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HomeMy WebLinkAbout875760RECORDATION REQUESTED BY: The Jackson State Bank P.O.112 CenterB°X 1788Street Jack,on, wY 83001 fl 7 5 7 WHEN RECORDED MAIL TO: The Jackson State Bank P.O.'Box 1788 112 Center Street Jackson, WY 83001 SEND TAX NOTICES TO: ~,OOK_~_PR PAGE The Jackson State Bank P.O. Box 1788 112 Canter Street Jackson, WY 8300~ SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY MORTGAGE MAXIMUM LIEN. The lien of this Mortgage shall not exceed at any o~=te time $17,100.00. THIS MORTGAGE dated August 23, 2001, is made and executed between John F. Byerly and Virginia D. Byerly, Trustees, or their successors in trust, under the John Francis Byerty Living Trust, dated March 23, 1995, and any amendments thereto, whose address is 970 W. Broadway PMB #'t97, Jackson, WY 83001 (referred to below as "Grantor") and The Jackson State Bank, whose address is P.O. !:lox 1788, 112 Center Street, Jackson, WY 83001 (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 subsequent}y erected or affixed buildings, improvements and fixtures; all easements, rights of way, and appurtenances; all water, water rights, watercourses and ditch rights (includin~ stock in utilities with ditch or irrigation rights); and all other rights, royalties, and profits relating to the real property, including without limitation all minerals, oil, gas, geothermal and similar matters, (the "Real Property") located in Lincoln County, State of Wyoming: Lot One Hundred Twenty-Nine (129) in Star Valley Ranch Plat Eighteen (18) as platted and recorded In the official records of Lincoln County, Wyoming. The Real Property or its address is commonly known as Porto Court, Thayne, WY 83127. Grantor presently assigns to Lender alt of Grunter'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 PROPERTY, IS GIVEN TO SECURE (A) PAYMENT OF THE INDEBTEDNESS AND (B) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THE NOTE, THE RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND !:~CCEPTED ON THE FOLLOWING TERMS:' GRANTOR'$ WAIVERS· Grantor waives all rights or defenses aris!rig by reason of any "on~ action" or "anti-deficiency" law, or any other law which may prevent Lender from bringing any action against GrantOr, including a claim for deficiency t0 the extent Lender iS otherwise entitled to a claim for deficiency, before or after Lender's commencement or completion of any foreclosure action, either judicially or by exercise of a power of sale. GRANTOR'S REPRESENTATIONS AND WARRANTIES. Grantor warrants that: (~)this Mortgage is executed at Borrower's request and not at the request of Lender; (b) Grantor has the full power, right, and authority to enter into this Mortgag,; and to hypothecate the Property; (c) the provisions of this Mortgage do not conflict with, or result in a default under any agreement or other instrume:it binding upon Grantor and do not result in a violation of any law, regulation, ~ourt decree or order applicable to Grantor; (d) Grantor has established adequate means of obtaining from Borrower on a continuing basis information about Borrower's financial condition; and (e) Lender has made r~d representation to Grantor about Borrower (including without limitation the creditworthiness of Borrower). PAYMENT AND PERFORMANCE, Except as otherwise provided in this Mortgage, Borrowar shall pay to Lender all Indebtedness secured by this Mortgage as it becomes due, and Borrower and Grantor shall strictly perform all Borrower's and Grunter's obligations under this Mortgage. POSSESSION AND MAINTENANCE OF THE PROPERTY. Borrower and Grantor agree that Borrower's and Grunter'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 Properly. ~, , Duty to Maintain. Grantor shall maintain the Property in good condition and promptiyi: 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 Grunter's ownership of the Property, there has been no use, generation, manufacture, storage, treatment, 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 writing, (a) any breach or violation of any Environmental Laws, (b) any use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the Property by any prior owners or occupants of the Property, or (c) any actual or threatened litigation or claims of any kind by any person relating to such matters; and (3) Except as previously disclosed to and acknowledged by Lender in writing, (a) neither Grantor nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from the Property; and (b) 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 Properly to make such inspections and tests, at Grunter's expense, as Lender'maY.deem appropriate to determine compliance of the Property with tt]is section of the Mortgage. 