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HomeMy WebLinkAbout912252 ~'> (:~:~~:::::¡;:m '~';':': : : ~I:I:~!t1 r-'~'''.'-''~ illi;/~ ':;~;;¡i:;·i¡,¡i;lt "þ"_:la..,,;ç· RECORDA'TION REQUESTED BYJpq::o.(rrJ b{ BANK OF THE WEST JACKSON ~~ V\ \ CCÁt~ P.O. BOX 528 160 WEST PEARL STREET JACKSON HOLE. WY 83001 G000°3 ¡;;. ....) RECEIVED 9/27/2005 at 1 :50 PM RECEIVING # 912252 BOOK: 599 PAGE: 233 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY AV1\\', 8tv \ q - Q53-D'\ I} Q&" - Cù After recording, return V 0. recording information to: MORTGAGE, American Title Inc. p.o. Box 390190 MAXIMUM LIEN. The lien of this Mortgage shall not exceed at anyone time $75,000.00. '"7_ Omaha,NEð8139 '~OSCJ1f'2.COO8""2. ì THIS MORTGAGE dated September 15, 2005, is made and executed between JOHN P GAVIN and TERESA A STOVER, HUSBAND AND WIFE AS TENANTS BY THE ENTIRETIES, whose address is 118 HARVEST CIRCLE, ETNA, WY 83118 (referred to below as "Grantor") and BANK OF THE WEST, whose address is P.O. BOX 528, 160 WEST PEARL STREET, JACKSON HOLE, WY 83001 (referred to below as "Lender"). 71 GRANT OF MORTGAGE. For valuable consideration. Grantor mortgages and conveys to lender all of Grantor's right, title, and interest in and to the following described real property, together with all existing or subsequently erected or affixed buildings, improvements and fixtures; all easements, rights of way, and appurtenances; all water, water rights, watercOl;r¡;es and ditch rights (including 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: THE FOLLOWING DESCRIBED REAL PROPERTY IN THE COUNTY OF LINCOLN, STATE OF WYOMING: LOT 2, BLOCK 1 OF NORDIC RANCHES, SUBDIVISION NO.1, LINCOLN COUNTY, WYOMING, ACCORDNIG TO THAT PLAT OF R~CORD IN THE OFFICE OF THE LINCOLN COUNTY CLERK.~ The Real Property or its address is commonly known as 118 HARVEST CIRCLE, ETNA, WY 83118. The Real Property tax identification number is 3619-253-00228-00. REVOL VING LINE OF CREDIT. This Mortgage secures the Indebtedness including. without limitation. a revolving line of credit. which obligates Lender to make advances to Grantor so long as Grant.or complies with all the terms of the Credit Agreement. Such advances may be made. repaid, and remade from time to time. subject to the limitation that the total outstanding balance owing at anyone time, not including finance charges on such balance at a fixed or variable rate or sum as provided in the Credit Agreement. any temporary overages. other charges. and any amounts expended or advanced as provided in either the Indebtedness paragraph or this paragraph, shall not exceed the Credit Limit as provided in the Credit Agreement. It is the intention of Grantor and lender that this Mortgage secures the balance outstanding under the Credit Agreement from time to time from zero up to the Credit Limit as provided in the Credit Agreement and any intermediate balance. Grantor presently assigns to Lender all of Grantor's right, title, and interest in and to all present and future leases of the Property and all Rents from the Property, In addition, Grantor grants to Lender a Uniform Commeréial 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 (AI PAYMENT OF THE INDEBTEDNESS AND (B) PERFORMANCE OF EACH OF GRANTOR'S AGREEMENTS AND OBLIGATIONS UNDER THE CREDIT AGREEMENT. THE RELATED DOCUMENTS. AND THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: PA YMENT AND PERFORMANCE. Except as otherwise provided in this Mortgage, Grantor shall pay to Lender all amounts secured by this Mortgage as they become due and shall strictly perform all of Grantor's obligations under this Mortgage. POSSESSION AND MAINTENANCE OF THE PROPERTY. Grantor agrees that Grantor's possession and use of the Property shall be governed by the following provisions: Possession and 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 Property. Duty to Maintain. Grantor shall maintain the Property in good condition and promptly perform all repairs, replacements, and maintenance necessary to preserve its value. Compliance With Environmental Laws. Grantor represents and warrants to Lender that: (1) During the period of Grantor's ownership of the Property, there has been no use, generation, manufacture, storage, treatment, disposal, release 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, rel.ease 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 witho~Jt limitation all Environmental Laws, Grantor *~~c..~ .'\'b Y-e~ mc..t1oo,:>¡ r~CUl~) eO.::~r::I1J~('ct'?:>J (!JNe¡'ìOi~, Of', c:p.-~J cr h9¡'/,è/Q) n'ø~ db r(ûJy-Ó I ( b ~'f . i~.