Loading...
HomeMy WebLinkAbout913974 SJ905 !/'( RECORDATION REQUESTED BY: First Bank of Idaho, fsb Ketchum Office 111 Main Street P. O. Box 9000 Ketchum, ID 83340 ,". ,-, ,é') t'f :'< . : \J ð t V WHEN RECORDED MAIL TO: First Bank of Idaho, fsb Ketchum Office 111 Main Street P. O. Box 9000 Ketchum, ID 83340 RECEIVED 1 '1/28/2005 at 9:26 AM RECEIVING # 913974 BOOK: 605 PAGE: 878 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY SEND TAX NOTICES TO: First Bank of Idaho, fsb Ketchum Office 111 Main Street P. O. Box 9000 Ketchum, ID 83340 SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY MORTGAGE ,~ THIS MORTGAGE dated November 22, 2005, is made and executed between MWW, LLC, a Wyoming Limited Liability Company (referred to below as "Grantor") and First Bank of Idaho, fsb , whose address is 111 Main Street, P. O. Box 9000, Ketchum, 10 83340 (referred to below as "Lender"). GRANT OF MORTGAGE. For valuable consideration, Grantor mortgages and conveys to Lender all of Grantor's rifjlll, title, and interest in and to the following described real property, together with all existing or subsequently erected or affixed buildings, im¡){ùvements and fixtures; all easements, rights of way, and appurtenances; all water, water rigllts, watercourses and ditch rights (including stock in utilitì8s with ditch or irrigation rights); and all other rights, royalties, and profits f8lating 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 37 Forest Meadow Subdivision, according to the official plat thereof recorded in the Office of the County Clerk, Lincoln County, Wyoming The Real Property or its address is commonly known as Lot 37 Forest Meadow Subdivision, Alpine, WY 83'128. The Real Property tax identification number is 37182830210200. Grantor presently assigns to Lender all of Grantor's right, title, and interest in and to all present and future leases of tl Property allCJ all Rents from the Property. In addition, Grantor grants to Lender a Uniform Conlrnercial Code security illterest 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 (BI PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THE NOTE, THE RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECUHITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS ALSO GIVEN TO SECURE ANY AND ALL OF GRANTOR'S OBLIGATIONS UNDER THAT CERTAIN CONSTRUCTION LOAN AGREEMENT BETWEEN GRANTOR AND LENDER OF EVEN DATE HEREWITH. ANY EVENT OF DEFAULT UNDER THE CONSTRUCTION LOAN AGREEMENT, OR ANY OF THE RELATED DOCUMENTS REFERRED TO THEREIN, SHALL ALSO BE AN EVENT OF DEFAULT UNDER THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: PAYMENT AND PERFORMANCE. Except as otherwise provided in this Mortgage, Gremtor shall pay to Lender all amoullts seclll"eI by tllis Mortgage as they become due and shall strictly perform all uf 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 tlie Property. Duty to Maintain. Grantor shall maintain the Property in tenantable condition and promptly perform all repairs, replacements, and main~cnance necessary to preserve its value. Compliance With Environmental Laws. Grantor represents and war lants 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 threat,JI1ed release uf any Hazardous Substance by any person on, under, about or from tlw Property; (2) Gral'rtor has no knowledge of, or reason tu believe that therG has been, except as previously disclosed to and acknuwl8dged by Lemler in writing, (a) an'l I"""ell ur violatiun of any EnvironlJlelltal 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 Lemler in writing, lal neither Grantor nor any tenant, contractor, agent or other authorized user of the Property shall use, gener ate;, manufacture, sture, treat, dispose of or release any Hazardous Substance on, under, abuut or from the Property; al1d Ib) any such activity shall be conducted III complicmce with all applicable federal, state, and local laws, refjulations and ordinances, including \'vithout limitation all Environmental Laws. Gralltor authorizes Lender and its agents to enter upon the Property to make such inspections and tests, at Gral"Jtor's expense, as Lender may deem appropriate to determine compliance pf the Property with this section of the Mortgage. Any inspections or tests made by Lender shall he for Lender's purposes ollly and shall not be construed to create any responsibility or liability on the part of Lender to Grantor or to any oti person. The representations and warranties contained herein are based on Grantor's clue diligence in investigating the Property for Hazardous Substances. Grantor hereby (1) releases and waives any future claims against Lender for indemnity or contributioll in the event Grantor becomes liable for cleanup or other costs under any such lalNs; and (2) agrees to indemnify and hold l1iJrmless 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 consequence 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 Mortgafje 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 foregoillg, 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, fjravel 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 cOlldition 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 mal' enter upon 'he Real Property at all reasonable times to attend to Lender's interests and to inspect the Real Property for purposes of Grantor's compliance with the terms and condi1iol1S of this MortgaçJe. Compliance with Governmental Requirements. Grantor shall promptly comply with all laws, ordillances, and regulations, now or hereafwr in effect, of all governmental authorities applicable to the use or occupancy of the Property, il\cluding without limitation, the Americalls With Disabilities Act. Grantor may contest in good faith any such law, ordinance, or regulation and withhold compliance durinç] any proceeding, including appropriate appeals, so long as Grantor has notified Lender in writing prior to doing so alld so lonfj as, in Lellder's sole opinion, l-ender'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 U""Jer's interest. / J ::;:;:::::« ' .....,.:,.,'.',',',.: Loan No: 494019458 d. :.'