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HomeMy WebLinkAbout905588RECORDATION REQUESTED BY: American Express Bank, FSB Home Lending Headquarters 4315 South, 2700 West Salt Lake, UT 84184 WHEN RECORDED MAIL TO: American Express Bank, FSB Consumer Loan Center (Ph-PCLC-01-1) 2730 Liberty Avenue Pittsburgh, PA 15222 SEND TAX NOTICES TO: TERRY RODGERS LYNNE BRAMMER 15 CHICAGO ST DIAMONDVILLE~WY 83116 RECEIVED 1/s/2005 at 11:20 AM RECEIVIH~-' # 905588 BOOK: 576 PAGE: 315 JE/dJIqE WAGNER LINCOLN COUH t-Y CLERK, KEMMERER, WY SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY MORTGAGE MAXIMUM LIEN. The lien of this Mortgage shall not exceed at a,~,/ one time $55,000.00. THIS MORTGAGE dated December 6, 2004, is made and executud between TERRY RODGERS, whose address is 15 CHICAGO ST, DIAMONDVlLLE, WY 83116 and LYNNE 8RAMMER, whose address is 15 CHICAGO ST, DIAMONDVlLLE, WY 83116; HUSBAND AND WIFE (referred to below as "Grantor") and American Express Bank, FSB, whose address is 4315 South, 2700 West, Salt Lake, UT 84184 (referred to below as "Lender"). GRANT OF MORTGAGE. For valuable consideration, Grantor mortgages and co,vuys to Lender all of Grantor's right, title, and interest in and to the following described real property, together with all existing or subsequentl'~ ,~rccted or affixed buildings, improvements and fixtures; all easements, rights of way, and appurtenances; all water, water rights, waterco~ and ditch rights (including stock in utilities with ditch or irrigation rights); and all other rights, royalties, and profits relating to the re~l l~roI~erty, including without limitation all minerals, oil, gas, geothermal and similar mat~ers, (the "Real Property") located in LINCOLN County, State of Wyoming: See Attached Exhibit A, which is attached to this Mortgage and made a part of this Mortgage as if fully set forth herein. The Real Property or its address is commonly known as 15 CHICAGO ST, DIAMONDVILLE, WY 83116. The Real Property tax identification number is 12-2116-24-3-07-026.00 Grantor presently assigns to Lender all of Grantor's right, title, and interest in a~l ~.:~ ~ll present and future leases of the Property and all Rents from the Property. In addition, Grantor grants to Lender a Uniform Commercial C,,h~ ~curity interest in the Personal Property and Rents. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURll Y INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE {A) PAYMENT OF THE INDEBTEDNESS AND (B) PERFO[~AANCE OF ANY AND ALL OBLIGATIONS UNDER THE NOTE, THE RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGEIS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: PAYMENT AND PERFORMANCE. Except as otherwise provided in this Mortg~t!.,. Grantor shall pay to Lender all amounts secured by this Mortgage as they become due and shall strictly perform all of Grantor's obligatior~:,; [~KJer this Mortgage. POSSESSION AND MAINTENANCE OF THE PROPERTY. Grantor agrees that Or~,r~,,or's possession and use of the Property shall be governed by the following provi~ions: Possession and Use. Until the occurrence of an Event of Default, Grantor ~'~, (1) remain in possession and control of the Property; (2) use, operate or manage the Property; and (3) collect the Rents from the ProI~,~rty. Duty to Maintain. Grantor shall maintain the Property in good condition ar~,J t~romi~tly perform all repairs, replacements, and maintenance necessary to preserve its value. Compliance With Environmental Laws. Grantor represents and warrants t~) I,~)der that: (1) During the period of Grantor's ownership of the Property, there has been no use, generation, manufacture, storage, tre~tr~)~, disposal, release or threatened release of any Hazardous Substance by any person on, under, about or from the Property; (2) Gra~[~r has no knowledge of, or reason to believe that there has been, except as previously disclosed to and acknowledged by Lender in wr~t~,9, (a) any breach or violation of any Environmental Laws, (b) any use, generation, manufacture, storage, treatment, disposal, release; ,~ threatened release of any Hazardous Substance on, under, about or from the Property by any prior owners or occupants of the Propcr~¥. ~r (c) any actual or threatened litigation or claims of any kind by any person relating to such matters; and (3) Except as previously di ;clo~od to and acknowledged by Lender in writing, (a) neither Grantor nor any tenant, contractor, agent or other authorized user of the Pr~,l~,~rw shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from the Property'; ,,nd (b) any such activity shall be conducted in compliance with all applicable federal, state, and local laws, regulations and ordinances;. ~ctuding without limitation all Environmental Laws. Grantor authorizes Lender and its agents to enter upon the Property to make such ir~q~;ct~ons and tests, at Grantor's expense, as Lender may deem appropriate to determine compliance of the Property with this section of th,~ r'..