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HomeMy WebLinkAbout904420 3860625+ 1 00426380092605 CITTONE, HENRY DEE° oF TRUST,.ORTGAGE ...... 9 0 h 2 0 W~IEN 'RE~C~0RDED MAI-[ TO: Bank One, N.A. Retail Loan Servicing KY2-1606 P.O. Box 11606 Lexington, KY 40576-1606 RECEIVED LINCOLN COUNTY CLERK JEANNE WAGNER ,,,.-.,,,,;.,-'r',,--,- .,¢ .... ,,,,: h,.! ~,i~ r_ f ~, iL ii' ~.~."~'t~ ' SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY MORTGAGE made and executed between HENRY A CITTONE and LILIANE BY THE ENTIRETIES, whose address is 60 BUCKRAIL LANE, THIS MORTGAGE dated October 21, 2004, is CITTONE, HUSBAND AND WIFE, AS TENANTS 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 all of Grantor's right, title, and interest in and to the following described real property, together with all existing or subsequently ~;r~;(:ted or affixed buildings, improvements and fixtures; all easements, rights of way, and appurtenances; all water, water rights, watercours,:m and ditch rights (including stock in utilities with ditch or irrigation rights); and all other rights,,, royalties, and profits' relating' to the real p~,,perty nc udng without limitation all minerals, oil, gas, geothermal and similar matters, (the Real Property") located in LINCOLN Count'y, State of Wyoming: THE FOLLOWING DESCRIBED REAL ESTATE, SITUATE IN THE COUNTY OF' LINCOLN STATE OF WYOMING, TO WIT; LOT I OF THE LAZY B SUBDIVISION, LINCOLN COUNTY WYOMING AS DESCRIBED ON THE OFFICIAL PLAT THEREOF. The Real Property or its address is commonly known as 60 BUCKRAIL LANE, ALPINE, WY 83128. The Real Property tax identification number is 37181940002200. Grantor presently assigns to Lender all of Grantor's right, title, and interest in and [o all present and future leases of the Property and all Rents from the Property. In addition, Grantor grants to Lender a Uniform Commercial Code s~;curity interest in the Personal Property and Rents. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT OF THE INDEBTEDNESS AND lB) 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 Mortgagm Grantor shall pay to Lender all amounts secured by this Mortgage as they become due and shall strictly perform all of Grantor's obligation~ u~du~ this Mortgage. POSSESSION AND MAINTENANCE OF THE PROPERTY. Grantor agrees that Grant(~r's possession and use of the Property shall be governed by the following provisions: Possession and Use. Until the occurrence of an Event of Default, Grantor may (1) remain in possession and control of the Property; (2) use, operate or manage the Property; and (3) collect the Rents from the Propurt¥. Duty to Maintain. Grantor shall maintain the Property in good condition and pr()mptly perform all repairs, replacements, and maintenance necessary to preserve its value. Compliance With Environmental Laws. Grantor represents and warrants to Lm~dur that: (1) During the period of Grantor's ownership of the Property, there has been no use, generation, manufacture, storage, treatnm.~d, disposal, release or threatened release of any Hazardous Substance by any person on, under, about or from the Property; (2) Grantor has no knowledge of, or reason to believe that there has been, except as previously disclosed to and acknowledged by Lender in writi~u, la) any breach or violation of any Environmental Laws, lb) any use, generation, manufacture, storage, treatment, disposal, release (, Ihr~atened release of any Hazardous Substance on, under, about or from the Property by any prior owners or occupants of the Properw, or lc) an,/ actual or threatened litigation or claims of any kind by any person relating to such matters; and (3} Except as previously disch)sad to and acknowledged by Lender in writing, la) neither Grantor nor any tenant, contractor, agent or other authorized user of the Prop(~,rt¥ shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from the Property; und lb) any such activity shall be conducted in compliance with all applicable federal, state, and local laws, regulations and ordinances~ in(:luding without limitation all Environmental Laws. Grantor authorizes Lender and its agents to enter upon the Property to make such h~sp~e(:tions and tests, at Grantor's expense, as Lender may deem appropriate to determine compliance of the Property with this section of the ~(~t(j;~0e. Any inspections or tests made by Lender shall be for Lender's purposes only and shall not be construed to create any responsibiliW ur 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 hold harmless Lender against any and all claims, losses, liabilities, damages, penalties, and expem~¢~ which Lender may directly or indirectly sustain or suffer resulting from a breach of this section of the Mortgage or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release occurring prior to Grantor's ownership or interest in the Prol]erty, whether or not the same was or should have been known to Grantor. The provisions of this section of the Mortgage, including [h~ obligation to indemnify, shall survive the payment of the indebtedness and the satisfaction and reconveyance of the lien of this Mort(j;~Ue ~u~d shall not be affected by Lender's acquisition of any interest in