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 Grunter'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, tosses, liabilities, damages, penalties, and expenses which Lender may directly or indirectly sustain or suffer resulting from a breach of this section of the Mortgage or as a consequence of any use, generation, manufacture, storage, disposal release or threatened release occurring prior to Grunter's ownership or interest in the Property, whether or not the same was or should have been known to Grantor. The provisions of this section of the Mortgage, including the obligation to indemnify, shall survive the payment of the Indebtedness and the satisfaction and rec0nveyance of the lien of this Mortgage 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 nor commi't, 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 wilt not remove, or grant to any other party the right to remove, any timber, minerals (including oil and gas), coal, clay, scoria, soil, grave!~or rock products without Lender's prior written consent. Removal of Improvements. Grantor shall not demolish or remove any Improvememsr'from the Real Property without Lender's prior written consen?. As a condition to the removal of any Improvements, Lender may require Grantor ~o make arrangements satislactory 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 u2on the Real Property at all reasonable times to attend to Lender's interests and to inspect the Real Property for purposes of Grunter's compliance with the terms and conditions of this Mortgage. '(Continued) 3 ~/ii Page 2 Compliance with Governmental Requirements. Grantor shall promptly comply with all iaws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable to the use or occupancy of the Propgrt,·/. Grantor may contest in good faith any such law, ordinance, or regulation and withhord compliance during any proceeding, including appropri~te appeals, so long as Grantor has notified Lender in writing prior to doing so and so long as, in Lender's sole opinion, Lender's Interests in the Property are not jeopardized. Lender may require Grantor to post adequate security or a surety bond, reasonably satisfactory to Lender, to !13rotect Lender's interest. Duty to prOtect. Grantor ag'tees neither to abandon nor leave unattended t~e 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 the Property are reasonably necessary to protect and preserve the Property. · DUE ON SALE - CONSENT BY LENDER. Lender may, at Lender's option, declare immedi,~t~ly 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, title or Interest in the Real Property; whether legal, beneficiar or equitable; whether voluntary or involuntary; whether by outright sale, deed, installment sale contract, land contrac. I;, contract for deed, leasehold interest ~vith a term greater than three (3) years, lease-option contract, or by sale, assignment, or transfer of any benefic;al interest in or to any land trust holding title to the Real· Property, or by any other method of conveyance of 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 Wyom ng law. TAXES AND LIENS. The following provisions relating tq the taxes and liens on the Property are part of this Mortgage: Payment. Grantor shali pay when due (and in all events prior to.delinquency) all taxes, payroll taxes, special taxes, assessments, water cha~'ges and sewer service charges levied against or on account of the Property, and shelf rendered or material furnished to the Property.. Grantor shall maintain the Property free ()f any liens having priority over or equal to the interest of Lender under this Mortgage, except for those liens specifically agreed to in writing by Lender, and except for the lien of 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 c.~nnection with a good faith dispute over the obligation to pay~ so tong as Lender's interest in the Property is not jeopardized, if a lien arises or is f~led as a result of nonpayment, Grantor shall within fifteen (15) days after the Iien arises or, if a lien is filed, within fifteen (15) days after Grantor has potice of the filing, secure the discharge of the lien, or if requested by Lender, deposit with Lender cash or a sufficient corporate surety bond or otlmr security satisfactory to Lender in an amount sufficient to discharge the lien plus any costs and reasonable attorneys' fees, or other charges that could accrue as a result of a foreclosure or sale under the lien. in any contest, Grantor shalt defend itself and Lender and shall satisfy any adverse judgment before enforcement against the Property. Grantor shall name Lender as an additional obligee under any surety bond furnished in the contest proceedings. Evidence of Payment, Grantor shall upon demand furnish to Lender satisfactory evidence of payment of the taxes or assessments and shall authorize the appropriate governmental official to deliver to Lender at any time a written statement Of the taxes and assessments'against the Propedy. Notice of Construction. Grantor shall notify Lender at least fifteen (15) days before any ,,York is commenced, any services are furnished, or any materials are supplied to the Property, if any mechanic's lien, materialmen's lien, or other lien could be asserted on account of the work, services, or materials. Grantor will upon request of Lender furnish to Lender advance assurances satisfactory to Lender that Grantor can and wile pay the cost of such