.\ ~::~ !~} 1::1- MORTGAGE {Continued} 'ì r~ (j I" n ,}t,ó' J Page 2 Duty to Protect. Grantor agrees nuither 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 fro III the character and use of the Property ar e r<JiJsonably necessar y to protect amj preserve tile Property. CONSTRUCTION LOAN. If some or all of the proceeds of the loan creating the Indebtedness are to be used to construct or complete construction of any Improvements on the Property, the Improvemellts shall be completed no later than the maturity date of tilt: Note (or such earlier date as Lender may reasonably establish) and Grantor shall pay in full all costs and expenses in connection with the work Lender will disburse loan proceeds under such terms and conditions as L8nder may deem reasonably necessary to insure that tl18 interest created by this Mortgage shall have priority over all possible liens, incll:ding those of material suppliers and workmen. Ltmder may require, MllOrlg oth81 things, that disbursement requests be supported by receipted bills, expense affidavits, waivers of liells, cOllstruc:tioll progreos reports, ami slIch other documentatioll as Lender may reasonably request. DUE ON SALE, CONSENT BY LENDER. Lender may, at Lender's option, declare illlllrediately due and payabl" all sun\s secured by this Mortgage upon the sdle or transfer, without Lender's prior written consent, of all or any part of the Real Property, or any interest ill the f1eal Property. A "sale or transfer" means the conveyance of Real Property or any right, title or interest irl the Real Property; whether legal, ¡'dleficlal or equitable; whether voluntary or involuntary; whether by outright sale, deed, installment sale contract, land contract, contract for deed, leasehold interest with a terlll greater than three (3) years, lease'option contract, or by sal", assiglllllent, or transfer of any beneficial interest in or to any land trust holdinlJ title to the Real Property, or by any other Illethod of conveyance of an interest in the Real Property. If any Gralltor is a corporation, partnership or limited liability company, transfer also includes any change in ownership of more than twenty,five pelcerlt (25%) of the voting stock, partnership interests or limited liability company interests, as the case may be, of such Grantor. However, this option shall not be exercised by Lender if such exercise is prohibited by federal la'v cJr b,! Wyoming law. TAXES AND LIENS. The followinfj provisions relatillg to the taxes and liens on the Property are part of this MortgalJe: 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 tl\e Property, and ::hall pay when dlle all claims for work done 011 01 for services rendered or material furnished to the F'roperty. Grantor shall maintain the Property free of any liens havinu priority over or equal to the interest of Lend¿r under this Mortgage, except for thuse li¿ns specifically agreed to in writing by Lender, and Gxcept for the lien of taxes and assessments not due as further specified in the Right to COlltest 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 not 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, Ifiithin fifteen (15) days alter Grantor has nutice uf tile filing, secure the discharge of the lien, or if requested by Lender, deposit with Lend8r cash or a sufficient corporat8 surety bond or other security satisfactory to Lender in an amount sufficient to discharge the lien plus any costs and attorneys' fees, or otller charg"s that could accrue as a result of a foreclosure or sale under the li8n. In 'any contest, Grantor shall 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 ;n 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 befúre any work is commenc"d, any services are fwnishud, or allY materials are supplied to the Property, if any mechanic's lien, materialmen's lien, or other lien cOi"d Ill' aoserted on accoullt of the work, services, or materials. Grantor will upon request of Lender furllish to Lender advance assurances satisfactory to Lender that Grantor can and will pay the cost of such improvements, PROPERTY DAMAGE INSURANCE. The following provisiollS relating to insurillg the Property are a part of this M'Jrtgage: 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. Gralltor sllall also procllfe alld maintain comprehensive general liability insurance in such coverage allloLHlts as Lender may request with Lender being rlamed as additional illsureds in such liability insurance policies. Additiollally, GrantOf shall maintain such other insurance, including but not limited to hazard, busilless interruption and boiler insurance as Lender may require. Policies shall be written by such Illsurance companies and in such fOfm as II lay 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 without a minimum of fifteen (15) days' prior written notice to L(mder am! not cOlltaining 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 perSUl1. 