~I": . ~,. " '.', :.i!:;¡' Loan No: a087204oÿ91,2252 MORTGAGE {Continued} c:oor 04 - ;¿D Page 2 authorizes Lender and its agents to enter upon the Property to make such inspectio~s and tests, at Grantor's expense, as Lender may deem appropriate to determine compliance of the Property with this 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 Grantor's due diligence in investigating the Property for Hazardous Substances. Grantor hereby (1) releases and waives any future claims against Lender for indemnity or contribution in the event Grantor becomes liable for cleanup or other costs under any such laws; and (2) agrees to indemnify and hold harmless Lender against any and all claims, losses, liabilities, damages, penalties, and expenses which Lender may directly or indirectly sustain or suffer resulting from a breach of this section of the Mortgage or as a conseq!.Jence of any use, generation, manufacture, storage, disposal, release or threatened release occurring prior to Grantor'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 reconveyance 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 commit, permit, or suffer any stripping of or waste on or to the Property or any portion of the Property. Without limiting the generality of the foregoing, Grantor will not remove, or grant to any other party the right to remove, any timber, minerals (including oil and gas), coal, clay, scoria, soil, gravel or rock products without Lender's prior written consent. Removal of Improvements. Grantor shall not demolish or remove any Improvements from the Real Property without Lender's prior written consent. As a condition to the removal of any Improvements, Lender may require Grantor to make arrangements satisfactory to Lender to replace such Improvements with Improvements of at least equal value. Lender's Right to Enter. Lender and Lender's agents and representatives may enter upon the Real Property at all reasonable times to attend to Lender's interests and to inspect the Real Property for purposes of Granto-r's compliance with the terms and conditions of this Mortgage. Compliance with Governmental Requirements. Grantor shall promptly co¡r,pfy with all laws, ordinances, and regulations, now or hereafter in effect, of all governmental authoritiés applicable to the use or occupancy C'~ the Property. Grantor may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate 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 protect Lender's interest. Duty to Protect. Grantor agrees neither to abandon or leave unattended the 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. TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property are part of this Mortgage: Payment. Grantor shall pay when due (and in all events prior to delinquency) all taxes, payroll taxes, special taxes, assessments, water charges and sewer service charges levied against or on account of the Property, and shall pay when due all claims for 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 for the Existing Indebtedness referred to in this Mortgage or 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 connection with a good faith dispute over the obligation to pay, so long as Lender's interest in the Property is no'.: jeopardized, If a lien arises or is filed as a result of nonpayment, Grantor shall within fifteen (15) days after the lien arises or, if a lien is filed, within fifteen (15) days after Grantor has notice 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 other 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 shall defend itself and Lender and shall satisfy any adverse judgment before enforcement against the Property, Gran'.:or 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 Property. Notice of Construction. Grantor shall notify Lender at least fifteen (15) days before any work is commenced, any services are furnished, or any materials are supplied to the Property, if any mechanic's lien, materialmen's lien, or other lien could be asserted on 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 will pay the cost of such improvements. PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the Property are a part of this Mortgage: Maintenance of Insurance. Grantor shall procure and maintain policies of fire insurance with standard extended coverage endorsements on a replacement basis for the full insurable value covering all Improvements on the Real Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of Lender. Policies shall be written by such insurance companies and in such form as may be reasonably acceptable to Lender. Grantor shall deliver to Lender certificates of coverage from each insurer containing a stipulation that coverage will not be cancelled or diminished wi'.:hout a minimum of ten (10) days' prior written notice to Lender and not containing any disclaimer of the insurer's liability for failure to give such notice. Each insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired in any way by any act, omission or default of Grantor or any other person. Should the Real Property be located in an area designated by the Director of the Federal Emergency Management Agency as a special flood hazard area. Grantor agrees to obtain and maintain Federal Flood Insurance, if available, for the maximum amount of your credit line and the full unpaid principal balance of any prior liens on the property securing the loan, 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 loan. Application of Proceeds. Grantor shall promptly notify 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 the casualty. Whether or not Lender's security is impaired, Lender may, at Lender's election, receive and retain the proceeds of any insurance and apply the pro¡;eeds to the reduction of the Indebtedness, payment of any lien affecting the Property, or the restoration and repair of the Property. If Lenda;' 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 )¡¡~~¡W:i,'~..' Ij ~.'