the Property, whether by foreclosure or otherwise. ' Nuisance, Waste. Grantor shall not cause, cOnduct or permit any nuisance nor c:ommJt, permit, or suffer any stripping of or waste on or to the Property or any portion of the Property. Without limiting the generality of the foregoing, Grantor will not remove, or grant to any other party the right to remove, any timber, minerals (including oil and gas), coal, clay, scoria, soil, gravel or rock products without Lender's prior written consent. Removal of Improvements. Grantor shall not de~nolish or remove any Improwm~ums from the Real Property without Lender's prior written consent. As a conditior).to the removal of any Improvements, Lender may requh'u Grantor to make arrangements satisfactory to Lender to replace such Improvements with Improvements of at least equal value. Lender's Right to Enter,'"'t~'~nder a-n-cr'r_~-~ :r;s agents and representatives may t.d~r upon the Real Property at all reasonable times to attend to Lender's inter~ts and to inspect the Real Property for purposes of Grantor's <mmpliance with the terms and conditions of this Mortgage. Compliance with Governmental Requirements, Grantor shall promptly comply wi[h all Taws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable to the use or occupancy of the Propertyl 'Grantor may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, in(:h~ding appropriate appeals, so cng as Grantor has notified Lender in writing i~ib?to do ng so and so long as, in Lender's sole opinion, LurMt;r's interests in the Property are not jeopardized. Lender may require GrantOr to post adequate security or a surety bond, reasonably sati~Mctor¥ to Lender, to protect Lender's interest. Duty to Protect. Grantor agrees neither to abandon or leave unattended the Pr.p,:;rty: Grantor shall do all other acts, in addition to those acts set forth above in this section, which from the character and use of the Pr(q~urW are reasonably necessary to protect and preserve the Property. DUE ON SALE - CONSENT BY LENDER. Lender may, at Lender's option, der:late, immediately due and payable all sums secured by this Mortgage upon the sale or transfer, without Lender's prior written consent, of all or any part of the Real Property, or any interest in the Real Property. A "sale or transfer" means the conveyance of Real Property or any right, tith; or interest in the Real Property; whether legal, beneficial 0904420 : MORTGAGE "' 089 '7 Page 2 Loan No: 426380092605 {Continued) or equitable; whether voluntary or involuntary; whether by outright sale, deed, i~;t~dh~ent sale contract, land contract, contract for deed, leasehold interest with a term greater than three {3} years, lease-option contract, (,~ l~y sale, assignment, or transfer of any beneficial interest in or to any land trust holding title to the Real Property, or by any other method of ~:,~w;yance of an interest in the Real Property. However, this option shall not be exercised by Lender if such exercise is prohibited by federal law <~ by Wyoming law. TAXES AND LIENS. The following provisions relating to the taxes and liens on thc P~q)erty are part of this Mortgage: Payment. Grantor shall pay when due (and in all events prior to delinquen(:y) ;~11 taxes, payroll taxes, special taxes, assessments, water charges and sewer service charges levied against or on account of the Prop(;~ty. a~d shall pay when due all claims for work done on or for services rendered or material furnished to the Property. Grantor shall maintai~ H~ Prol)erty free of any liens having priority over or equal to the interest of Lender under this Mortgage, except for those liens specifically ~t]~-(~d [o in writing by Lender, and except for the lien of taxes and assessments not due as further specified in the Right to Contest paragraph. Right to Contest, Grantor may withhold payment of any tax, assessment, or ~:laim in connection with a good faith dispute over the obligation to pay, so long as Lender's interest in the Property is not jeopardi/ed. If a lien arises or is filed as a result of nonpayment, Grantor shall within fifteen (15) days after the lien arises or, if a lien is filed, ~¥i0~in fifteen (15) days after Grantor has notice of the filing, secure the discharge of the lien, or if requested by Lender, deposit with Len(h~r cash or a sufficient corporate surety bond or other security satisfactory to Lender in an amount sufficient to discharge the lien plus any ~:,,.~;~s and permissible fees, or other charges that could accrue as a result of a foreclosure or sale under the lien. In any contest, Grantor .