improvements. PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the Property ~!,'e 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 furl insurable value covering all Improvements on the' R~al Pr¢~perty in an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of Lender. Policies sh~ll be written by such insurance companies and in such form as may be reasonabry acceptable to Lender. Grantor shall deliver to Lender ~ertificates of coverage from each insurer containing a stipulation that coverage will not be cancelled or diminished without a minimum of ten (10') C."ays' prior written notice to Lender and not containing any disclaimer of the insurer's liability for failure to give such notice. Each insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired in any way by any act, omission or def~'ult of Grantor or any other person. Should the Real Property be located in an area designated by the Director of the Federal Emergency Mariagement Agency as a special flood hazard area Grantor agrees to obtain .and maintain Fede¢al.FI00d Insurance,' if avaitab e,. w th n '~§ days~'~fter.:~0tiCe is 'given by Lender that.the 'Property is located in a special flood hazard area, for the full unpaid principal' balance of the lean and any p~i0~' liens on the property securing the Ioan, up to the maximum policy limits set under the National Flood Insurance Program, or as otherwise required by Lender, and to maintain such insurance for the term of the leah. Application of Proceeds. Grantor shall promptly notify Lender of any loss or damage t~i, the Property. Lender may make proof of loss if Grantor fails to do so within, fifteen (15) days of the casualty. Whether or not Lender's security i~" impaired, Lender may, at Lender's e[ection,.receive and retain the proceeds of any insurance and apply the proceeds to the reduction of the Indebtedness, payment of any lien affecting the Property, or the restoration and repair of the Property. If Lender elects to apply the proceeds to restoration and repair, Grantor shall repair or replace the damaged or destroyed improvements in a manner satisfactory to Lender. Lender shall, upon satisfactory proof of such expenditure, pay or reimburse Grantor from the proceeds for the reasonable cost of repair or restoration If Gr~ntor Is nol in default under this Mortgage. Any proceeds which have not been disbursed within 180 days after their receipt and which Lender has i~ot committed to the repair or restoration of the Property shall be used first to pay any amount owing to Lender under this Mortgage, then to pay accrued interest, and the remainder, if any, shall be applied to the principal balance of the Indebtedness. if Lender holds any proceeds after Fayment in full of the Indebtedness, such proceeds shall be paid to Grantor as Grunter's interests may appear. ' . Unexpired Insurance at Sale. Any unexpired insurance shall inure to the benefit of, an:t!~ pass to, the p'urchaser of the Propedy covei-ed by this Mortgage at any trustee's sale or other sale held under the provisions of this Mortgage, or at any foreclosure sara of such Property. LENDER'S EXPENDITURES. If Grantor fails (A) to keep the Property free of all taxes, riens, securiiy interests, encumbrances, and other claims,' (B) to provide any required insurance on the Property, or (C) to make repairs to' the Property ihen Lender may do so. if any action or proceeding is commenced that would materially affect Lender's interests in the Property, then Lender on Grunter's behalf may, but is not required to, take any action that Lender believes to be appropriate to protect Lender's interests. All expenses incurred or p~id 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 the date of repayment by Grantor· All such expenses will become a part of the Indebtedness and, at Lender's option, will (A) be payable on demand; (B) be added to the balance of the Note and be apportioned among and be payable with any installment payments to become 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 baltoon payment which will be due and payable at the Nora's maturity. The Mortgage also will secure payment of these amounts. The rights provided for in this paragraph shalt be in addition to any other rights·or any remedies to which Lender may be entitled on account of any default. 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 have had WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the Property are a part of this Modgage: Title. Grantor warrants that: (a) Grantor holds good and 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 Reai Property description or in any title [nsL~rance policy, title report, or final title opinion issued in favor of, and accepted by, Lender in connection with this Mortgage, and (b) Grantor has thefull right, power, and authority to execute and deliver this Mortgage to Lender. Defense of Title. Subject to the exception in the paragraph above, Grantor warrants and will forever defend the title to the Property against the lawful claims of all persons. In the event any action or proceeding is