~rtgage. Any inspections or tests made by Lender shall be for Lender's purposes only and shall not be construed to create any respom;~l,~ti[y or liability on the part of Lender to Grantor or to any other person. The representations and warranties contained herein are based ~)~ Grantor's due diligence in investigating the Property for Hazardous Substances. Grantor hereby (1) releases and waives any fu[~[c ckdms against Lender for indemnity or contribution in the event Grantor becomes liable for cleanup or other costs under any such h,,.'..s; and (2) agrees to indemnify and hold harmless Lender against any and all claims, losses, liabilities, damages, penalties, and exl~, ~,,~.~ which Lender may directly or indirectly sustain or suffer resulting from a breach of this section of the Mortgage or as a consequence ~,f m~¥ use, generation, manufacture, storage, disposal, release or threatened release occurring prior to Grantor's ownership or interest in th~ I'[operty, whether or not the same was or should have been known to Grantor. The provisions of this section of the Mortgage, includi~,t [he obligation to indemnify, shall survive the payment of the Indebtedness and the satisfaction and reconveyance of the lien of this Morl!j;,!je and 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 ~<~r commit, permit, or suffer any stripping of or waste on or to the Property or any portion of the Property. Without limiting the generality ,~f the foregoing, Grantor will not remove, or grant to any other party the right to remove, any timber, minerals (including oil and gas), coal, ,:!;,¥, scoria, soil, gravel or rock products without Lender's prior written consent. Removal of Improvements. Grantor shall not demolish or remove any Impr,,w~ments from the Real Property without Lender's prior written consent. As a condition to the removal of any Improvements, Lender may ~,~,tL]~re 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 m~,'/ ,~ter upon the Real Property at all reasonable times to attend to Lender's interests and to inspect the Real Property for purposes of Grant~'~ ,:ompliance with the terms and conditions of this Mortgage. Compliance with Governmental Requirements. Grantor shall promptly coml,l¥ with all laws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable to the use or occupam:¥ ~,~ the Property. Grantor may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceedir~!l, ir)eluding appropriate appeals, so long as Grantor has notified Lender in writing prior to doing so and so long as, in Lender's sole opinio~. [ ,~Jer's interests in the Property are not jeopardized. Lender may require Grantor to post adequate security or a surety bond, reasonably ~,,~]~,lactory to Lender, to protect Lender's interest. Duty to Protect, Grantor agrees neither to abandon or leave unattended th,~ t'r()per[y. Grantor shall do all other acts, in addition to those acts set forth above in this section, which from the character and use of th,; P[operty are reasonably necessary to protect and preserve the Property. TAXES AND LIENS. The following provisions relating to the taxes and liens on ~1~,.. ProI~erty are part of this Mortgage: MORTGAGE (Continued) Page 2 Payment. Grantor shall pay when due (and in all m.,e~!~ prior to delinquency) all taxes, payroll taxes, special taxes, assessments, water charges and sewer service charges levied against ~)r r,~ .~ccount of the Property, and shall pay when due all claims for work done on or for services rendered or material furnished to the Property Grantor shall maintain the Property free of any liens having priority over or equal to the interest of Lender under this Mortgage, except f,)r lh,~se liens specifically agreed to in writing by Lender, and except for the lien of taxes and assessments not due as further specified in the ~i~h? to Contest paragraph. Right to Contest. Grantor may withhold paymerq ,,f ,my tax, assessment, or claim in connection with a good faith dispute over the obligation to pay, so long as Lender's interest in lb,, F'mperty is not jeopardized. If a lien arises or is filed as a result of nonpayment, Grantor shall within fifteen (15) days after the lien ar~:;,~': or, if a lien is flied, within fifteen (15) days after Grantor has notice of the filing, secure the discharge of the lien, or if requested by l er~,ler, deposit with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender in an amount sufficient to disch'~ree the lien plus any costs and attorneys' fees, or other charges that could accrue as a result of a foreclosure or sale under the lien. h~ any contest, Grantor shall defend itself and Lender and shall satisfy any adverse judgment before enforcement against the Property. G,?,r~tor shall name Lender as an additionalobligee under any surety bond furnished in the contest proceedings. Evidence of Payment. Grantor shall upon demand f~i:~h to Lender satisfactory evidence of payment of the taxes or assessments andshall authorize the appropriate governmental official to (leli~ f r to Lender at any time a written statement of the taxes and assessments against the Property. Notice of Construction. Grantor shall notify Lender a~ I,,;~st fifteen (15) days before any work is commenced, any services are furnished, or any materials are supplied to the Property, if any m~,~hanic's lien, materialmen's lien, or other lien could be asserted on account of the work, services, or materials. Grantor will upon rerlt~'~:l ,~[ 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 prows~o~:; relating to insuring the Property are a part of this Mortgage: Maintenance of Insurance, Grantor shall procure and m;~intain policies of fire insurance with standard extended coverage endorsements on a replacement basis for the full insurable value covnrm!l all Improvements on the Real Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard mort(I.