately, in or~e sale o~ by
separate sales. Lender shall be entitled to bid at any public sale on all or any portio~ cd the Property.
Notice of Sale. Lender will give Grantor reasonable notice of the time and place of any public sale of the Personal Property or of tile time
after which any private sale or other intended disposition of the Personal Property is to be made. Reasonable co[ice shall rnea~ nutlce
given at least ten (10) days before the time of the sale or disposition.
Election of Remedies. All of Lender's rights and remedies will be cumulative al~d may be exercised alone or together. An election by
Lender to choose any one remedy will not bar Lender from using any other remedy. If Lender decides to spend .~oney ur to peri~orm any
Grantor's obligations under this Mortgage, after Grantor's failure to do so, that d~cision by Lender will not affect Lender's right to declare
Grantor in default and to exercise Lender's remedies.
Expenses. To the extent not prohibited by applicable law, all reasonable expenses Lender incurs that in l. ender's opinion are necessary at
any time for the protection of its interest or the enforcement of its rights, shall beco,-ne a part of the loan payable on demand, and shall
bear interest at the Note rate from the date of expenditure until repaid. Expenses covered by this paragraph include, wid~out limitation,
however subject to any limits under applicable law, Lender's expenses for bankruptcy proceedings (including e/forts to modily or vacate the
automatic stay or injunction) and appeals, to the extent permitted by applicable law.
NOTICES. Any notice required to be given under this Mortgage, including without limitatioo ar~y notice of default and any co[ice o~ sale shall be
given in writing, and shall be effective when actually delivered, when actually received by telefacsirnile (unless otherwise required by law). when
deposited with a nationally recognized overnight courier, or, if mailed, wl~en'deposited in the United States mail, as first class, certilied or
registered mail postage prepaid, directed to the addresses shown near the beginning gl this Mortgage. 'Ali copies of notices of foreclosure
the holder of any lien which has priority over this Mortgage shall be sent to Lender's address, as shown near the beginning ct this Mu~tgage.
Any person may change his or her address for notices under this Mortgage by giving [ormal written notice to the other person or persons,
specifying that the purpose of the notice is to change the person's address. For notice purposes, Grantor agrees to keep Lender iolorrned at all
times of Grantor's current address. Unless otherwise provided or required by law, if thd~e is more than one Graotor, any notice given by I. ender
to any Grantor is deemed to be notice given to all Grantors. It will be Grantor's rest)onsibdily to tell the others of tl~e ~otice from t eoder.
Notwithstanding the foregoing, the address for notice for Lender is: Bank One, P.O. Box 90~008, Fort Wortb, TX 76'10~-2008.
IDENTITY OF LENDER. Lender is Bank One, N.A., a national banking association with its m~in uffices located in Columbus, Ohio.
NON-WAIVER. A waiver by any party of a breach of a provision of this Mortgage shall not constitute a waiver of or prejudice the [~a~ty's
atherwise to demand strict compliance with that provision or any other provision.
SUPPLEMENT TO PERSONAL PROPERTY DEFINITION. It is the intention of Lender only to take a security interest in and retain a lien on that
aersonal property considered fixtures under the Uniform Commercial Code as adopted in the jurisdiction where this Mortgage is tiled of reco~d as
same may be amended from time to time or such other statute of such jurisdiction that defines property affixed to real estate arid no other
~ersonal property.
VIISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Mortgage:
Amendments. What is written in this Mortgage and in the Related Documents is Grantor's entire agreement with Lender concernio0
matters covered by this Mortgage. To be effective, any change or amendment to this Mortgage must be in writing a~d must be signed hy
whoever will be bound or obligated by the change or amendment.
Caption Headings. Caption I~eadings in this Mortgage are for convenience purposes only and are not to be used to interpret or define ti~e
provisions of this Mortgage.
Governing Law. This agreement will be governed by and interpreted in accordance wilh federal law and the laws of the Stare uf Wy~mning
except for matters related to: (1) interest and the exportation of interest, which will be governed by and interpreted in accordance vvilh
federal law (including, but not limited to, statutes, regulations, interpretations, and opinions) and the laws oi~ the Slate of Ohio; and (2) tile
validity and enforcement of Lender's security interest in the Property, which will be governed by the laws of the State where the Property is
located. However, if there ever is a question about whether any provision of the agreement is valid or enforceable, the p~ovision that is
questioned will be governed by whichever of the governing state or federal laws that would find the provision to be valid and enl'orceable.
The loan transaction which is evidenced by this and other related documents has been approved, made and funded, and all necessary
documents have been accepted by Lender in the State of Ohio.
Joint and Several Liability. All obligations of Grantor under this Mortgage shall be joint and several, and all references to Grantor shall mean
· each and every Grantor. This means that each Grantor signing below is responsible tot all obligations in[his Mortgage·
No Waiver by Lender. Grantor understands Lender will not give up any of Lender's rights under this Mortgage unless Lender does so
writing. The fact that Lender delays or omits to exercise any right will not mean that Lui~der has given up that rigid[. If Lender does agree
in writing to give up one of Lender's rights, that does not mean Grantor will not have t() comply with the other provisions gl this Mortgage.