commenced that questions Grantor's title or the interest of Lender under this Mortgage, Grantor shall defend the action at Grunter's expense. Grantor may be the nominal party in"~iuch proceeding, but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of Lender's own choice, and Grantor will deliver, or cause to be delivered, to Lender such instruments as Lender may request from time to tim~; tp permit such participation. Compliance With Laws. Grantor warrants that the Properly and Grantor's use of the Property complies with ali 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 Of this Mortgage, shall be continuing in nature and shall remain id full'force and effect until Su,"'h time as BorroWer's Indebtedness is paid in full. ' CONDEMNATION. The following provisions relating to condemnation proceedings are a part of,this Modgage: Proceedings. If any proceeding in condemnation is filed, Grantor shall promptly notify ~;ender 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 in the proceeding by counsel of its own choice, and Grantor will deliver or cause to be delivered to Lender such instruments and documentation as may be requested by Lender from time to time to permit such participation. Loan No: 33023391 (Continued) Page 3 Application of Net Proceeds. If all or any part of the Property is condemned by eminent <!omain proceedings or by any proceeding or purchase in lieu of condemnation, Lender may at its election require that all or any portion of the net Froceeds of the award be applied to the indebtedness or the repair or restoration of the Property. The net proceeds of the award shall mean the .i=~ward after payment of all reasonable costs, expenses, and attorneys' fees incurred by Lender in connection with the condemnation. :i' IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES.' The..following p~:ovisions relating to governmental taxes, fees and charges are a part of this MOrtgage: Current Taxes, Fees and Charges. Upon request by Lender, Grantor shall execute st.loh documents in addition to this Mortgage and take whatever other action is requested bY Lender to perfect and continue Lender's lien on the'l,'Real Property. Grantor shall reimburse Lender for afl raj<es; 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 or registering this Mortg~,ge. Taxes. The following shall constitute taxes to which this section applies: (1) a specific tax upon this type of Mortgage or upon all or any part of the Indebtedness secured by this Mortgage; (2) a specific tax on Borrower which Borrower is authorized or required to deduc( frGm 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 (~,) a specific tax on all or any portion of the Indebtedness or on payments of prir~cipal and interest made by Borrower. Subsequent Taxes. If any tax to which this section applies is enacted subsequent to the date of this Mortgage, this event shall have the same effect as an Event of Default, and Lender may exercise any or all of its available remedies for an Event of Default as provided below unless Grantor either (1) pays the tax before it becomes delinquent, or (2) contests the tax as provided ~..bove in the Taxes and Liens section and deposits with · Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender. . SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to t?:is Mortgage as a security agreement are a part of this Mortgage: Security Agreement. This instrument shall constitute a Security Agreement to the extent ~:ny of the Property 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 sharl execute financing statements and take whatever other action is requested by Lender to perfect and continue Lender's security interest in the Personal Property. In addition to reco?ding this Mortgage in the real property records, Lender may, at any time and without fudher authorization from Grantor, file executed counterparts, 'Copies or reproductions of this Mortgage as a financing statement. Grantor shall reimburse Lender for all expenses incurred in perfecting or conti~'=~uing this security interest. Upon default, Grantor shall not remove, sever or detach the Personal Property from the Property. Upon default, Grar/'or shall assemble any Personal Properly.not affixed to the Property in a manner and at a place reasonably convenient to Grantor and Lender and, make it available to Lender within three (3) days after receipt of written demand from Lender to the extent permitted by applicable law. . Addresses. The mailing addresses of Grantor (debtor) and Lender (secured party) fr,!:m which information concerning the Security interest granted by this Mortgage may be obtained (each as required by the Uniform Commercial C(de) are as stated on the first page of this Mortgage. FURTHER ASSURANCES; A'I-rORNEY-IN-FACT, The following provisions retating to furt~;~r assurances and attorney-in-f,act ,are'a part of this Modgage: Further Assurances. At any time, and from time to time, upon request of.Lender, Grar~'ior will make, execute and deliver, or will cause to be made, executed or delivered, to Lender or to Lender's