~h~dl defend itself and Lender and shall satisfy any adverse judgment before enforcement against the Property. Grantor shall name Len(h.,~ ~; ~n additional obligee under any surety bond furnished in the contest proceedings. Evidence of Payment. Grantor shall upon demand furnish to Lender satisfactory ~vidence of payment of the taxes or assessments and shall authorize the appropriate governmental official to deliver to Lender at any ti~; ;~ written statement of the taxes and assessments against the Property. Notice of Construction. GrantOr shall notify Lender at least fifteen (15) days bell)re any work is commenced, any services are furnished, or any materi~ls are supplied to the Property, if any mechanic's lien, materiahnen's lien, or other lien could be asserted on account of the work, services, or materials. Grantor will upon request of Lender furnish to [,~,l{~r 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 th,., P~ ol)erty are a part of this Mortgage: Maintenance of Insurance. Grantor shall procure and maintain policies of fire o~'~;Lir~oce with standard extended coverage endorsements on a replacement basis for the full insurable value covering all Improvements on ~h~ Real Property i~ an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor Gl L~dt.~r. Policies shall be written by such insurance companies and in such form as may be reasonably acceptable to Lender. Grantor shall d~,qiver to Lender certificates of coverage from each insurer containing a stipulation that coverage will not be cancelled or diminished with~a~t ~ minimum of ten (10) days' prior written notice to Lender and not containing any disclaimer of the insurer's liability for failure to giw~ such notice. Each insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired in any way by any act, omission or'default of Grantor or any other person. Should the Real Property be located in an area designated by th~,~ Director of the Federal Emergency Management Agency as a special flood hazard area, Grantor agrees to obtain and maintain Federal FIo,~d Insurance, if available, within 45 days after notice is given by Lender that the Property is located in a special flood hazard area, for the hdl 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 I',J~di~)~al Flood Insurance Program, or as otherwise required by Lender, and to maintain such insurance for the term of the loan. Application of Proceeds. Grantor shall promptly notify Lender of any loss or ~J;,~l~aoe to the Property. Lender may make proof of loss if Grantor fails to do so within fifteen (15) days of the casualty. Whether or r~t Lender's security is impaired, Lender may, at Lender's election, receive and retain the proceeds of any insurance and apply the procu~d~; to ~l~e reduction of the Indebtedness, payment of any lien affecting the Property, or the restoration and repair of the Property. If Lender ~.'lu~:ts to apply the proceeds to restoration and repair, Grantor shall repair or replace the damaged or destroyed Improvements in a manner s~d~slactory to Lender. Lender shall, upon satisfactory proof of such expenditure, pay or reimburse Grantor from the proceeds for the reason;dee cost of repair or restoration if Grantor is not in default under this Mortgage. Any proceeds which have not been disbursed withi~ 180 days after their receipt and which Lender has not committed to the repair or restoration of the Property shall be used first to p~y ~'W amount owing to Lender under this Mortgage, then to pay accrued interest, and the remainder, if any, shall be applied to the princil}~d bala~ce of the Indebtedness. If Lender holds any proceeds after payment in full of the Indebtedness, such proceeds shall be paid to Grant~)r ~s Grantor's interests may appear. LENDER'S EXPENDITURES. If Grantor fails (A) to keep the Property free of all tax~s, liens, security interests, encumbrances, and other claims lB) to provide any required insurance on the Property, or lC) to make repairs ~ the Property then Lender may do so. If any action or proceeding is commenced that would materially affect Lender's interests in the Pr{q)erty, then Lender on Grantor's behalf may, but is not required to, take any action that Lender believes to be appropriate to protect Le]~d~'s interests. All expenses incurred or paid by Lender for such purposes will then bear interest at the rate charged under the Note from tho d,,~,} incurred or paid by Lender to the date of repayment by Grantor. All such expenses will become a part of the Indebtedness and, at Lender's ot~tion` will lA) be payable on demand; lB) be added to the balance of the Note and be apportioned among and be payable with any instalh~,~nt payments to become due during either (1) the term of any applicable insurance policy; or (2) the remaining term of the Note; or lC) be t~,;ated as a balloon payment which will be due and payable at the Note's maturity. The Property also will secure payment of these amounts. Th,~, ri~jhts provided for in this paragraph shall be in addition to any other rights or any remedies to which Lender may be entitled on account of a~W d~fault. Any such action by Lender shall not be construed as curing the default so as to bar Lender from any remedy that it otherwise would hav,~ had. WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of ~1~.~ Property are a part of this Mortgage: Title. Grantor warrants that: la) Grantor holds good and marketable title of r~:~rd to tile Property in fee simple, free and clear of all liens and encumbrances other than those set forth in the Real Property description or ir~ ~ny title insurance policy, title report, or final title opinion issued in favor of, and accepted by, Lender in connection with this Mortga9~.