Grantor also understands that if Lender does consent to a request, that does not n~ean that Grantor will not have to get Lender's cu~e~t
again if the situation happens again. Grantor further understands that just because Lender consents to one or rno~e ct Gran[o~'s requests,
that does not mean Lender will be required to consent to any of Orantor's future requests. Grantor waives presenu~unt, demand
payment, protest, and notice of dishonor. Grantor waives all rights of exemption from execution or similar law in ti~e Property, and Grantor
agrees that the rights of Lender in the Property under this Mortgage are prior to Granto~'s rights while tl~ s Mo,tgage remains i~ et[ecl.
Severability. If a court finds that any provision of this Mortgage is not valid or should not oe enforce~, that [act by itseli will not n-,ear trial
the rest of this Mortgage will not be valid or enforced. Therefore, a court will enlo~ce the rest of me provisions gl tn~s M~r[gage eve~ n a
provision of this Mortgage may be found to be invalid or unenforceable.
Merger. There shall be no merger of the interest or estate created by this Mortgage w~tl~ aoy other interest or estate m toe Property at any
time held by or for the benefit of Lender in any capacity, without the written consent o] Lender.
Successors and Assigns. Subject to any limitations stated in this Mortgage on transm~ ct Grantor's u~terest, this Mortgage sllall be bindllAg
upon and inure to the benefit of the parties, their successors and assigns. If ownersl~ p of the Property becomes ves[en i~ a ;~erson other
than Grantor, Lender, without notice to Grantor, may deal with Grantor's successors w,m reference to this Mo~gage ~nd the Indebteclness
by way of forbearance or extension without releasing Grantor from the obligations or this Mortgage or liability uno[er toe Indebtedness.
Time is of the Essence. Time is of the es~ence in the performance of this Mortgage.
Waiver of Homestead Exemption. Grantor hereby releases and waives all rights and ~}enefits of toe homes[earl exempnon laws or tl~e State
of Wyoming as to all Indebtedness secured by this Mortgage.
EFINITIONS. The following words shall have the following meanings when used in this M~rtgage:
Borrower. The word "Borrower" means FREDT LOWERY and TAMMY M LOWEBY, an~ all other persons ann entities s~gnlng [l~e Note
Environmental Laws. The words "Environmental Laws" mean any and all state, fecler~ ana local statutes, rugulauons anti o~du~a Ices
relating to the protection of human health or the environment, including without I~mitat~un the Comprehensive Environ~nental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amen~J~nenLs a~d
Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act 49 U.S.C. SecUon 1801. et seq.,
tl~e Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., ur other applicable state or federal laws, rules ur
regulations adopted pursuant thereto.
0~..~ ~.~ , ,:,,. MORTGAGE
Loan No: 426380091967 ,~t.~.~, ¢ ¢' ~ (Continued)
Page 5
Event of Default. The words "Event of Default" mean any of the events of default set forth in this Mortgage in the events of default
section of this Mortgage.
Grantor. The word "Grantor" means FREDT LOWERY and TAMMY M LOWERY.
Guaranty. The word "Guaranty" means the guaranty from guarantor, endorser, surety, or accommodation party to Lender, includhig
without limitation a guaranty of all or part of the Note.
Hazardous Substances. The words "Hazard(~us Substances" mean materials lhat, hecause of their quantiw, concentration or physical,
chemical or infectious characteristics, may cause or pose a present or potential hazard to human health or the environment when
improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handled. The words "Hazardous
Substances" are used in their very broadest sense and include without limitation any and all hazardous or toxic substances, materials or
waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances" also includes, without limitation, petroleum
and petroleum by-products or any fraction thereof and asbestos.
Improvements. The word "Improvements" means all existing and future improvement[s, 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 ul, consolidations of and substitutions for the Note o~
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 Bank One, NA , its successors and assigns. The words "successors or assigns" mean any person or
company that acquires any interest in the Note.
Mortgage. The word "Mortgage" means this Mortgage between Grantor and Lender.
Note. The word "Note" means the promissory note dated July 30, 2004, ill the original principal amount of $120,379.00 from
Grantor to Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitu~io~s for
the promissory note or agreement. The maturity date of this Mortgage is July 28, 2024.
Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereaher
owned by Grantor, and now or hereafter attached or affixed to the Real Property; together with all accessions, pa~ts, and additions to, all
replacements of, and all substitutions for, any of such property; and to§ether with all proceeds (including without limitation all insurance
proceeds and refunds of premiums) from any sale or other disposition of the Property.
Property. The word "Property" means collectively the Real Property and the Personal Property.
Real Property. The words "Real Property" mean the real property, interests and rights, as further described in Hfis Mortgage.
Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental
agreements, guaranties, security agreements, mortgages, deeds of trust, security (leeds, collateral mortgages, and all othe~ instruments,
agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness.
Rents. The word "Rents" means all present and luture rents, revenues, income, issues, royalties, profits, and other benefits derived frorn
the Property.
EACH GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND EACH GRANTOR AGREES TO ITS
TERMS.
GRANTOR:
STATE OF
On this day before me, the undersigned Notary Public', personally appeared FRED T LOWERY and TAMMY M LOWERY. [o me knuw0, to be the
individuals described in and who executed the Mortgage, and acknowledged that they s~u~ed the Mortgage as their free and voluntarr ac! alibi
deed, for the uses and purposes therein menti,gj~d.
Given un.or my hand and official seal this
Notary Public
day of
My commissio,, expires