designee, and when requestedi:by Lender, cause to be filed, recorded, refiled, or rerecorded, as the case may' be, at such times and in such offices and places as Lendel~ may deem appropriate, any and all such mortgages, deeds of trust, security deeds, security agreements, financing statements, continuation st;~,tements, instruments of further assurance, certificates, and other documents as may, In the sole opinion of Lender, be necessary or desirable 'n order to effectuate, complete, perfect, continue, or preserve (1) Borrower's and Grantor's obligations under the Note, this Mortgage, and thl; Related Documents, and (2) the liens and security interests created by this Mortgage as first and prior liens on the Property, whether now owr,~d or hereafter acquired by Grantor. Unless prohibited by law or Lender agrees to the contrary in writing, Grantor shall reimburse Lender for ail costs and expenses incurred in connection with the matters referred to in this paragraph. Attorney-lnrFacL. If Grantor fa s ,to do.aay 0fthe things .referr~l. to in.,the: precedipg paragraph,. Lender may do so for and in.the name of Grantor and at Grantor's expense. For such purposes, Grantor hereby irrevocably appoints Le~.qder as Grantor's attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and doing all other things as may be !~ecessary or desirable, in Lender's sole opinion, to accomplish the matters referred to fn the preceding paragraph. FULL PERFORMANCE. If Borrower pays ail 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 ~nd 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 permitted by applicable law, any reasonable termination ice as determined by Lender from time to time. EVENTS OF DEFAULT. At Lender's option, Grantor will be in default under this Mortgage if ar~y,: Of the following happen: Payment Default. Borrower fails to make any payment when due under the Indebtedness. Default on Other Payments. Failure of Grantor within the time required by this Mortga.qe 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. Borrower or Grantor breaks any promise made to Lender or !f.ails to perform promptly at ihe time and strictly in t~e manner provided in this Mortgage or in any agreement related to this Mortgage. Default in Favor of Third Parties. Should Borrower or any Grantor default under any Io~:~, extension of Credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that rh,ay materially affect any of Borrower's or any Grantor's property or Borrower's ability to repay the Indebtedness or Borrower's or Grantor's ab!Jify to perform their respective obligations under this Mortgage or any related document . False Statements. Any representation or statement made or furnished to Lender by Bo~"r. ower or Grantor or on Borrower's or Grantor's behalf under this Mortgage or the Related Documents is false or misleading in any material respeCil, either now or at the time made or furnished. Defective Collateralizatlon. This Mortgage or any of the Related Documents ceases to b~..~ in full force and effect (including failure of any collateral document to create a valid and perfected security interest or lien) at any time and for any Insolvency. The dissolution or termination of the Trust, the insolvency of Borrower or !;-~rantor, the appointment of a receiver for any part of Borrower's or Grantor's property, any assignment for the benefit of creditors, any ty~,"~ of creditor ~,orkout, or the commencement of any proceeding under any bankruptcy or insOlvenCy laws by or against Borrower o¢ Gcantor. Taking of the Property. Any creditor or governmental agency tries to take any of the Pro~:ierty or any other of Borrower's or Grantor's property in which Lender has a lien. This includes taking of, garnishing of or levying on Borrower's or Grantor's accounts with Lender. However, if Borrower or Grantor disputes in good faith whether the claim on which the taking of the Property is L~sed is valid or reasonable, and if Borrower or Grantor gives Lender written notice of the claim and furnishes Lender with monies or a surety b¢.:'~d satisfactory to Lender to satisfy the claim, then this default provision will not apply. Breach of Other Agreement. Any breach by Borrower or Grantor under the terms of a~y other agreement between Borrower or Grantor and Lender that is not remedied within any grace period provided therein, including without limi~,~tion any agreement concerning any indebtedness or other obligation of Borrower or Grantor to Lender, whether existing now or later. Events Affecting Guarantor. Any of the preceding events occurs with respect to any guar..antor, endorser, surety, or accommodation pady of any of the Indebtedness or any guarantor, endorser, surety, or accommodation party dies or becomes incompetent, or revokes or disputes the validity of, or iabi ity under, any Guaranty of the Indebtedness. In the event of a death, Lender, at.!ts option, may, but shall not be required to, permit the guarantor's estate to assume unconditionally the obligations arising under the guaranty in a .manner satisfactory to Lender, and, in doing so, cure any Event of Default. Right to Cure. If such a failure is curable and if Borrower or Grantor has not been giv,.'