. ",~, ~~~~f~,,,'~'t~ ,'¡WI" :---' , ~"'>I~"'-' !::;::::i;::::~:;::::¡: O <,V'\" ":.'" r-¡, r-' ~ ....:I .:L"",-,¡¡;;;;'~iId Loan No: ~08720403 MORTGAGE {Continued} (' On ('¡', r; ~..,¡. ~t.)"': ...~) v Page 3 sùch expenditure, payor reimburse Grantor from the proceeds for the reasonable cost of repair or restoration if Grantor is not in default under this Mortgage. Any proceeds which have not been disbu{sed within 180 days after their receipt and which Lender has not committed to the repair or restoration of the Property shall be used f;,i;t 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 payment in full of the Indebtedness, such proceeds shall be paid to Grantor as Grantor's interests may appear. Compliance with Existing Indebtedness. During the period in which any Existing Indebtedness described below is in effect, compliance with the insurance provisions contained in the instrument evidencing such Existing Indebtedness shall constitute compliance with the insurance provisions under this Mortgage, to the extent compliance with the terms of this Mortgage would constitute a duplication of insurance requirement. If any proceeds from the insurance become payable on loss, the provisions in this Mortgage for division of proceeds shall apply only to that portion of the proceeds not payable to the holder of the Existing Indebtedness, LENDER'S EXPENDITURES. If Grantor fails (A) to keep the Property free of all taxes, liens, security interests, encumbrances, and other claims, (8) to provide any required insurance on the Property, (C) to make repairs to the Property or to comply with any obligation to maintain Existing Indebtedness in good standing as required below, then Lender may do so, If any action or proceeding is commenced that would materially affect Lender'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 appropriate to protect Lender's interests. All expenses incurred Dr paid by lender for such purposes will then bear interest at the rate charged under the Credit Agreement 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 Credit Agreement 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 Credit Agreement; or (C) be treated as a balloon payment which will be due and payable at the Credit Agreement's maturity, The Mortgage also will secure payment of these amounts. The rights provided for in this paragraph shall be in addition to any other rights or any remedies to which Lender may be entitled on account of 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 Mortgage: 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 Real Property description or in the Existing Indebtedness section below or in any title insurance policy, title report, or final title opinion issued in favor of, and eccepted by, Lender in connection with this Mortgage, and (b) Grantor has the full right, power, and authority to execute and deliver this Mo~tgage 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 Grantor's EXpense. 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 Lender's own choice, and Grantor will deliver, or cause to be delivered, to Lender such instruments as Lender may request from time to time to permit such participation, Compliance With Laws. Grantor warrants that the Property and Grantor's use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities, Survival of Promises. All promises, agreements, and statements Grantor has made in this Mortgage shall survive the execution and delivery of this Mortgage, shall be continuing in nature and shall remain in full force and effect until such time as Grantor's Indebtedness is paid in fulL EXISTING INDEBTEDNESS. The following provisions concerning Existing Indebtedness are a part of this Mortgage: Existing Lien. The lien of this Mortgage securing the Indebtedness may be secondary and inferior to an existing lien. Grantor expressly covenants and agrees to pay, or see to the payment of, the Existing Indebtedness and to prevent any default on such indebtedness, any default under the instruments evidencing such indebtedness, or any default under any security documents for such indebtedness. No Modification. Grantor shall not enter into any agreement with the holder of any mortgage, deed of trust, or other security agreement which has priority over this Mortgage by which that agreement is modified, amended, extended, or renewed without the prior written consent of Lender. Grantor shall neither request nor accept any future advances under any such security agreement without the prior written consent of Lender. CONDEMNATION. The following provisions relating to condemnation proceedings are a part of this Mortgage: Proceedings. If any proceeding in condemnation is filed, Grantor shatl promptly notify Lender in writing, and Grantor shall promptly take such steps as may be necessary to defend the action and obtain the ê.1wðrd. 