~' ;,~d lb) Grantor has the full right, power, and authority to execute and deliver this Mortgage to Lender. Defense of Title. Subject to the exception in the paragraph above, Grantor warrmds and will forever defend the title to the Property against the lawful claims of all persons. In the event any action or proceeding is comn~ced that questions Grantor's title or the interest of Lender under this Mortgage, Grantor shall defend the action at Grantor's expense. G~antor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented h~ the proceeding by counsel of Lender's own choice, and Grantor will deliver, or cause to be delivered, to Lender such instruments ~s Lender may request from time to time to permit such participation. Compliance With Laws. Grantor warrants that the Property and Grantor's us~; ~}f the Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities. Survival of Promises. All promises, agreements, and statements Grantor has made,~ in this Mortgage shall survive the execution and delivery Offull.this Mortgage, shall be continuing in nature and shall remain in full force a~M ~.4f~;ct until such time as Grantor's Indebtedness is paid in CONDEMNATION. The following provisions relating to condemnation proceedings ~c ~ I)art of this Mortgage: Proceedings. If any proceeding in condemnation is filed, Grantor shall promptly ~otify Lender in writing, and Grantor shall promptly take such steps as may be necessary to defend the action and obtain the award. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented i~ the proceeding by counsel of its own choice, and Grantor will deliver or cause to be delivered to Lender such instruments and docume~tation as may be requested by Lender from time to time to permit such participation. Application of Net PrOceeds. If all or any part of the Property is condemned hy eminent domain proceedings or by any proceeding or purchase in lieu of condemnation, Lender may at its election require that all or ~ny portion of the net proceeds of the award be applied to the Indebtedness or the repair or restoration of the Property. The net proce~}~ts (d the award shall mean the award after payment of all reasonable costs, expenses, and attorneys' fees incurred by Lender in connection ~ith the condemnation. IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating to governmental taxes, fees and charges are a part of this Mortgage: Current Taxes, Fees and Charges. Upon request by Lender, Grantor shall ex,~,~:{d{~ such documents in addition to this Mortgage and take whatever other action is requested by Lender to perfect and continue Lender's li~ or~ tile Real Property. Grantor shall reimburse Lender for ',i,',,!i:~. ~ .... :~ Loan No: 426380092605 MORTGAGE (Con, nue.) ;- 0 8'3 8 Page 3 all taxes, as described below, together with all expenses incurred in recording, perfecting or continuing this Mortgage, including without limitation all taxes, fees, documentary stamps, and other charges for recording ~r registering this Mortgage. Taxes. The following shall constitute taxes to which this section applies: (1) ;, ~;l~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 Grm~tur which Grantor is authorized or required to deduct from payments on the Indebtedness secured by this type of Mortgage; (3) a tax on this type of Mortgage chargeable against the Lender or the holder of the Note; and (4) a specific tax on all or any portion of the In(l~hh~dness or on payments of principal and interest made by Grantor. Subsequent Taxes. If any tax to which this section applies is enacted subsuqu~;nt to the date of this Mortgage, this event shall have the same effect as an Event of Default, and Lender may exercise any or all of its ~v~ilable remedies for an Event of Default as provided below unless Grantor either (1) pays the tax before it becomes delinquent, or (2/ ,:~,~t(.~sts the tax as provided above in the Taxes and Liens section and deposits with Lender cash or a sufficient corporate surety bond (~r ~dl~(~'r security satisfactory to Lender. SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions rulzdi~g to this Mortgage as a security agreement are a part of this Mortgage: Security Agreement. This instrument shall constitute a Security Agreement t~) the extent any of the Property constitutes fixtures, and Lender shall have all of the rights of a secured party under the Uniform Commur~:ial Code as amended from time to time. Security Interest. Upon request by Lender, Grantor shall execute financing st~t,;ments and take whatever other action is requested by Lender to perfect and continue Lender's security interest in the Personal Pr()p~;~ty. In addition to recording this Mortgage Jn the real property records, Lender may, at any time and without further authorizat,,~ trom Grantor, file executed counterparts, copies or reproductions of this Mortgage as a financing statement. Grantor shall r~mburse Lender for all expenses incurred in perfecting or continuing this security interest. Upon default, Grantor shall assemble the l',~.