.~n a notice of a breach of the same provision of this Mo!'tgage within the preceding twelve (12) months, it may be cured (and no Event of Deiault will have occurred) if Borrower or Grantor, after Lender sends written notice demanding cure of such failure: (a) cures the failure within fi[teen (15) days; or (b) if the cure requires more than fifteen (15) days, immediately initiates steps sufficient to cure the failure and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default and at any time thereafter, Lender, at Lender's option, may MORTGAGE Loan No: 33023391~*?~'?~',~.:~ ~;. ,.~; ~. ~.~,j (Continued) ' ,)='3~ 2. ~ Page 4 exercise any one or more of the following rights and remedies, [n addition to any other rights or .remedies prov ded by law: Accelerate Indebtedness. Lender shall have the right at it option without notice 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 ali 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 Borrower or Grantor, to take possession of the Property, including during the pendency of foreclosure, whether judicial or non-judicial, and collect the Rents, includint~ 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 ar~y 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 thereof in the name of Grantor and to negotiate the same and collect the proceeds. Payments by tenants or other users to Lender in response to Ler~der's demand shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the demand existed. Lender i~[y exercise its rights under this subparag~raph 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 part of the Property, with the power to protect and preserve the Property, to operate the Property preceding foreclosure or sale, ,~r~d to collect the Rents from the Properly and apply the proceeds, over and above the cost of the receivership, against the Indebtedness. The ~'ece[ver may serve without bond if permitted by law. Lender's right to the appointment of a receiver shall exist whether or not the apparent value of the Property exceeds the Indebtedness by a substantial amount. Employment by Lender sharl not disqualify a person from serving as ~ receiver. Judicial ForeclOsure. ·Lender may obtain a judicial decree foreclosing Grantor's interest i~ ~1[ or any part of the Property. Nonjudicial Sale, Lender may foreclose Grantor's interest in all or in any part of the Prol:erty by non-judicial sale, and specifically by "power of sale" or "advertisement and sale" f°rec[osure as provided by statute. Deficiency Judgment. If permitted by applicable law, Lender may obtain a judgment f~,r any deficiency remaining in the Indebtedness due to Lender after application of all amounts received from the exercise of the rights provided inilhis section. Tenancy at Sufferance, If Grantor remains in possession of the Property after the Property is sold as provided above or Lender otherwise becomes entitled to possession of the Properly upon default of Grantor, Grantor shall become a tenant at sufferance of Lender or 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 the Property immediately upon the demand of Lender. Other Remedies. Lender Shall have all other rights and remedies provided in this Mortga(.e or the Note or available at law or in equity. Sale of the Property, To the extent permitted by applicable law, Borrower and Grantdr hereby waives any and all right to have the Property marshalled. In exercising its rights and remedies, Lender shall be free to sell all or any part of the Properly together or separately, in one sale or by separate sales. Lender shall be entitled to bid at any public sale on all or any portion of the Property. Notice of Sale. Lender will give Grantor reasonable notice of the time and place of any p0btis sale of the Personal Properly or of the time after which any private sale or other Intended disposition of the Personal Property is to be made. Reasonable notice shall mean notice given at least ten (10) days befdre the time of the sale or disposition. Any sale of the Personal Properly may be made in conjunction with any sale of the Real Property. Election of Remedies. All Of Lender's rights and remedies will be cumulative and 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 money or to perform any of Grantor's obligations under this Mortgage, after Grantor's failure to do so, that decision by Lender wil! not affect Lender's right to declare Grantor in default and to exercise Lender's remedies. Attorneys' Fees; Expenses, If Lender Institutes any suit or action to enforce any of the terms of this Mortgage, Lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys' fees at trial and upon any appeal. Whether or not any court action is involved, and to the extent not p~'ohibited by law, all reasonable expenses Lender incurs that in Lender'~ opinion are necessary at any time for the protection of its interest o~' the enforcement of its rights shall become a pad of the IndeStedness payabie on demand and shall bear interest at the Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph include, without limitation, however subject to any limits under applicable law, Lender's reasonable attorneys' fees and Lender's legal expenses whether or not there is a lawsuit, including reasonable attorneys' fees and expenses for bankruptcy proceedings (including efforts to modify or vacat~.r-~ny automatic stay or injunction), appeals, and any anticipated po§t-judgment collection services, the cost of searching records, obtaining tille reports (including foreclosure repods), surveyors' reports, and appraisal fees and title insurance, to the extent permitted by applicable law. 