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, within 45 days after notice is given by Lender that the Property is located in a special flood hazard area, for the full unpaid principal balance of the loan and any Ijrior liens on the property securillg 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. LellCJer may make proof uf loss if Grantor fails to do so within fifteen (15) days of the casualty. Whether or 110t Lender's security is impaired, Lellder may, at Lender's election, receive and retain the proceeds of any insurance ami apply the procGcds to the reduction of the IndGbtedness, paymGllt 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, payor reimburse Grantor from the proceeds for the reasonable cost of repair or restoration if Grê1lltor is not in default under this Mortgage. Any proceeds which have rlOt beell disbursed within 180 days after their receipt and vvl\ich Lender has not committed to tile repair or restoration of the Property shall be used first to pay any amollnt owing to Lender umler this Mortgage, then to pay accrued interest, and the remainder, if any, shall be applied to the principal balance of the Indebtedness. If Lendel holds MlY plLilueds after payment in full of the Indebtedness, such proceeds 5hall be paid to Gralltor as Grantor's interests may appear. Grantor's Report on Insurance. Upon request of Lender, however not more than once a year, Grantor shall furnish to Lender a report on each existing policy of insurance showing: (1) the name of the insllfer; (2) the risks insured; (31 the amowlt of the policy; l-lI the property insured, the then current replacement value of such property, and the manner of determining that value; and (5) the ex¡wation date of the policy. Grantor shall, upon request of Lender, have an independent appraiser satisfactory to Lendel determilw the cash value replacement cost of the Property. LENDER'S EXPENDITURES. If any action or proceeding is commenced that would materially affect Lellder's interest ill the f'ropeny or if Grantor fails to comply with any provisioll uf this Mortgage or any Related Documents, including but not limited to Grantor's fiJilurG tu dischårg¿ or pay when due any amounts Grantor is cequired to d;3charge or pay under this Mortgage or any R¿lated Documents, l.ellder on Gral'ltÙr'S I>lô/lålf may (but shall not be obligated to) take any action that Lender deen\s appropriate, including but nut limiTed TO discharlJillg or payillg all td^"s, liens, security interests, encumbrances ami other claims, at any time levied or placed on the Property ailCj paying all costs for insurillg, maintaining aud preserving tile Property. All such expenditures incurred or paid by LeilCjer for such purposes will then bear imerest iJt the rat8 charfjed undel the Note from the date incurred or paid by I ender to the date of repayment by Grdntor. All such expenses will becorne a part of the Illdebtedllcss and, at Lender's option, will (A) be payable on demand; (B) be added to the balance of the Note and be appùrtiolled among am] be payable WiTh any installment payments to become due during either (1 I the term of any applicable insurance policy; or (21 the remaininfj term of The Note; or (C) be treated as a balloon payment which will be due and payable at the Note's maturity. The Mortgage also will secure payment uf these amounts. Such right shall be in addition to all other rights and remedies to which I.cllCJer may be entitled upon Default WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of tile Property are a part of this Mortgage: Title. Grantor warrants that: (a) Grantor holds good and marketable title of record to the Property in reG simple, free and ciGar of all liens and enculilbrances other than those set forth in the Real Property description or in an,! title insuram:e policy, title, repOlt, or final title opinion issued in favor of, and accepted by, Lender in connection with tl,;s Mortgage, and (b) Grantor lidS the full right, power, and authority to execute and deliver this Mortgage to Lender. Defense of Title. Subject to the exception in the paragraph above, Grantor warrants and will forever defeilCj the title to the Property afja;l\st the lawful claims of all persons. In the event any action or proceeding is commenced that questions Grantor's title or tile interest of Lemler under this Mortgafje, Grantor shall defend the action at Grantor's expense. Grantor may be the nominal party in such proceeding, but Lender shall be eiltitled to participate in the proceedillg a"d to be represented in the proceeding by cOllllsel uf Lender's own CI1Uice, and Loan No: 494019458 .i i ;~,~ :':. ~j iÍ , ~-~~. ,. MORTGAGE (Continued) Page 3 "'" ,~ ,...,,'~ \) ~._: 0 U U Grantor will deliver, or cause to be delivered, to Lender SUCll instruments as Lender may request from time to time to per III it such participation. Compliance With Laws. Grantor warrants that the Property and Grantor's use of the Property complies with all existing iJpplicable laINs, ordinances, and regulations of governmental authorities. Survival of Representations and Warranties. All representations, warranties, and agreements made by Grantor il1 this MOltfjage shall survive the