~q,~e clause in favor of Lender. Policies shall be written by such insurance companies and in such form as may be reasonably acceptable ~,~ lender. Grantor shall deliver to Lender certificates of coverage from each insurer containing a stipulation that coverage will not be cm~,:,~!led or diminished without a minimum of thirty (30) days' prior written notice to Lender and not containing any disclaimer of the ins~rer'~ liability for failure to give such notice. Each insurance policy also shall include an endorsement providing that coverage in favor of Lend,~r 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 i~ .m area designated by the Director of the Federal Emergency Management Agency as a special flood hazard area, Grantor agrees to obtain ,m~l maintain Federal Flood Insurance, if available, within 45 days after notice is given by Lender that the Property is located in a special fl~?J hazard area, for the full unpaid principal balance of the loan and any prior liens on the property securing the loan, up to the maximum p~,lic.,, limits set under the National Flood Insurance Program, or as otherwise required by Lender, and to maintain such insurance for the term ,~f the loan. Application of Proceeds. Grantor shall promptly not~fv Lender of any loss or damage to the Property. Lender may make proof of loss if Grantor fails to do so within fifteen (15) days of lh~ casualty. Whether or not Lender's security is impaired, Lender may, at Lender's election, receive and retain the proceeds of any ins~r.'m,.~; and apply the proceeds to the reduction of the Indebtedness, payment of any lien affecting the Property, or the restoration and repair Gl lhe Property. If Lender elects to apply the proceeds to restoration and repair, Grantor shall repair or replace the damaged or destroyed Impr,.~,,ements in a manner satisfactory to Lender. Lender shall, upon satisfactory proof of such expenditure, pay or reimburse Grantor from thr~ i~roceeds for the reasonable cost of repair or restoration if Grantor is not in default under this Mortgage. Any proceeds which have ~mt been disbursed within 180 days after their receipt and which Lender has not committed to the repair or restoration of the PropeH,,, ~fi~all be used first to pay any amount owing to Lender under this Mortgage, then to pay accrued interest, and the remainder, if any, shall I,,~ applied to the principal balance of the Indebtedness. If Lender holds any proceeds after payment in full of the Indebtedness, such proc~c(I:~ ~hall be paid to Grantor as Grantor's interests may appear. LENDER'S EXPENDITURES. If Grantor fails (A) to keepth,~ F~roperty free of all taxes, liens, security interests, encumbrances, and other claims, (B) to provide any required insurance on the Property, ~,r !C) to make repairs to the Property then Lender may do so. If any action or proceeding is commenced that would materially affect !,.~,ler's interests in the Property, then Lender on Grantor's behalf may, but is not required to, take any action that Lender believes to be a!,i~r,,i,riate to protect Lender's interests. ANY INSURANCE LENDER PURCHASES MAY BE SIGNIFICANTLY MORE EXPENSIVE AND MAY PROVIDE LESS COVERAGE THAN INSURANCE GRANTOR COULD PURCHASE OTHERWISE. In certain states, the required insurance may be obtain~d th~mgh a licensed insurance agency affiliated with Lender. This agency will receive a fee for providing the required insurance. In addition, ;m ;~lfi'.iate may be responsible for some or all of the underlying insurance risks and may receive compensation for assuming such risks. All exp,~,.,.% 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 bv I ,.r~der to the date of repayment by Grantor. All such expenses will become a part of the Indebtedness and, at Lender's option, will (A) be pm/aisle, on demand; (B) be added to the balance of the Note and be apportioned among and be payable with any installment payments to becr~me due during either (1) the term of any applicable insurance policy; or (2) the remaining term of the Note; or (C) be treated as a ball~,~,~ t~ayment which will be due and payable at the Note's maturity. The Property also will secure payment of these amounts. The rights provid,.,~l l,,r in this paragraph shall be in addition to any other rights or any remedies to which Lender may be entitled on account of any default. Any :~t~:'~ action by Lender 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 provis~,~r~'~ r~lating to ownership of the Property are a part of this Mortgage: Title. Grantor warrants that: (a) Grantor holds .cjood ;~r~,l marketable title of record to the Property in fee simple, free and clear of all liens and encumbrances other than those set forth in the I?, ~,I Property description or in any title insurance policy, title report, or final title opinion issued in favor of, and accepted by, Lender in corm,t, t~,;n with this Mortgage, and (b) 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 pCm~,l~i~h above, Grantor warrants and will forever defend the title to the Property against the lawful claims of all persons. In the event any ~:t~ ~r~ or proceeding is commenced that questions Grantor's title or the interest of Lender under this Mortgage, Grantor shall defend the acti~ ,t Grantor's expense. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the procned~ ! and to be represented in the proceeding by counsel of Lender's own choice, and Grantor will deliver, or cause to be delivered, t~ l,,~der such instruments as Lender may request from time to time to permit such participation. Compliance With Laws. Grantor warrants that the P~,perty and Grantor's use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental authr~ritm';. Survival of Promises. All promises, agreements, a~d ~;~.~ements Grantor has made in this Mortgage shall survive the execution and delivery of this Mortgage, shall be continuing in nature arid ~;Imll remain in full force and effect until such time as Grantor's Indebtedness is paid in full. CONDEMNATION. The following provisions relating to ~:,~r~,l,:mnation proceedings are a part of this Mortgage: Proceedings. If any proceeding in condemnation i:~ fil,~,l. Grantor shall promptly notify Lender in writing, and Grantor shall promptly take such steps as may be necessary to defend the actr,,,~ .md obtain the award. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceedir~!! and to be represented in the proceeding by counsel of its own choice, and Grantor will deliver or cause to be delivered to Lender such i~,truments and documentation as may be requested by Lender from time to time to permit such participation. Application of Net Proceeds. If all or any part of th~ Property is condemned by eminent domain proceedings or by any proceeding or purchase in lieu of condemnation, Lender may at it~ ,~l,:ction require that all or any portion of the net proceeds of the award be applied to the Indebtedness or the repair or restoration of th~? P~,,I~erty. The net proceeds of the award shall mean the award after payment of all reasonable costs, expenses, and attorneys' fees in,';~rr*?l by Lender in connection with the condemnation. IMPOSITION OF TAXES, FEES AND CHARGES BY GOVE~NMENTAL 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 ! ,~der, Grantor shall execute such documents in addition to this Mortgage and take whatever other action is requested by Lender to perf,., t :md continue Lender's lien on the Real Property. Grantor shall reimburse Lender for all taxes, as described below, together with all o.×p~,r~',,~s incurred in recording, perfecting or continuing this Mortgage, including without limitation all taxes, fees, documentary stamps, and ~'.~,.~ charges for recording or registering this Mortgage. .; _-. MORTGAGE ~.. ~ ~ ¢,.~ ~-~' ,~ ~ ~f:~ (Continued) ' Page 3 Taxes. The following shall constitute taxes to which this section applies: (~! ~, Sl}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 ~ir.~ntor which Grantor is authorized or required to deduct from payments on the Indebtedness secured by this type of Mortgage; (3) a ta~: ,,~ Ibis 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 h~,l~:14~.,dness or on payments of principal and interest made by Grantor. Subsequent Taxes. If any tax to which this section applies is enacted sub~;,..,l~..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 it~ ~v~,itable remedies for an Event of Default as provided below unless Grantor either (1) pays the tax before it becomes delinquent, or (:~) ~:ontests the tax as provided above in the Taxes and Liens section and deposits with Lender cash or a sufficient corporate surety bond ~ ,~mer security satisfactory to Lender. SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions ~;I ,~i~g to this Mortgage as a security agreement are a part of this Mortgage: Security Agreement. This instrument shall constitute a Security Agreem~.,m [~ the extent any of the Property constitutes fixtures, and Lender shall have all of the rights of a secured party under the Uniform Com~,,,~.ial Code as amended from time to time. Security Interest. Upon request by Lender, Grantor shall take whatever a~:I~ is requested by Lender to perfect and continue Lender's security interest in the Personal Property. In addition to recording this Mortt].,.i,: ,n the real property records, Lender may, at any time and without further authorization from Grantor, file executed counterparts, copi,.