'Grantor also will pay any court costs, in addition to all other sums provided by law. NOTICES. Any notice required to be given under this Mortgage, including without limitation anl; i~otice of default and any notice of sale shall be given in writing, and shall be effective when actually delivered, when actually received by telefacsimih~. (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United State~ mail as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beg nning of this Mortgage. All copies of r'.'o'iices of foreclosure from· the holder of any lien which has priority over this Mortgage shall be sent to Lender's address, as shown near the beginnir~--:l of this Mortgage. Any person may change his or her address for notices under this Mortgage by giving formal written notice to the other person or'p.~;rsons, specifying that the purpose of the notice is to change the person's address. For notice purposes, Grantor agrees to. keep Lender informed at all times of Grantor's current address. UnleSs otherwise provided or required by law, if there is more than one Grantor, any notice given by Lender to a,r~y Grantor is deemed to be notice given to all Grantors. It will be Grantor's responsibility to tell the others of the notice from Lender. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of tt~is Me~age: Amendments. What is written in this Mortgage and in the Related Documents is GrantO"~;,,~! entire agreement with Lender concerning the matters covered by this Modgage. To be effective, any change or amendment to this Mortgage m~.~t 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 purposes ?ly and are not to be used to interpret or define the provisions of this Mortgage. Governing Law. This Mortgage will be governed by and Interpreted In accordance With federal law and the laws of the State of Wyoming, This Mortgage has been accepted by Lender in the State of Wyoming. Choice of Venue. If there is a lawsuit, Grantor agrees upon Lunder'S request t~ submit tb.t~e:jdrisdfctlo~' bf:th~"COuds o~"Tetbn COLJnty, State of Wyoming. Joint and Several Liability. Ail obligations of Borrower and Grantor under this Mortgage Shall be joint and several, and all references to Grantor shall mean each and every Grantor, and all references to Borrower shall mean each and every Borrower. This means that each Borrower and Grantor signing below is responsible for all obligations in this Mortgage. No Waiver by Lender. Grantor understands Lender will 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 exercise 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 does not mean Grantor will not have to comply with the other provisions of this Mortgage. Grantor also understands that if Lender does consent to a request, that does not mean that Grantor will not have to get Lender's consent again if the situation happens again. Grantor fudher understands that just because Lender consents to one or more of Grantor's requests, that does not mean Lender will be required to consent to any of Grantor's future requests. Grantor waives presentment; demand for payment, protest, and notice of dishonor. Grantor waives all rights of exemption from execution or similar law in the Property (inclub!ng without limitation, the homestead exemption), and Grantor agrees that the rights of Lender n the Property under this Mortgage are prior to Graf':tot's rights while this Mortgage remains in effect. Severability. If a court finds that any provision of this Mortgage is not valid or should not be enforced, that fact by itself will not mean that the rest of this.Mortgage will not be valid or enforced. -Therefore, a court wilt enforce the rest of th~: provisions of 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 Modgage with ~ny other interest or estate in the Properly at any time held byor for the benefit of Lender in any capacity, without the written consent of Lender. Successors and Assigns, Subject to any limitations stated in this Mortgage on transfer ol Grantor's interest, this Mortgage shall be binding upon and inure to the benefit of the parties, their successors and assigns. If ownership of the P:'?r~erty becomes vested in a person other than Grantor, Loan No: 33023391 (Continued) Page 5 Lender, without notice to Grantor, may deal with Grantor's successors with reference to this Mortgage and the Indebtedness by way of forbearance or extension without