execution and delivery of this Mortgage, shall be continuing i,l nature, and shall remain in full force and effect until such time as Grantor's Indebtedness shall be paid in full. CONDEMNA TlON. The following provisions relating to condemnation proceedings are a part of this Mortgage: Proceedings. If any proceeding ill condemnation is filed, Grantor shall promptly notify Lender in writing, and Grantor shall prumptly 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 ill the proceeding and to be represented in the proceeding by counsel of its own choice, and Gral1tor will deliver or cause to be delivered to Lender such instruments alld documentation as may be requested by Lender f,om time to time to permit such participation. Application of Net Proceeds. If all or any part of the Property is condemned by eminent domain procüedings or by any procc[,dillg 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 aViard after payment of all reasonable costs, expenses, and attorneys' fees incurred by Lender in 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 shall execute such documents in addition to this Murtfj3ge and take whatever other action is requested by Lender to perfect alld continue Lender's lien on the Real Property. Grantor sllall reimburse Lender for all taxes, as described below, together with all expenses incurred in recording, perfecting Q( continuing this Mortgafje, including without limitation all taxes, fees, documentary stamps, and other charu,'s for recording or registering this Mortgage. Taxes. The following shall constitute taxes to which this section applies: (1) a specific tax upon this type of Mortgage ur upon all or iJny 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 Note; and (4) a specific tax on all or any portion of the Indebtedness or on payments of principal ami interest made by Grantor. Subsequent Taxes. If any tax to which this section applies is enacted sllbsequent 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 above in the Taxes and Liens section and deposits with Lender cash or a sufficient corporate surety bond or ùtller security satisfactory to I.ender. SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to this Mortgage as a security agreement are a part of this Mortgage: Security Agreement. This instrument shall constitute a Security Agreement to the extent any of the Property constitutes fixtures, and Lender shall have all of the rights of a secured party under the Uniform Commercial Code as ömended from time to time. Secwity Interest. Upon request by Lender, Grantor shall take whatever action is requested by Lellder to perfect and COr1li,lue Lender's security interest in the Rents and Personal Property. In addition to recorclinfj this Mortgage ff1 the real property records, Lender nray, at any time and without further 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 conTilluillg this sec\ffity interest. Upur1 default, GranTOr shall not remove, sever or detach the Personal Property from the Property. Upun default, Grantor shall assemble any PelslJnal Property not affixed to the Property in a manner and at a place reasonably convenient to Grantur 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 mailinfj addresses of Grantor (debtor) and Lender (secured party) from which information concerning the security interest granted by tllis Mortgage may be obtained (each as required by the Uniform Commercial Cùde) are as stated on the first page of this Mortgage. FURTHER ASSURANCES; ATTORNEY-iN-FACT. The following provisions relating to further assurances and attomey-in,fact are a part of this Mortgage: Further Assurances. At any time, and from time to time, upon request of Lender, Grantor will make, execute and deliver, or will cause to be made, executed or delivered, to Lender or to Lender's designee, and when requested by Lender, cause to be filed, recorded, refilecl, or rerecorded, as the case may be, at such times and in such offices and places as Lender may deem appropriaw, any and all such mortfjages, deeds of trust, security deeds, security agreements, financing statements, continuation statements, instruments of further assurar1ce, certificates, and other documents as may, in the sole opinion of Lender, be Ilecessary or desirable in orcler to elfectuate, complete, perfect, continue, or preserve (1) Grantor's obligations under the Note, this Mortgage, and the Related Documents, and (2) the lic;I1S ar1d security interests created by this Mortgage as first and prior liens on the Property, whether now owned or hereafter acquired by C;rantor. Unless prohibited by law or Lender agrees to the contrary in writing, Grantor shall reimburse Lender for all costs .3nd expenses illcurred ill connection with the matters referred to in this paragraph. Attorney-in-Fact. If Grantor fails to do any of the things referr"d to in the preceding paragraph, Lender may clo so for and in the name of Grantor and at Grantor's expense. For such purposes, Grantor hereby irrevocably appoints Lender as Grantor's attomey-in,fact for the purpose of making, executing, delivering, filing, recording, and doing all other things as may be necessary or desirable, in Lender's sole opinion, to accomplish the matters referred to in the preceding paragraph. FULL PERFORMANCE. If Grantor pays all the Indebtedness when due, and otherwise performs all the obligations imposed upon Grantor ulider this