~c)nal Property in a manner and at a place reasonably convenient to Grantor and Lender and make it available to Lender within three 13) (l~Ws after receipt of written demand from Lender. Addresses. The mailing addresses of Grantor (debtor) and Lender (secured p~ h') from which information concerning the security interest granted by this Mortgage may be obtained (each as required by the Unifor~]~ C~)mmercial Code) are as stated on the first page of this Mortgage. FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating [(~ lurtber assurances and attorney-in-fact are a part of this Mortgage: Further Assurances. At any time, and from time to time, upon request of Lucida;r, Grantor will make, execute and deliver, or will cause to be made, executed or delivered, to Lender or to Lender's designee, and when ~uquested by lender, cause to be filed, recorded, refited, or rerecorded, as the case may be, at such times and in such offices and places ,'~.~ Lender may deem appropriate, any and all such mortgages, deeds of trust, security deeds, security agreements, financing statements, c(~minuation statements, instruments of further assurance, certificates, and other documents as may, in the sole opinion of Lender, be ne<:essary or desirable in order to effectuate, complete, perfect, continue, or preserve (1) Grantor's obligations under the Note, this Mortgage, ~,nd ~he Related Documents, and (2) the liens and security interests created by this Mortgage as first and prior liens on the Property, whicH)er now owned or hereafter acquired by Grantor. Unless prohibited by law or Lender agrees to the contrary in writing, Grantor sb~,lt ~ir'nburse Lender for all costs and expenses incurred in connection with the matters referred to in this paragraph. Attorney-in-Fact, If Grantor fails to do any of the things referred to in the I~r,:~ ,ding paragraph, Lender may do so for and in the name of Grantor and at Grantor's expense. For such purposes, Grantor hereby irrevu~;,d~ly appoints Lender as Grantor's attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and doing all other things as may be necessary or desirable, in Lender's sole opinion, to accomplish the matters referred to in the preceding paragraph. FULL PERFORMANCE. If Grantor pays all the Indebtedness when due, and otherwise I~erforms all the obligations imposed upon Grantor under this Mortgage, Lender shall execute and deliver to Grantor a suitable satisfaction of th~s Mortgage and suitable statements of termination of any financing statement on file evidencing Lender's security interest in the Rents and the Persona Property. Grantor will pay, if permitted by applicable law, any reasonable termination fee as determined by Lender from time to EVENTS OF DEFAULT. At Lender's option, Grantor will be in default under this Murtgage if any of the following happen: Payment Default. Grantor fails to make any payment when due under the Indel)h~dness. Default on Other Payments. Failure of Grantor within the time required by thi~ M()rtgage to make any payment for taxes or insurance, or any other payment necessary to prevent filing of or to effect discharge of any lien. Break Other Promises. Grantor breaks any promise made to Lender or Gran[~, fails to perform promptly at the time and strictly in the manner provided in this Mortgage or in any agreement related to this Mortgage. False Statements. Any representation or statement made or furnished to Len<iu~ I)¥ Grantor or on Grantor's behalf under this Mortgage or the Related Documents is false or misleading in any material respect, either no,.~/ o~ at the time made or furnished. Defective Collateralization. This Mortgage or any of the Related Documents (,~¢~s('~s to De in f~ force and effect (including failure of any collateral document to create a valid and perfected security interest or lien) at ~uW [m~e and for any reason. Death or Insolvency. The death of Grantor, the insolvency of Grantor, the apl.~<~i~m~ent of a recmver for any part of Grantor's property, any assignment for the benefit of creditors, any type of creditor workout, or the ~:()~m~encement of any proceeding under any bankruptcy or insolvency laws by or against Grantor. Taking of the Property. Any creditor or governmental agency tries to take an,/ ~)f the Property or any other of Grantor's property in which Lender has a lien. This includes taking of, garnishing of or levying on Grantor'.~ ~,:~;ounts with Lender. Breach of Other Agreement. Any breach by Grantor under the terms o[ any ~)[her agreement between Grantor and Lender that is not remedied within any grace period provided therein, including without limit~ti~n m~y agreemenl concerning any indebtedness or other obligation of Grantor to Lender, whether existing now or later. Events Affecting Guarantor. Any of the preceding events occurs with respec{ [o ,my guarantor, endorser, surety, or accommodation party of any of the Indebtedness or any guarantor, endorser, surety, or accomm,)d,,ti~)n party dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness. RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default ;~r~d at any time thereafter, Lender at Lender's option, may exercise any one or more of the following rights and remedies, in addition to any othu~ r~ghts or remedies provided by law: Accelerate Indebtedness. Lender shall have the right at its option without noti~;u to Grantor to declare the entire Indebtedness immediately due and payable, including any prepayment penalty which Grantor would be required to pay. UCC Remedies. With respect to all or any part of the Personal Property, Lend,~r 5hall have a 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 arr~()~.