~. ~,~ reproductions of this Mortgage as a financing statement. Grantor shall reimburse Lender for all expenses incurred in perfecting or co~t~u,~g this security interest. Upon default, Grantor shall not remove, sever or detach the Personal Property from the Property. Upon del~,~l~, Grantor shall assemble any Personal Property not affixed to the Property in a manner and at a place reasonably convenient to Grant~,~ ~,nd Lender and make it available to Lender within three (3) days after receipt of written demand from Lender to the extent permitted by ,,~,l~li~ble law. Addresses, The mailing addresses of Grantor (debtor) and Lender (secured I~;,rW) from which information concerning the security interest granted by this Mortgage may be obtained (each as required by the Unif~ Commercial Code) are as stated on the first page of this Mortgage. FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relau~,,j t~) further assurances and attorney-in-fact are a part of this Mortgage: Further Assurances. At any time, and from time to time, upon request of L,:~dur, Grantor will make, execute and deliver, or will cause to be made, executed or delivered, to Lender or to Lender's designee, and wh,.r~ r~;ques~ed by Lender, cause to be filed, recorded, refiled, or rerecorded, as the case may be, at such times and in such offices and place, ,,~ Lender may deem appropriate, any and all such mortgages, deeds of trust, security deeds, security agreements, financing statement~,, ,:~)n~inuation statements, instruments of further assurance, certificates, and other documents as may, in the sole opinion of Lender, be ~, ,:,,~:sary or desirable in order to effectuate, complete, perfect, continue, or preserve (1) Grantor's obligations under the Note, this M~)~[,i,~ge, and the Related Documents, and (2) the liens and security interests created by this Mortgage as first and prior liens on the P~q~urty, whether now owned or hereafter acquired by Grantor. Unless prohibited by law or Lender agrees to the contrary in writing, Grant~,~ ~;l~li reimburse 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 l~,;~:ucling paragraph, Lender may do so for and in the name of Grantor and at Grantor's expense. For such purposes, Grantor hereby irr,:,.~)~;~bly appoints Lender as Grantor's attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and doing all od,,~ 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, including withou~lin~ion all future advances, when due, and otherwise performs all the obligations imposed upon Grantor under this Mortgage, Lender shall (:..,..~:u~e and deliver to Grantor a suitable satisfaction of this Mortgage and suitable statements of termination of any financing statement o~ hi,; uvidencing Lender's security interest in the Rents and the Personal Property. Grantor will pay, if permitted by applicable law, any reasonabl,~ t,:r~nination fee as determined by Lender from time to time. EVENTS OF DEFAULT. At Lender's option, Grantor will be in default under this i'.,~d~ge if any of the following happen: Payment Default. Grantor fails to make any payment when due under the h~d,;l)[o(Jness. Default on Other Payments. Failure of Grantor within the time required by ~l,i~; Mortgage to make any payment 'for taxes or insurance, or any other payment necessary to prevent filing of or to effect discharge of an'.,, h,~n. Break Other Promises. Grantor breaks any promise made to Lender or f~il; t~ I)erform 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 Lur~d~r by Grantor or on Grantor's behalf under this Mortgage or the Related Documents is false or misleading in any material respect, either ~)',,, or at the time made or furnished. Defective Collateralization. This Mortgage or any of the Related Documen~; ,:,;~ses to be in full force and effect (including failure of any collateral document to create a valid and perfected security interest or lien) ~t ~,~y time and for any reason. Death or Insolvency. The death of Grantor, the insolvency of Grantor, the ~*l,l~,imment of a receiver for any part of Grantor's property, any assignment for the benefit of creditors, any type of creditor workout, or tl,,~ ~:o~mencement 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 ~,~,~. ~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 Gr~lur'~ accounts with Lender. However, if Grantor disputes in good faith whether the claim on which the taking of the Property is based i~ ,.,~lid or reasonable, and if Grantor gives Lender written notice of the claim and furnishes Lender with monies or a surety bond satisfactor,,, t~, Lender to satisfy the claim, then this default provision will not apply. Breach of Other Agreement. Any breach by Grantor under the terms of ;~.,, other agreement between Grantor and Lender that is not remedied within any grace period provided therein, including without limit;~lion any agreement 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 resf~,;~ ~) any guarantor, endorser, surety, or accommodation party of any of the Indebtedness or any guarantor, endorser, surety, or accor~,~dation 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 Deh=~l~ ~,nd 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 ,tl~u~ rights or remedies provided by law: Accelerate Indebtedness. Lender shall have the right at its option without r~,~(;e ~o Grantor to declare the entire Indebtedness immediately due and payable, including any prepayment penalty which Grantor would be ~,:quired to pay. UCC Remedies. With respect to all or any part of the Personal Property, L~:[~l~r 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 tak,~ i)~)ssession of the Property, including during