Mortgage, Lender shall execute and deliver to Grantor a suitable satisfaction of this Mortgage amj suitable statemenh of tcrlllination of any finallcing 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 fee as determined by Lencler from time to time. EVENTS OF DEFAULT. Each of the following, at Lender's option, shall constrtute an Event of Default under this Mortgage: Payment Default. Grantur fails to make any payment when due under the Indebtedness. Default on Other Payments. Failure of Grantor within the time required ty" this Mortgage to make any payment for taxes or insurance, or any other payment necessary to prevent filing of Or to effect discharge of any lien. Other Defaults, Grantor fails to comply with or to perform any other term, obligation, covenallt or cOllditioll contained in this Mortgage or in any of the Related Documents or to comply with Or to perform any term, cd iligatlon, covenarlt ()r conclition cOlltained in ally other agreement between Lender and Grantor. Default in Favor of Third Parties. Should Grantor default under any loan, extension of credit, security agreement, p\ffchase or sales agreement, or any other agreement, in favor of any other creditor or per son that may materially affect any of Grantor's property or Grantor's ability to repay the Indebtedness or Grantor's ability to perform Grantor's obligations under this Murtgafje or any related document. Faise Statements. Any warranty, representation or statement made or furnished to Lender by Grantor or on Gramm's behalf under this Mortgage or the Related Documents is false or misleading in any material respect, either now or at the time made or fumished or becomes false or misleading at any time thereafter. Defective Collateralization. This Mortgage or any of the Related Documents ceases to be in full force and effect (inclutllllg failure of any collateral document to create a valid and perfected security interest or lien) at any time and for any reason. Death or Insolvency. The dissolutioll of Grantor's (regardless of whether election to corltilllw is macle), any member withdraws from the limited liability company, or any other termination of Grantor's existence as a going business 01 the death of any mernber, the insolvency of Grantor, the appointment of a receiver for any part of Grantor's property, any assifjnment for tile benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against GralHor. Loan No: 494019458 ;. > ;:~: ~:::::;::::: . : ' MOÄ\ÜÂGE ( Continued) -- r) "0 (" :1,-) {~'; 0 () .iL Page 4 Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self,help, repossession or any othc;r method, by any creditor of Grantor or by any governmental agency agalllst any propert',' securing the Indebtedness. This includes a garnishment of any of Grantor's accounts, illcluding deposit accounts, with Lender. How8ver, this E'lent of Default shall not apply if there is a fjood faith dispute by Gralltor as to the validity lJl rea son a bleile,s of the claim which is the basis of the Cleuitor or forfeiture proceeding and if Grantor gives Lenuer written notice of the creditor or forfeiture proceeding and deposits witl, Lender monies or a surety bc,nd for th" creditor or forfeiture proceeding, in all amount determined by Ldlder, in its sole discretion, as beillg an adequate reserve or bOlld for the dispute. Breach of Other Agreement. Any breach by Grantc.r under the ter/lls of any other agreement betvveell Grantor and Lender that is not remedied within any grace period provided therein, including withuut limitation any agreement concerning ¡my illdebtedness or other obligation of Grantor to Lender, whether existing now or later. Events Affecting Guarantor. Any of the preceding eveJl[S occurs with respect to any Guarantor of any of the Indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes the validity uf, or liability under, any Guaranty of the Indebtech18ss. In the event of a death, Lender, at its option, may, but shall not be required to, permit the Guarantor's estate to aSSUll18 uncorlditiollally the oblifjations arising under the guaranty in a manner satisfactory to Lender, and, in doing so, cure any Evc"i! of Default. Adverse Change. A material adverse change occurs in Grantor's financial condition, Or Lender believes the prospect uf paymellt or performance of the Indebtedness is impaired. Insecurity. Lender in good faith believes itse'f insecure. Right to Cure. If any default, other than a default in payment is curable and if Grantor has not been given a notice of 3 breach of the same provision of this Mortgage within the preceding twelve (12) months, it may be cured if Grantor, after receiving written notice from Lend8r demanding cure of such default: (1) cures tile default within fift,;en (15) days; or (2) if the cure requires more than fifteen (15) days, immediately initiates steps which Lender deems in Lender's sole discretion to be sufficient to cure the default and thereafter continues and completes all reasonable and Ilecessary 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 exercise anyone or more of the following rights and remedies, in addition to any other rigllts 01 f(;lIledi,,'; provided by law: Accelerate Indebtedness. Lender shall have the right at its 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 all or any part of the Personal Property, Lender shall have all the rifjhts and remedies of 3 secured party under