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. Application of Net Proceeds. If all or any part of the Property is condemned by eminent domain 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 proceeds 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 award after payment of all reasonable costs, expenses, and attorneys' fees incurred by Lender ill connection with the condemnation. IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating to governmental taxes, fees and charges are a part of this Mortgage: Current Taxes, Fees and Charges. Upon request by Lender, Grantor shail execute such documents in addition to this Mortgage and take whatever other action is requested by Lender to perfect and continue Lender's lien on the Real Property. Grantor shall reimburse Lender for all taxes, as described below, together with all expenses incurred in recorJing, perfecting or continuing this Mortgage, including without limitation all taxes, fees, documentary stamps, and other charges for reCCJrding or registering this Mortgage. 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 Grantor which Grantor is authorized or required to deduct from payments on the Indebtedness secured by this type of Mortgage; (3) a tax on this type of Mortgage chargeable against the Lender or the holder of the Credit Agreement; and (4) a specific tax on all or any portion of the Indebtedness or on payments of principal and interest ~~tIItt ¡,< 1~!lLr . !~I!' <,,'""',......,. ~ ;:i:i1Ù;'~;i; ';';';';';';'.''-'" Loan No: 808720403 O!()""J <rj-z· ,,-r, ~.. '.j.' '. ....,./ --.........-''''"' '-.....~ MORTGAGE {Continued} ~,ont'.Jj 6 '; ,.'" - \_' \) .,,~. ~.' Page 4 made by Grantar. Subsequent Taxes. If any tax to. which this sectian applies is enacted subsequent to. the date af this Martgage, this event shall have the same effect as an Event af Default, and Lender may exercise any ar all af its available remedies far an Event af Default as provided belaw unless Gran!ar either (1) pays the tax befare it becames delinquent, ar (2) cantests the tax as pravided abave in the Taxes and Liens sectian and depasits with Lender cash ar a sufficient carparate surety band ar ather security satisfactary to. Lender. SECURITY AGREEMENT; FINANCING STATEMENTS. The fallawing pravisians relating to. this Martgage as a security agreement are a part af this Martgage: Security Agreement. This instrument shall canstitute a Security Agreement to. the extent any af the Praperty canstitutes fixtures, and Lender shall have all af the rights af a secured party under theUnifarm Cammercial Cade as amended fram time to. time. Security Interest. Upan request by Lender, Grantar shall take whatever actian is requested by Lender to. perfect and cantinue Lender's security interest in the Persanal Property. In additian to. recarding this Martgage in the real property recards, Lender may, at any time and withaut further autharizatian fram Grantar, file executed caunterparts, capies ar reproductians af this Martgage as a financing statement. Grantar shall reimburse Lender far all expenses incurred in perfecting ar cantinuing this security interest. Upan default, Grantar shall nat remave, sever ar detach the Persanal Pro.perty from the Property. Upan default, Grantar shall assemble any Persanal Praperty nat affixed to. the Praperty in a manner and at a place reasanably canvenient to. Granto.r and Lender and make it available to. Lender within three (3) days after receipt af written demand fram Lender to. the extent permitted by applicable law. Addresses. The mailing addresses af Grantar (debtar) and Lender (secured puty) from which infarmatian cancerning the security interest granted by this Martgage may be abtained (each as required by the Unifarm Cammercial Cade) are as stated an the first page af this Martgage. ' FURTHER ASSURANCES; ATTORNEY-IN-FACT. The fallawing provisians relating to. further assurances and attarney-in-fact are a part af this Martgage: Further Assurances. At any time, and from time to. time, upan request af Lender, Grantar will make, execute and deliver, ar will cause to be made, executed ar delivered, to. Lender ar to. Lender's designee, and when requested by Lender, cause to. be filed, recarded, refiled, ar rerecarded, as the case may be, at such times and in such affices and places as Lender may deem apprapriate, any and all such mortgages, deeds af trust, security deeds, security agreements, financing statements, cantinuatian statements, instruments af further assurance, certificates, and ather dacuments as may, in the sale apinian af Lender,. be necessary ar desirable in arder to. effectuate, camplete, perfect, cantinue, ar preserve (1) Grantar's abligatians under the Credit