the pendency of foreclosure~ whether judicial or non-judicial, and collect the Rents, including ;,~ounts past due and unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness. In furtherance of tt,~ ~idht, Lender may require any tenant or other user of the Property to make payments of rent or use fees directly to Lender. If the Rem..; ~ru collected by Lender, then Grantor irrevocably designates Lender as Grantor's attorney-in-fact to endorse instruments received in pa¥~,~,~m thereof in the name of Grantor and to negotiate the same and collect the proceeds. Payments by tenants or other users to Lender ~r~ r,;sl}onse to Lender's demand shall satisfy the obligations for which the payments are made, whether or not any proper grounds for th~; d~;mand 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;,ke possession of all or any part of the Property, with the power to protect and preserve the Property, to operate the Property pr(.~:~d~ng foreclosure or sale, and to collect the Rents from the Property and apply the proceeds, over and above the cost of the receivershq), ~ga~nst the Indebtedness. The receiver may serve without bond if permitted by law. Lender's right to the appointment of a receive~ ~,h~,ll exist whether or not the apparent value of the Property exceeds the Indebtedness by a substantial amount. Employment by Lender ~,l~;,ll not disqualify a person from serving as a receiver. Judicial Foreclosure. Lender may obtain a judicial decree foreclosing Gramor'~; inlerest in all or any part of the Property. '-' 'u'~ tJ ~"U~ MORTGAGE (Continued) Page 4 Nonjudicial Sale. Lender may foreclose Grantor's int~r.':t in all or in any part of the Property by non-judicial sale, and specifically by "power of sale" or "advertisement and sale" foreclosure as i~r,~' ided by statute. Deficiency Judgment. If permitted by applicable lay.. I ,:nder may obtain a judgment for any deficiency remaining in the Indebtedness due to Lender after application of all amounts received fr~)r~; tt~e exercise of the rights provided in this section. Tenancy at Sufferance. If Grantor remains in possn~;r;i,,r~ of the Property after the Property is sold as provided above or Lender otherwise becomes entitled to possession of the Property ul)r)r~ default of Grantor, Grantor shall become a tenant at sufferance of Lender or the purchaser of the Property and shall, at Lender's opl,.~, either (1) pay a reasonable 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 a~d r~medies provided in this Mortgage or the Note or available at law or in equity. Sale of the Property. To the extent permitted by ~pIfl~r:~d)le law, Grantor hereby waives any and all right to have the Property marshalled. In exercising its rights and remedies, Lender shall h. h,~e to sell all or any part of the Property together or separately, in one sale or by separate sales. Lender shall be entitled to bid at any i~hlic sale on all or any portion of the Property. Notice of Sale. Lender will give Grantor reasonable r~ir:e of the time and place of any public sale of the Personal Property or of the time after which any private sale or other intended dist~hon of the Personal Property is to be made. Reasonable notice shall mean notice given at least ten (10) days before the time of the s;fle or disposition. Any sale of the Personal Property may be made in conjunction with any sale of the Real Property. Election of Remedies. All of Lender's rights and rrm~,~rlies will be cumulative and may be exercised alone or together. An election by Lender to choose any one remedy will not bar Lend,r fr¢~m using any other remedy. If Lender decides to spend money or to perform any of Grantor's obligations under this Mortgage, after Grm~t,,'s failure to do so, that decision by Lender will not affect Lender's right to declare Grantor in default and to exercise Lender's remedin.~;. Attorneys' Fees; Expenses. If Lender institutes any ~;~.~ or action to enforce any of the terms of this Mortgage, Lender shall be entitled to recover such sum as the court may adjudge reasonahl, ~s attorneys' fees at trial and upon any appeal. Whether or not any court action is involved, and to the extent not prohibited by law, all r,~;~sonable expenses Lender incurs that in Lender's opinion are necessary at any time for the protection of its interest or the enforcement .l ~ls rights shall become a part of the Indebtedness payable.on demand and shall bear interest at the Note rate from the date of the exi~<m(Idure until repaid. Expenses covered by this paragraph include, without limitation, however subject to any limits under applicable law, L~[~der's attorneys' fees and Lender's legal expenses whether or not there is a lawsuit, including attorneys' fees and expenses for bankrul)h:¥ i~roceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment colleoti~,r~ .~r~rvices, the cost of searching records, obtaining title reports (including foreclosure reports), surveyors' reports, and appraisal fees and tdl,~ insurance, to the extent permitted by applicable law. Grantor also will pay any court costs, in addition to all other sums provided by NOTICES. Any notice required to be given under this M~rl!l;~!le, including without limitation any notice of default and any notice of sale shall be given in writing, and shall be effective when actually d~.liv.r,,l, when actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight cour~nr..~, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the address~ :d~wn near the beginning of this Mortgage. All copies of notices of foreclosure from the holder of any lien which has priority over this Mort!l;,l- shall be sent to Lender's address, as shown near the beginning of this Mortgage. Any person may change his or her address for notic,.~s ,,~,ler this Mortgage by giving formal written notice to the other person or persons, specifying that the purpose of the notice is to change thC? i~,~rson's address. For notice purposes, Grantor agrees to keep Lender informed at all times of Grantor's current address. Unless otherwise Frovi~l,td or required by law, if there is more than one Grantor, any notice given by Lender to any Grantor is deemed to be notice given to all Grant~-,r~. It will be Grantor's responsibility to tell the others of the notice from Lender. COMPLIANCE WITH ALL LAWS. Grantor shall comlflv ,,i!h all laws respecting ownership or use of the Property. If the Property is a condominium or planned unit development, Grantor shall ,:,,-,Fly with all by-laws, regulations and restrictions of record. MISCELLANEOUS PROVISIONS. The following miscelh~n~',~'~ provisions are a part of this Mortgage: Amendments. What is written in this Mortgage nn,l in H~e Related Documents is Grantor's entire agreement with Lender concerning the matters covered by this Mortgage. To be effectiv,.~. ,r,~ change or amendment to this Mortgage must be in writing and must be signed by whoever will be bound or obligated by the change or ~m,mdment. Caption Headings. Caption headings in this Mortflafl~ nra for convenience purposes only and are not to be used to interpret or define the provisions of this Mortgage. Governing Law. This Mortgage will be governed h¥ m~d interpreted in accordance with federal law and the laws of the State of Utah, except and only to the extent of procedural matters related to the perfection and enforcement of Lender's rights and remedies against the Property, which will be governed by the laws of the St,~te of Wyoming. However, if there ever is a question about whether any provision of this Mortgage is valid or enforceable, the provision that is questioned will be governed by whichever state or federal law would find the provision to be valid and enforceable. The loan tra~;action which is evidenced by the Note and this Mortgage has been applied for, considered, approved and made, and all necessary loan documents have been accepted by Lender in the State of Utah. Joint and Several Liability. All obligations of Grant('~r ~1~ l~r this Mortgage shall be joint and several, and all references to Grantor shall mean each and every Grantor. This means that each Grnnt,,r .:igning below is responsible for all obligations in this Mortgage. No Waiver by Lender. Grantor understands Lend~r ...-..~!l not give up any of Lender's rights under this Mortgage unless Lender does so in writing. The fact that Lender delays or omits to e×<~r~:,~e any right will not mean that Lender has given up that right. If Lender does agree in writing to give up one of Lender's rights, that do,~. ;:~,t mean Grantor will not have to comply with the other provisions of this Mortgage. Grantor also understands that if Lender does cor~¢;~,*~t t,: ,~ request, that does not mean that Grantor will not have to get Lender's consent again if the situation happens again. Grantor furth~'.r ~;r~derstands that just because Lender consents to one or more of Grantor's requests, that does not mean Lender will be required to c.~)r3~, r~t to any of Grantor's future requests. Grantor waives presentment, demand for payment, protest, and notice of dishonor. Grantor ,.'.~ ,~.s all rights of exemption from execution or similar law in the Property, and Grantor agrees that the rights of Lender in the Property undr~r tl~is Mortgage are prior to Grantor's rights while this Mortgage remains in effect. Severability. If a court finds that any provision of lh,~ Mortgage is not valid or should not be enforced, that fact by itself will not mean that the rest of this Mortgage wilt not be valid or enfor(:~l Therefore, a court will enforce the rest of the provisions of this Mortgage even if a provision of this Mortgage may be found to be invali~l ~,r unenforceable. Merger. There shall be no merger of the interest or ,,'l.~te created by this Mortgage with any other interest or estate in the Property at any time held by or for the benefit of Lender in any caI~r:~t >. without the written consent of Lender. Successors and Assigns. Subject to any limitations ~;t,'~t~d in this Mortgage on transfer of Grantor's interest, this Mortgage shall be binding upon and inure to the benefit of the parties, their ~;~,;, ,~ssors and assigns. If ownership of the Property becomes vested in a person other than Grantor, Lender, without notice to Grantor, m~ ,I, ,"fl with Grantor's successors with reference to this Mortgage and the Indebtedness by way of forbearance or extension without reteasir~t! r trantor from the obligations of this Mortgage or liability under the Indebtedness. Time is of the Essence. Time is of the essence in th,~ ~rformance of this Mortgage. Waiver of Homestead Exemption. Grantor hereby r,'h:.m,.