~ts past due and unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness. In furtherance of this ~igh[, Lender may require any tenant or other user of the Property to make payments of rent or use fees directly to Lender. If the Rents are collected by Lender, then Grantor irrevocably designates Lender as Grantor's attorney-in-fact to endorse instruments received in payment [hereof in the name of Grantor and to negotiate the same and collect the proceeds. Payments by tenants or other users to Lender in r~,~sp~)nse to Lender's demand shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the (J~[~,~nd existed. Lender may exercise its rights under this subparagraph either in person, by agent, or through a receiver. Appoint Receiver. Lender shall have the right to have a receiver appointed t(~ [~t~u t~ossession of all or any par[ of ~he Property, with the power to protect and preserve the Property, to operate the Property preced~nU foreclosure or sale, and to collect the Rents from the Property and apply the proceeds, over and above the cost of the receivership, ~j~s[ the ndebtedness. The recmver may serve without bond if permitted by law. Lender's right to the appointment of a receiver sh~dl exist whether or not the apparent value of the Property exceeds the Indebtedness by a substantial amount. Employment by Lender sh~dl ~)ut disqualify a perso~ from serving as a receiver. Judicial Foreclosure. Lender may obtain a judicial decree foreclosing Grantor's i~d,~,rust in all or any part of the Property. Nonjudicial Sale. Lender may foreclose Grantor's interest in all or in any part gl th,~. Property by non-judicial sale. and specifically by "power MORTGAGE Page 4 Loan No: 426380092605 O~(L~[~-~O (Continued) :~' ' 0 ~ 3 9 of sale" or "advertisement and sale" foreclosure as provided by statute. Deficiency Judgment. If permitted by applicable law, Lender may obtain a juH!jtll~nt for any deficiency remaining in the Indebtedness due to Lender after application of all amounts received from the exercise of the ri(jhh, I)ro¥ided in this section. Tenancy at Sufferance. If Grantor remains in possession of the Property aft~ ~h~ P~operty is sold as provided above or Lender otherwise becomes entitled to possession of the Property upon default of Grantor, G~.~t()~ shall become a tenant at sufferance of Lender or the purchaser of the Property and shall, at Lender's option, either {1) pay a r~,~n~d)l~ rental for the use of the Property, or (2) vacate the Property immediately upon the demand of Lender, Other Remedies. Lender shall have all other rights and remedies provided in th~~, M~rtgage or the Note or available at law or in equity. Sale of the Property. To the extent permitted by applicable law, Grantor her~d)¥ w;~ives any and all right to have the Property marshalled. In exercising its rights and remedies, Lender shall be free to sell all or any i~;.t ~f the Property together or separately, in one sale or by separate sales, Lender shall be entitled to bid at any public sale on all or any p,)~t~(~ of the Property. Notice of Sale. Lender will give Grantor reasonable notice of the time and pl;~(:~, ()f any public sale of the Personal Property or of the time after which any private sale or other intended disposition of the Personal Pro[),~rty is to be made. Reasonable notice shall mean notice 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 cumuiah,,,~ ~nd may be exercised alone or together. An election by Lender to choose any one remedy will not bar Lender from using any other r~]~dy, If Lender decides to spend money or to perform any of Grantor's obligations under this Mortgage, after Grantor's failure to do so, th,,~ <l~;c. ision 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 exp~,~,,~,5 L~nder incurs that in Lender's opinion are necessary at any time for the protection of its interest or the enforcement of its rights, sh:dt become a part of the loan payable on demand, and shall bear interest at the Note rate from the date of expenditure until repaid. Exl)*~n~;(~,s covered by this paragraph include, without limitation, however subject to any limits under applicable law, Lender's expenses for hankr ~q)tcy proceedings (including efforts to modify or vacate the automatic stay or injunction) and appeals, to the extent permitted by applicabk; h~w. NOTICES. Any notice required to be given under this Mortgage, including without hmilation any notice of default and any notice of sale shall be given in writing, and shall be effective when actually delivered, when actually recuiv(~d t)y telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when del~()~,it(~(I in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginni~)(j ()[ this Mortgage, All copies of notices of foreclosure from the holder of any lien which has priority over this Mortgage shall be sent to Len(h,~',~ address, as shown near the beginning of this Mortgage. Any person may change his or her address for notices