Agreement, this Martgage, and the Related Dacuments, and (2) the liens and security interests created by this Martgage an the Property, whether naw awned ar hereafter acquired by Grantar. Unless prahibited by law ar Lender agrees to. the cantrary in writing, Grantar shall reimburse Lender far all casts and expenses incurred in co.nnectian with the matters referred to in this paragraph, Attarney-in-Fact. If Grantar fails to. do. any af the things referred to. in the preceding paragraph, Lender may do. sa far and in the name af Grantar and at Grantar's expense. Far such purpases, Grantar hereby irrevacably appaints Lender as Grantar's attarney-in-fact far the purpase af making, executing, delivering, filing, recarding, and daing all ather things as may be necessary ar desirable, in Lender's sale apinian, to. accamplish the matters referred to. in the preceding paragmph. FULL PERFORMANCE. If Grantar pays all the Indebtedness when due, terminates the credit line accaunt, and atherwise perfarms all the abligatians impased upan Grantar under this Martgage, Lender shall exeC'Jte and deliver to Grantar a suitable satisfactian af this Martgage and suitable statements af terminatian af any financing statement an file 'evidencing Lender's security interest in the Rents and the Persanal Praperty, Grantar will pay, if permitted by applicable law, any reasanable 'terminatian fee as determined by Lender fram time to. time. EVENTS OF DEFAULT. Grantar will be in default under this Martgage if any af the fallawing happen: (A) Grantar cammlts fraud ar makes a material misrepresentatlan at any time in cannectian with the Credit Agreement. This can include, far example, a false statement abaut Grantar's incame, assets, liabilities, ar any ather aspects af Grantar's financial canditian. (8) Grantor daes nat meet the repayment terms af the Credit Agreement, (C) Grantar's actian ar inactian adversely affects the callateral ar Lender's rights in the callateral. This can include, far example, failure to. maintain required insurance, waste ar destructive use af the dwelling, failure to. pay taxes, death af all persans liable an the accaunt, transfer af title ar sale af the dwelling, creatian af a seniar lien an the dwelling withaut Lender's permissian, fareclasure by the halder af anather lien, ar the use af funds ar the dwelling far prohibited purpases. RIGHTS AND REMEDIES ON DEFAULT. Upan the accurrence af an Event af Default and at any time thereafter but subject to. any limitatian in the Credit Agreement ar any limitatian in this Martgage, Lender, at Lender's aptian, may exercise any ane ar mare af the fallawing rights and remedies, in additian to. any ather rights ar remedies pravided by law: " Accelerate Indebtedness. Lender shall have the right at its aptian withaut natice to. Grantar to. declare the entire Indebtedness immediately due and payable, including any prepayment penalty which Grantar wauld be required to. pay. UCC Remedies. With respect to. all ar any part af the Persanal Praperty, Lender shall have all the rights and remedies af a secured party under the Uniform Cammercial Cade. Callect Rents. Lender shall have the right, withaut natice to. Grantar, to. take passessian af the Praperty, including during the pendency af fareclasure, whether judicial ar nan-judicial, and callect the Rents, including amaunts past due and unpaid, and apply the net proceeds, aver and abave Lender's casts, against the Indebtedness. In furtherance af this right, Lender may require any tenant ar ather user af the Property to. make payments af rent ar use fees directly to. Lender, If the Rents are callected by Lender, then Grantar irrevacably designates Lender as Grantar's attarney-in-fact to. endarse instruments received in payment thereaf in the name af Grantar and to. negatiate the same and callect the proceeds, Payments by tenants or other users to. Lender in respanse to. Lender's demand shall satisfy the abligations far which the payments are made, whether ar nat any praper gro.unds far the demand existed. Lender may exercise its rights under this subparagraph either in person, by agent, ar through a receiver. Appaint Receiver. Lender shall have the right to. have a receiver appainted to. take passessian af all ar any part af the Praperty, with the pawer to. protect and preserve the Praperty, to. ape rate the Praperty preceding fareclasure ar sale, and to. callect the Rents from the Praperty and apply the proceeds, aver and abave the cast af the .receivership, against the Indebtedness. The receiver may serve withaut band if permitted by law. Lender's right to. the appaintment af a receiver shall exist whether ar nat the apparent value of the Property exceeds the Indebtedness by a substantial amaunt. Emplayment by Lf!r1der shall nat disqualify a persan fram serving as a receiver. Judicial Foreclosure. Lender may abtain a judicial decree foreclasing Grantor's interest in all ar any part af the Property. ;::,:;::;!¡¡:;m:~;::: "<+¡.:,:,:.:,:1~ :r'1¥i'&, .'~ ~~-"~"'~I'H,~r~¡,~ ~~~ I ~.::::::~~ ~'::::::::~:~~!