the Uniform Commercial Code. Collect Rents. Lender shall have the right, without notice to Grantor, to take possession of the Property, includirlg during the pewJency of foreclosure, whether judicial or non'judicial, and collect the Rents, illC;llIding ômounts past due and unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness. In furtherance of this right, Lender may require any tenallt or other user of the Property to make payments of rent or use fees directly to Lender. If the R8nts are collected by Lender, then Grantor irre'/ocably designates Lender as Grantor's attorney-in-fact to endorse instruments receiveJ in payment thereof in the name of Grantor and to IJegotlate the Sdme and collect the proceeds. Payments by tenants or other users to Lender i,l respollse to Lender's demand shall satisfy the ubligations fOr which the payments are made, whether or not any proper grollnds for the demand existed. Lender may exercise its rights ullder this subpara\Jfaph 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 pleceding foreclosure or sale, and to collect the li'"ilts from the Property and apply the proceeds, over and above the cost of the receivership, against the Indebtedlless. The receiver may serve withuut bond if permitted by law. Lender's right to the appointmel¡t of a receiver shall exist whether or not the apparent value of the Property exceeds the Indebtedness by a substantial amount. Employment by Lender shall not disqualify a person from servinfj as a rer.eiver. Judicial Foreclosure. Lender may obtain a judicial decree foreclosing Grantor's interest in all or any part of the Property. Nonjudicial Sale. Lender may foreclose Grantor's interest in all or In any part of the Property by non..judicial "éJle, and sp8l~ifical/y by "powel of sale" or "advertisement and sale" foreclosure as provided by statute. Deficiency Judgment. If permitted by applicable law, Lender may obtain a judgment for allY deficiency remainil1g in the; IIlCJ.:btecl,less clue 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 pro'/idecJ above 01 Lender otherwise becomes entitled to possession of the Property upon default of Grantor, Grantor shall become a tenant at sufferanc;e of Lender or the purchaser of the Property and shall, at Lender's option, either (1) I~ay a reasonable rental for the use of the Property, or (2) 'Jacate the Property immediately upon the demand of Lender. Other Remedies. Lender shall have all other rights and remedies provided in this Mortgage or the Note or available at law or 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 sell all or any part of the Property together or separately, in one sale or by separate sales. Lender shall be entitled to bid at any public sale on all Or any portion of ti,e Property. Notice of Sale. Lender slnll give Grantor reasonable notice of the time ancl place of any public sale of the Personal Property or of the time after which any private sdle or other intended disposition of the P8rsonal Property is to be made. R8asonable notice shall meall notie¡; given at least ten (10) days before the time of the sale or disposition. Any sale of tile Personal Property may be made in conjunction with any sale of the Real Property. Election of Remedies. Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an election to rnake expenditures or to take action to perform an obligation of Gralltor under this Mortgage, after Grantor's failnre to perform, shall not a/i.,ct Lender's right to declare a default and exercise its remedies. Nothing lJI"ler this Mortgafje 01 otherwise shall be construed so as to limit or restrict the rights and remedies availahle to Lender following an Event of Default, or in any way to limit or restrict thp- riohts and ability of Lender to proceed directly against Grantor and/or against any other co'maker, guarantor, surety or endorser and/or to proceed against any other collateral directly or indirectly securing the Indebtedness. Attorneys' Fees; Expenses. If Lender institutes any suit or action to enforce any of the terms of this Mortfjage, Lender shall be entiti"d to recover such surn as the court may adjudge reasonable as attorneys' fe[)s at trial and upon any appeal. Whdhcr or not any court action is involved, and to the extent not prohibited by law, all reasonable expenses Lender incurs that in Lcnder'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 boar interest at the Note rate from the date of the expenditure until repaid. Expens'js covered by this paragraph include, without limitation, however subject to any limits under applicable law, Lender's attorneys' fees and Lender's le(]al expenses whether Or not tlwr8 is a lawsuit, including attorneys' fees and expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic Sid\, 01 injunction), appeals, and any anticipated post-judgment collection services, the cost of searching records, obtaining title reprJl'1s !ìll<;luding foreclosure reports), surveyors' reports, and appraisal fees and title insurance, to the extent permitted b\' applicable law. Grdntor 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 any notice of default ami any notice of sale Slldll be given in writing, and shall be effective whell actually delivered, when actually received by telefacsimile (unless otherwise required by law), wllerl 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 frolll the holder of any lien which has priority over this Mortgage shall be sent to Lender's address, as shown near the beginning of tllis Mortgafje. Any party may change its address for notices under this Mortgage by giving formal written notice to the other parties, specifyillfj that the purpose of the notice is to change the party's ac!dress. For notice purposes, Grantor agrees to Keep l.ender 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 Lcnder'to any G, ,llltor is deemed to be notice given to all Grantors. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Mortgage: Amendments, This Mortgage, together with any Related Documents, constitutes the elltire ullderstanding and agreement of the parties as to the matters set forth in this Mortgage. No alteration of or amelldrnent to this Mortgage shall be effective unless given in writinfj and signed by the party or parties sought to be charged 01 bound by the alteration or amendment. H' Loan No: 494019458- MORTGAGE (Continued) I, ,-.... I',,": I~) () ,.! ~,.; (J (j ¡.:'" Page 5 Annual Reports, If the Property is used for purp05es other tllan Grantol's residenl-:e, Grantor sllall fUfIlish to Lench", LIpUll r8quest, a certified statement of net operating income received from the ProfJerty during Grantor's previoLls fiscal year in suCtl fornl é1lld detail as Lend81 shall require. "Net ofJerating income" shall mean all castl receipts from the Property less all r:a:;11 ~xpenditures nlacle in connection with the operation of the Property. CafJtion Headings. Caption headings in this Mortfjage are for convenience purposes 01111' and are not to be used to interpret or clefllH.: the provisions of this Mortgage. Governing Law. With respect to procedural matters related to the perfection and enforcement of Lender's ri!Jbts against the Property, 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. In all other respects, 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 Idaho without regard to its conflicts of law provisions. However, if there ever is a question about whether any provision of this Mortgage is valid or enforceable, the provision that is questioned will he governed by whichever state or federal law would find the provision to be valid and enforceable. The loan transaction that is evidenced by the Not" and this Mortgage has been applied for, considered, approved and made, and all necessary loan documents have been accepted by Lender in the State of Idaho. No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Mortgage unless such waiver is given ill writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a pruvision of this Mortgage shall not prejudice or constitute a waiver of Lemler's fl\Jht otherwise to demand strict compliance with that provision or any other provision of this Murtgage. f'Jo prior waiver by Lender, nor any cOLlfse of dealing between Lender and Grantor, shall constitute a waiver of any of Lender's rights or of any of Grantor's obligations as to arlY future transactions. Whenever the consent of Lender is required under this Mortgage, the granti,lg of such consent by Lender ill any instance shall not constitute continuing consent to subsequent instances where such CC!l15ellt is required and in all cases such consent mal' be fjranted or withheld in the sole discretion of Lender. Severability. If a court of competent jurisdiction fillCls any provision of this Mortgage to be illefjal, ilwalid, or unenforceable as to any circumstance, that finding shall not make the offending provision illefjal, invalid, or ullellforceable as to any other circumstance. If feasible, the offending provision shall be considered modified so that it becomes lefjal, valid and enforceable. II the offend'ng provision cannot be so modified, it shall be considered deleted from this Mortgage. Unless otherwise required by law, the illegality, invalidity, or ullelllorceability of allY provision of this Mortgage shall not affect the legality, validity or enforceability of any other provisioll 01 this Mortgage. 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 written consent of Lender. Successors and Assigns. Subject to any limitations stated ill this Mortgage on transfer of Grantor's interest, this Mortga\Je shall be binding upon and inure to the benefit of th~ 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 successors with reference to this Mortgage and the Illdebtedness by way of forbearance or extension without releasing Grantor from the obligations of this Mortgage or liability under the Illdebtedlless. 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 (;f the homestead exemptioll laws of the State of Wyoming as to all Indebtedness secured by this Mortgage. DEFINITIONS. The following capitalized words and terms shall have the followinfj meanings when used in this Mortgôge. Unless specifically stated to the contrary, ail referellces to dollar amounts shall mean amounts in lawful rnoney uf the United States of America. \¡Vc¡rds alld terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Mortgage shall have the meanings attributed to such terms in the Uniform Comlllercial Code: Borrower. The word "Borrower" means MWW, LLC and includes all co'sifjners and co-makers signing the Note and all their SUCCl,SSorS and assigns. " Default. The word "Default" means the Default set forth in this Mortgage in the section titled "Default". 