releasing Grantor fr0.rn the obligations of this Mortgage or liability under the Indebtedness. Time IS of the Essence. Time is of the essence in tt.,~ performance of this Mortgage. Waiver of Homestead Exemption. Grantor hereby:releases and waives all rights and benefits of the homestead exemption laws of the State of Wyoming as to all Indebtedness secured by this DEFINITIONS. The following words shall have the followinclI meanings when used in this Mortgage: Borrower. The word "Borrower" means John F. Bye!dy; Virginia D. Byerly; and the John Francis Byedy Living Trust, dated March 23, 1995, and any amendments thereto, and ail other persons and ~,i~tities signing the Note. Environmental Laws. The words "Environmental L~,~fls" mean any and ali state, federal and local statutes, regulations and ordinances relating to the protection of human health or the environment, iil~;luding without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section-~601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Tl'~,nsportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.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" me~.i~ 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 the John Frar~ci.~i;, Byedy Living Trust, dated March 23, 1995, and any amendments thereto. Guaranty. The word "Guaranty" ~ means the guarality frQm guarantor, endorser, ~Urety, o~t 'aCcommodation party to Lender, including without limitation a guaranty of all or part of the Note. Hazardous Substances. The words "Hazardous SObstances" mean materials that, because of their quantity, concentration or physical, chemical or infectious characteristics, may cause or pose a present or potential hazard to human health or the environment when improperly used, treated, stored, disposed of, generated, manufactured, transi~orted or otherwise handled. The words "Hazardous Substances" are used in their very broadest sense and include withotJt 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 a:ll existing and future improvements, buildings, structures, mobile homes affixed on the Real · Property, facilities, additions, replacements and other construction on the Real Property. Indebtedness. The word "Indebtedness" means all principal, interest, and other amounts, costs and expenses payable under the Note or Related Documents, together with all renewals of, extensions of, modifications of, consolidations of and substitutions for the Note or Related Documents and any amounts expended or advanced by Lender to discharge Grantor's obligations or expenses incurred by Lender to enforce Grantor's obligati0ns undei this Mortgage, together with interest on such amounts aS provided in this Mortgage: Lender, The word "Lender" means The Jackson State Bank, 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 Mortga~le between Grantor and Lender. Note, The word "Note" means the promissory nme, dated August 23, 2001, in the original principal amount of $17,100.00 from Borrower to Lender, together with all renewals of, extensions of, modifications of, refinanc[ngs of, consolidations of, and substitutions for the promissory note or agreement. Personal Property. The words "Personal Propertyiiiimean all equipment, fixtures, and other articles of personal property now (~r hereafter owned by Grantor, and now or hereafter attached or affixed,lo the Real Property; together with all accessions, parts, and additions to, all replacements of, and all substitutions for, any of such property; and ~together with all proceeds (including without limitation ail insurance proceeds and refunds of premiums) from any sale or other disposition, of the F.,'i?perty. . Property. Thewbrd'~'P~0per~y'~ means C61'i~CtiWl:Y't!:!b R~a'I' Property and the Per, bi, al P'~oper~;.'~" '' Real Property. The words "Real Property~' mean tf!!~ real property, interests and rights, as further described in this Mortgage. Related Documents. The words "Related DOlL]merits" mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mcrtgages, deeds of trust, security deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. Rents, The word '!Rents" means all present and ?uture rents, revenues, income, issues, royalties, profits, and other benefits derived from the Property. TFE PROVISIONS OF THIS MORTGAGE, AND GRANTOR AGRE .E/S-~/D ITS TERMS. GRANTOR ACKNOWLEDGES HAVING READ ALL ~' Living Trust, dated March 23, 1995, and any Byerty Living Trust, dated March 23, 1995, and any amendments thereto amendments thereto TRUST ACKNOWLEDGMENT C~UNTY~ 0 ' ) appeared John E. Byerly, Trustee and Virginia ~ Byerly, Trust~ of the John Fr~cis Byerly Living Trust, dated March 23, 1995, and any amendments thereto, and known to me to be authoriz~d trustees or agents of the trust that ex~uted the Mo~gage and acknowledged the Mo~gage to be the free and voluntary act and deed of the trust, b~ authority set fodh in the trust documents or, by authority of statute, for the uses and purposes therein menti~d and on oath stated that t~ are auth.orized to ex.ute this Mo~gage and in fact executed the Mo~gage on behalf of the trust.