~s and waives a!l rights and benefits of the homestead exemption laws of the State of Wyoming as to all Indebtedness secured by this ¢.J,. ~,lage. DEFINITIONS. The following words shall have the follo,.-,'~r~ meanings when used in this Mortgage: Borrower. The word "Sorrower" means TERRY RCd-.,(;ERS and LYNNE BRAMMER and includes all co-signers and co-makers signing the Note. Environmental Laws. The words "Environmental [ ~,.'.'~" mean any and all state, federal and local statutes, regulations and ordinances relating to the protection of human health or the ¢:¢:.~ronment, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amm~,l,:,l 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 (":~/,F;A"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 42 I~ $.C. Section 6901, et seq., or other applicable state or federal laws, rules, or regulations adopted pursuant thereto. Event of Default. The words "Event of Default" rn,.~n any of the events of default set forth in this Mortgage in the events of default section of this Mortgage. MORTGAGE (Continued) Page 5 Grantor. The word "Grantor" means TERRY RODGERS and LYNNE BRAMMEI{ Guaranty. The word "Guaranty" means the guaranty from guarantor, en,t, uu,~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 materiul, Lhut, because of their quantity, concentration or physical, chemical or infectious characteristics, may cause or pose a present or luq.:ntial hazard to human health or the environment when improperly used, treated, stored, disposed of, generated, manufactured, t[,,~sported or otherwise handled. The words "Hazardous Substances" are used in their very broadest sense and include without limil,.lu~,~ ~uW and all hazardous or toxic substances, materials or waste as defined by or listed under the Environmental Laws. The term "Haz~;d,,L)s 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 imlu,, un)(;nts, buildings, structures, mobile homes affixed on the Real Property, facilities, additions, replacements and other construction on ~hu H',,,ul Property. Indebtedness. The word "Indebtedness" means all principal, interest, and rJ~h, r ,mounts, costs and expenses payable under the Note or Related Documents, together with all renewals of, extensions of, modific~[u,~us of, consolidations of and substitutions for the Note or Related Documents and any amounts expended or advanced by Lender to discluu~je Grantor's obligations or expenses incurred by Lender to enforce Grantor's obligations under this Mortgage, together with interest on su, l~ umounts as provided in this Mortgage. Lender. The word "Lender" means American Express Bank, FSB, its succe,~;~,,u~; ~nd 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 Note. The word "Note" means the promissory note dated December 6, 20©q, i~ the original principal amount of $55,000.00 from Grantor to Lender, together with all renewals of, extensions of, modifi(:u~Uu~s of, refinancings of, consolidations of, and substitutions for the promissory note or agreement. The maturity date of this Mortgage is Jmx~ry 2, 2020. Personal Property. The words "Personal Property" mean all equipment, fixturu:;, and other articles of personal property now or hereafter owned by Grantor, and now or hereafter attached or affixed to the Real ProH,¢r~¥; together with all accessions, parts, and additions to, all replacements of, and all substitutions for, ar~y of such property; and togethur with all proceeds (including without limitation all insurance proceeds and refunds of premiums) from any sale or other disposition of the Prulu~r Property, The word "Property" means collectively the Real Property and the P~u~;~nal Property. Real Property. The words "Real Property" mean the real property, interests ~uuJ ~ights, as further described in this Mortgage. Related Documents. The words "Related Documents" mean all promisso~,/ ~xq,_,,s, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, se,:L~r~[¥ deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in c~u ..x;uon with the Indebtedness. Rents. The word "Rents" means all present and future rents, revenues, inc~,rru'., tssuos, royalties, profits, and other benefits derived from the Property. EACH GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF ~IIIS MORTGAGE, AND EACH GRANTOR AGREES TO ITS TERMS. GRANTOR: yRR-Y ~DGERS INDIVIDUAL ACKNOWLEDGMENT ) )SS ) On this day before me, the undersigned Notary Public, personally appeared TERRY RODGERS and LYNNE BRAMMER, HUSBAND AND WIFE, to me known to be the individuals described in and who executed the Mortgage, and ;.d,~u)wledged that they signed the Mortgage as their free and voluntary act and deed, for the uses and purposes ,tz~rein mentioned. Given under my hand and official seal this (~/ day of Notary Public in and for the State of EXHIBIT "A" LEGAL DESCRIPTION O1O353899 PARCEL 58 TO THE TOWN OF DIAMONDVILLE, LINCOLN COUNTY, WYOMING AS DESCRIBED ON THE OFFICIAL PLAT THEREOF.