¡~;j [j:)'~ ."",,L"l1,L"''<; ~",',:i¡,;,,;I:,ri';-','j-,' .,;.;,:,:,>.- ,',',-, ,' -," Loan No: 80872041;\~}:1:~~2S2 MORTGAGE {Continued} ~O(\""Jj7 '.' ,tJ /" ,.' Page 5 Nonjudicial Sale. lender may foreclose Grantor's interest 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 provided by statuta, Deficiency Judgment. If permitted by applicable law, lender may obtain R judgment for any deficiency remaining in the Indebtedness due to lender after application of all amounts received from the exercise of the rights provided in this 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 Property upon defaUlt of GramOi, 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 raasonable 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 Mortgage or the Credit Agreement or available at law or in equity. Sale of the Property. To the extent permitted by applicable law, Grantor hereby waives any and all right to have the Property marshalled. In exercising its rights and remedies, lender shall be free to søll 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 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 public sale of the Personal Property 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 before the time of the sale or disposition, Any ¡,ale 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 remedies will be cumulative and may be exercised alone or together. An election by lender to choose anyone 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, ôfter Grantor'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 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 prohibited by law, all reasonable expenses lender incurs that in lender's opinion are necessary at any time for the protection of its interest or the enforcement of its rights shall become a part of the Indebtedness payable on demand and shall bear interest at the Credit Agreement 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 after default and referral to an attorney not lender's salaried employee and expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services, the cost of searching records, obtaining title reports (including foreclosure reports), 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 'Nithout limitation any notice of default and any notice of sale shall be given in writing, and shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Mortgage. All copies of notices 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 beginning of this Mortgage. Any person may change his or her address for notices under this Mor~gage by giving formal written notice to the other person or persons, specifying that the purpose of the notice is to change the person's address. F:or notice purposes, Grantor agrees to keep lender informed at all times of Grantor's current address. Unless otherwise provided or required 'Jy law, if there is more than one Grantor, any notice given by lender to any Grantor is deemed to be notice given to all Grantors. It will be Grantor's responsibility to tell the others of the notice from lender. MISCEllANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Mortgage: Amendments. What is written in this Mortgage and in the Related Documents is Grantor's entire agreement with lender concerning the matters covered by this Mortgage. To be effective, any 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 amendment. , .- Caption Headings. Caption headings in this Mortgage are for converiance purposes only and are not to be used to interpret or define the provisions of this Mortgage. Governing law. This Mortgage will be governed by federal law applicable to lender and, to the extent not preempted by federal law, the laws of the State of Wyoming without regard to its conflicts of law provisions. This Mortgage has been accepted by lender in the State of Wyoming. Joint and Several Liability. All obligations of Grantor under this Mortgage shall be joint and several, and all references to Grantor shall mean each and every Grantor. This means that each Grantor signing below is responsible 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 further 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, and Grantor agrees that the rights of lender in the Property under this Mortgage are prior ro Grantor'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 wiii enforce the rest of the 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 Mortgage with any other interest or estate in the Property at any time held by or for the benefit of lender in any capacity, without the v1ritten consent of lender. Successors and Assigns. Subject to any limitations stated in this Mortgage on transfer of Grantor's interest, this Mortgage shall be binding \~~~i": '~." "'::;!_:;;':':;:(;~:" .- :;:,'';:·::~1:_:,:;r·;-... ':::::":::'~'_~i~':,C¡':'~ :; -"-,' '.," ·,:.,_~,1:~'· ¡',"f',:;' .. -:.;j:;:..:.~'¡'¡';', ", ~'-I:!"'~',-~~:--",-'"-.'. . o. () -1j or],. i")¡ '-~"ß ~) _:¿..It.,~~, ~'~"~fI.