under this Mortgage by tj~v'i~g formal written notice to the other person or persons, specifying that the purpose of the notice is to change the person's address. For r)~,t,,~¢ I)urposes, Grantor agrees to keep Lender informed at all times of Grantor's current address. Unless otherwise provided or required by law, il th~,~re is more than one Grantor, any notice given by Lender to any Grantor is deemed to be notice given to all Grantors. It will be Grantor',, ~,~'Sl)onsibility ~o tell the others of the notice from Lender. Notwithstanding the foregoing, the address for notice for Lender is: Bank One, P.O. l~<~× 901008, Fort Worth, TX 7610]-2008. IDENTITY OF LENDER. Lender is Bank One, N.A., a national banking association w, iH~ i~,~, main offices located in Columbus. Ohio. NON-WAIVER. A waiver by any party of a breach of a provision of this Mortgag~ ,,h;dl ~ot constitute a waiver of or prejudice the party's right otherwise to demand strict compliance with that provision or any other provision. SUPPLEMENT TO PERSONAL PROPERTY DEFINITION. It is the intention of Lend,:r ()~ly to take a security ~nterest in and retain a lien on that personal property considered fixtures under the Uniform Commercial Code as adopt(~d ,~ the jurisdiction where this Mortgage is filed of record as same may be amended from time to time or such other statute of such jurisdictio~ that defines property affixed to real estate and no other personal property. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part ,,f ti)is Mortgage: Amendments. What is written in this Mortgage and in the Related Docume~t,~; ~s Grantor's entire agreement with Lender concerning the matters covered by this Mortgage. To be effective, any change or amendment ~(~ this Mortgage must be in writing and must be signed by whoever will be bound or obligated by the change or amendment. Caption Headings. Caption headings in this Mortgage are for convenience p~,l),~,~;es only and are not to be used to interpret or define the provisions of this Mortgage. Governing Law. This agreement will be governed by and interpreted in accord;~:(~, with federal law and the laws of the State of Wyoming except for matters related to: {1) interest and the exportation of interest, vvh~'h will be governed by and interpreted n accordance with federal law (including, but not limited to, statutes, regulations, interpretat ohs, ~.~d opinions) and the laws of the State of Ohio; and (2) the validity and enforcement of Lender's security interest in the Property, which wdl h(~ 0overned by the laws of the State where the Property is located. However, if there ever is a question about whether any provision u/ Ih~ ~greemen~ is valid or enforceable, the provision that is questioned will be governed by whichever of the governing state or federal la:x,s that would find the provis~on to be valid and enforceable. The loan transaction which is evidenced by this and other related documents h~s 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 h(,, joint and several, and all references to Grantor shall mean each and every Grantor. This means that each Grantor signing below is respon~;il)l(,~ for all obligations in this Mortgage, No Waiver by Lender. Grantor understands Lender will not give up any of L~:~d~;r's rights under this Mortgage unless Lender does so n writing. The fact that Lender delays or omits to exercise any right will not m~,~ ~l~;~t Lender has given up that right. If Lender does agree in writing to give up one of Lender's rights, that does not mean Grantor will n~l I~ve to comply with the other provisions of this Mortgage. Grantor also understands that if Lender does consent to a request, that does ~,)r mea~ that Grantor will no~ have to get Lender's consent again if the situation happens again. Grantor further understands that just bu~,;~u~;u Lender consents to one or more of Grantor's requests, that does not mean Lender will be required to consent to any of Orantor's f~(L,~' requests. Grantor waives presentment demand for payment, protest, and notice of dishonor. Grantor waives all rights of exempt~<,n hem execution or similar law in the Property, and Grantor agrees that the rights of Lender in the Property under this Mortgage are prior t(. Gr~ntor's rights while this Mortgage remains in effect. Severability. If a court finds that any provision of this Mortgage is not valid or ~,l~{~uld ~ot be enforced, that fact by itself will not mean that the rest of this Mortgage will not be valid or enforced. Therefore, a court will ~,'~furce the rest of the provisions ct this Mortgage even if a provision of this Mortgage may be found to be invalid or unenforceable. Merger. There shall be no merger of the interest or estate created by this Mortu~gu with any other interest or estate in the Property, at any time held by or for the benefit of Lender in any capacity, without the written c()r~,~;~;nt of Lender. Successors and Assigns. Subject to any limitations stated in this Mortgage on h dn,~fer of Grantor's interest, this Mortgage shall be binding upon and inure to the benefit of the parties, their successors and assigns. If owr~;rship of the Property becomes vested in a person other than