\t$ MORTGAGE (Continued) ", '0 n)- ,> ~ 8 -' ,\.; .''11 ..., Page 6 loan No: 808720403 upon and inure to the benefit of the parties, their successors and assigns, If ownership of the Property becomes vested in a person other than Grantor, Lender, without notice to Grantor, may deal with Grantor's suècessors with reference to this Mortgage and the Indebtedness by way of forbearance or extension without releasing Grantor from the obligations of this Mortgage or liability under the Indebtedness. Time is of the Essence. Time is of the essence in the 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 Mortgage. DEFINITIONS. The following words shall have the following meanings when used in this Mortgage: Borrower. The word "Borrower" means JOHN P GAVIN and TERESA A STOVER and includes all co-signers and co-makers signing the Credit Agreement and all their successors and assigns. Credit Agreement. The words "Credit Agreement" mean the credit agreement dated September 15, 2005, with credit limit of $75,000.00 from Grantor to Lender, together with all renewals tf, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the promissory note or agreement. The maturity date of this Mortgage is 09-20-2035, NOTICE TO GRANTOR: THE CREDIT AGREEMENT CONTAINS A VARIABLE INTEREST RATE. Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statutes, regulations and ordinances relating to the protection of human health or the environment, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA "), the Superfund Amendments and Reauthorization Act of 1986. Pub. L. No. 99-499 ("SARA "), the Hazardous Materials Transportation 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" mean any of the events of default set forth in this Mortgage in the events of default section of this Mortgage. Existing Indebtedness. The words "Existing Indebtedness" mean the indebtedness described in the Existing Liens provision of this Mortgage. Grantor. The word "Grantor" means JOHN P GAVIN and TERESA A STOVER. Hazardous Substances. The words "Hazardous Substances" 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, transported or otherwise handled. The words "Hazardous Substances" are used in their very broadest sense and include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances" also includes, without limitation, petroleum and petroleum by-products or any fraction thereot and asbestos. Improvements. The word "Improvements" means all 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 'Jther amounts, costs and expenses payable under the Credit Agreement or Related Documents, together with all renewals of, extensions of, .modifications of, consolidations of and substitutions for the Credit Agreement 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 obligations under this Mortgage, together with interest on such amounts as provided in this Mortgage. Lender. The word "Lender" means BANK OF THE WEST, its succer,sprs and assigns. The words "successors or assigns" mean any person or company that acquires any interest in the Credit Agreement. Mortgage. The word "Mortgage" means this Mortgage between Grantor and Lender. Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter owned by Grantor, and now or hereafter attached or affixed to the 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 all insurance proceeds and refunds of premiums) from any sale or other disposition of !ha Property. Property. The word "Property" means collectively the Real Property and the Personal Property. Real Property. The words "Real Property" mean the real property, interests and rights, as further described in this Mortgage. Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security 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 future rents, revenues, income, issues, royalties, profits, and other benefits derived from the Property. EACH GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND EACH GRANTOR AGREES TO ITS TERMS. /Î ~~--- XT~~á _ _ç <~lm~~¡~~!;~~i~t~;. . L".u_"üu·~ml',¡i\' !¡Iir' ". '. ~. I I,-,,~,",·,,¡:-P.cr:~ , I·,·;'.·",·",'.'.t.!..! ::;;::::::::*:::;::;:~ r:" t·-I:':)i· O· ".-""r'. .or;,. ,'. """ , ':::.J ..1._ .'- (,.", oJII : 0 n <~.,J J. 0 .... '«...} (-y ~. '! V loan No: 808720403 MORTGAGE (Continued) Page 7 INDIVIDUAL ACKNOWLEDGMENT STATE OF tùL¡OI11/Ï1S -¡¿Jv r? ) ) SS ) COUNTY OF ~ On this day before me, the undersigned Notary Public, personally appeared JOHN P GAVIN and TERESA A STOVER, to me known to be the individuals described in and who executed the Mortgage, and acknowledged that they signed the Mortgage as their free and voluntary act and deed, for the uses and purposes therein menti?n§.~ Given er my hand and official seal this /!; day of .2¡;J/érn ~ , 20 tJ?: By L/ Þ ~- Residing at lJ /7ûJ / n ¡;'é/ ¿(/L t ' '7 11/ \7" I Notary Public in and for the State of l,l¡ tJ/l7/ns My commission expires ? -t, ,I!J D *Vtœ:bo,v-xJ ~ro\ W\~ Os~, D¡ 1!-ti-S C¡ -,"!:!:::l:~ ~ ......:.~. :~:.c.~:: _ ,<>..~" .~_'" .,. TERESA MAPES - NOTARY PUBUC County of State of lincoln WYoml~ My Commission Expirea5-f¿, -()~ 'i¡~~¡:~'