Grantor, Lender, without notice to Grantor, may deal with Grantor's succ~s,~()rs with reference to this Mortgage and the Indebtednass by way of forbearance or extension without releasing Grantor from the obligati~,~ (~l this Mortgage or liability under the Indebtedness. Time is of the Essence. Time is of the essence in the performance of this Mort~j~e. Waiver of Homestead Exemption. Grantor hereby releases and waives all righr~ m~d benefits of the homestead exemption laws of the State of Wyoming as to all Indebtedness secured by this Mortgage. DEFINITIONS. The following words shall have the following meanings when used i[~ th~,.; Mortgage: Borrower. The word "Borrower" means HENRY A CITTONE and LILIANE CITTOHF, and all other persons and entities signing the Note. Environmental Laws. The words "Environmental Laws" mean any and all st~l(~,, federal and Ioca statutes, regulations and ordinances relating to the protection of human health or the environment, including with()ul limitation the Comprehensive Environmenta Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9(;©1, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous M~.r~ri,ds Transportation Act, 49 U.S.C. Section ]801, e! seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, el ~uq., or other applicable state or federa laws, rules, or regulations adopted pursuant thereto. Event of Default. The words "Event of Default" mean any of the events o~ d~.l~rLd[ set forth in this Mortgage in the events of default Loan No: 426380092605 MORTGAGE ICon, ..edl 'i 0 9',5 0 Page 5 section of this Mortgage. Grantor. The word "Grantor" means HENRY A CITTONE and LILIANE CITTONE. Guaranty. The word "Guaranty" means the guaranty from guarantor, end~,s~r, 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 materi~h, that, because of their quantity, concentration or physical, chemical or infectious characteristics, may cause or pose a present or imtuntial hazard to human health or the environment when improperly used, treated, stored, disposed of, generated, manufactured, t~an,;i)orted or otherwise handled. The words "Hazardous Substances" are used in their very broadest sense and include without limit,t,,~ any and all hazardous or toxic substances, materials or waste as defined by or listed under the Environmental Laws. The term "Hazard~)us 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 impr<~wm~ents, buildings, structures, mobile homes affixed on the Real Property, facilities, additions, replacements and other construction on the ~ 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, modificati~)ns of consolidations of and substitutions for the Note or Related Documents and any amounts expended or advanced by Lender to disch~,rUd Grantor's obligations or expenses incurred ~y Lender ~o enforce Grantor's obligations under this Mortgage, together with interest on su(, ~llnoun[s as provided in this Mortgage. Lender. The word "Lender" means Bank One, UA , its successors and ass~0 ,,~ 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 Lundcr Note. The word "Note" means the promissory note dated October 21, 2004 ill the original principal amount of $103,357.70 from Grantor to Lender, together with all renewals of, extensions of, modificad~,,,~ of, refinancings of, consolidations of, and substitutions for the promissory note or agreement. The maturity date of this Mortgage is Ochd~ur 20, 2024. Personal Property. The words "Personal Property" mean all equipment, fixtures and other articles of personal property now or hereafter owned by Grantor, and now or hereafter attached or affixed to the Rea Pro ~,~'~ty; [c)(jether with all accessions, parts, and additions to, al replacements of, and all substitutions for, any of such property; and togethe~ wm~ all proceeds {including without limitation all insurance proceeds and refunds of premiums) from any sale or other disposition of the Pr, ~)mW. Property. The word "Property" means collectively the Real Property and the Pcrs<)n~ Property. Real Property. The words "Real Property" mean the real property, interests an(~ - gms, as further described in this Mortgage. Related Documents. The words "Related Documents" mean all promissor, no[us credit agreements, loan agreements, environmenta agreements, guaranties, security agreements, mortgages, deeds of trust, st.,cur~t~ deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed n com~ct~o,~ with the Indebtedness Rents. The word "Rents" means all present and future rents, revenues, inc(m=(: ~sues. royalties, profits, and other benefits derived from the Property. EACH GRANTOR ACKNOWLEDGES HAVING 'READ ALL THE PROVISIONS OF THIS MORTGAGE, AND EACH GRANTOR AGREES TO ITS TERMS. x ;~--' ·-r. -'k.MY'k-¢. LILIANE CITIONE' Individually INDIVIDUAL ACKNOWLEDGMENT STATE 10 ,ss COUNTy o. I On this day before me, the undersigned Notary Public, personally appeared HENRY A CITTONE and LILIANE ClTTONE. to me known to be the individuals described in and who executed the Mortgage, one acknowledged that u~c¥ s~gned the Mortgage as their free and voluntary act and deed, for the uses and purposes therein mentioned. Given u~e, my hand and official ,.,1 this ~ I~ day of ~::~'C.)~ ~ , 20~ .