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 Amel'lllments ami Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), The Hazardous Materials Transportation Act, 49 U.S.C. Sectioll 1801, el ',eq., 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 Mortgafje ill the events of default section of this Mortgage. Grantor. The word "Grantor" means MWW, LLC. Guarantor. The word "Guarantor" means any guarantor, surety, or accomn1udation party of any or all of the IllClebtedness. Guaranty. The word "Guaranty" means the guaranty from GIl¿Hantor to Lender, includillg without limitation a gu~r'"lty of all or part of the Note. 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 IHllnall health or the envirunlllel'lt when improperly used, treated, stored, disposed of, fjenerated, manufactured, transported or otherwise handled. The words "Hazardous Substances" are used in their very broadest sense and include without linlÌtation any and all hazardous or toxic substances, materials or waste as defined by or listed under the EIlVironmental Laws. The term "Hazardous Substances" also includes, without limitation, petroleum and petroleum by-products or any fraction thereof and asbestos. Improvements. The word "Improvements" means all existing and future improvemellts, buildings, structures, mobile hOllies affixed on the Real Property, facilities, additions, replacements and otller cOllstruction on the Real Property. Indebtedness. The word "Indebtedness" means all principal, interest, alld other amounts, costs and expenses pa'/"hle under the Note or Related Documents, together with all renewals of, extensions of, modifications of, consolidations (;f 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 obligations under this Mortgage, together with interest on suerl amounts as provided in this Mortfjage. Lender. The word "Lender" means First Bank of Idaho, fsb , its successors and assigns. Mortgage. The word "Mortgage" means this Mortgage between Grantor alld Lender. Note. The word "Note" means the promissory note dated Novenlber 22,2005, in the original principal amount of $249,900.00 from Grantor to Lender, together with all renewals of, extellsions of, modifications of, refinancings of, cOllsolidations of, ami substitutions for the promissory note Or agreement. The maturity date of this Mortfjage is November 28, 2006. NOTICE TO GRANTOR: THE NOTE CONTAINS A VARIABLE INTEREST RATE. 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, ami additions to, all replacements of, ami all substitutions for, any of such property; and tOfjether with all proceeds lincludinfj without limitatiull all insurance proceeds and refunds of premiums) from any sale Dr other disposition of the Property. Property. The word" Property" means collectively the Real Property and the Persollid Property. Real Property. The words "Real Property" mean the real property, interests alld rights, as further describ,"d ill tl11s M(¡rïçJage. Related Documents. The words "Related Documents" lliean all promissory notes, credit agreements, loan agreem8nts, erwironnwntal agreements, guaranties, security agreements, mortgafjes, deeds of trust, security deeds, collateral mortgages, ancJ all other instrumellts, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. Rents. The word "Rents" means all present and future rents, reVt"lUes, income, issues, royalties, profits, and othel bendits deri'J8cJ fronl the Property. Loan No: 494019458 ;,' ":'" ,~~ ¡J' .....~:: .,;',:'>',,-,';" ';;;::::f¡~;;:r 'j MORYêIÄGE (Continued) ~ '.~'~ r 2; 8 3 Page 6 GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND GRANTOR AGREES TO ITS TERMS. GRANTOR: / ,:; (J AL) /{ /) ;" jr~) MWW, LLC _j By: ~'~ìç;/(-----j/7l Wade Grant Sr., Manager .~f 7W' LLC -/~!¿ ¡j j /1 1_-ciL- By: ~í I .. I .l;, f/ ,.._, ,... /!:,~ Mitchefl Robertson, Member of MWW, LLC LIMITED LIABILITY COMPANY ACKNOWLEDGMENT ~...~~ STATE OF \ 11 ~ - ,^~ TERESA GOSINSI\/. NOTAF1Y PUBùêl ~-W, 1J1IAA-!~ ~-~--- -,----~- Coul1ty of "j' t f 0aeo /\ ) SS ìdon \^\ 11,'111110 COUNTY OF _~__JkIiL_______________________ M¡t Clt(IliIJiSSIOlì ~jl;:?/,~ulj7 j ............."Ii¡,.~~"V...............~~_...".~ On this _~~___ day of _tk.\ ItV'Ll\] Li..--- __' 20 D_~_, before me, the underslgl¡~d Notary f"ubllc, persollally appeared Wade Grant Sr., Manager of MWW, Ltc, and known to me to be a member or designated agent of the limited liability company that executed the Mortgage and acknowledged the Mortgage to be the free and voluntary act and deed of the limited liability company, by authority of statute, its articles of organization or its operating agreement, for the uses and purposes therein mentioned, and on oath stated that he or she is authoriz 6 to execute t is Mortgage and in fact executed the Mortgage on behalf of the limiteclliability company. Ji~ d6;(lV\ ~/ t'¿, 01 Re~icling at By Notary Public in and for the State of \Á)iL^!\~¡ A'1 My cOlllmission expires LIMITED LIABILITY COIVIPANY ACKNOWLEDGIVIENT r~''''';",·~o:...··''o:.···'--''''''''·~, ·..\.o......'../·";¡,...--<c,¡,........r~/"'<-...~ -4ór-<ò. L"', , -,fE.CI1E,0"A G(j'S N,Si':,..~"-,,,.NOTP"RY, ;lffiL~GJ' .' County of ~0'ß'''' C't,·te of f.'¡Î~T. u d T8:0n~~~~Jj Wyoming ~1ì1¡ss¡on Expires 9/22/2007 AI ~~~-,.,., ({}I '-, - -~........... .' On this ,_~~)~___ day of -~kNQm\2e ( , 20 ~,' before me, the undersigrled ~Jotary Public, personally appeared Wade Grant Jr., Member of MWW, LLC, and known to me to be a member or designated afjent of the limitec liability ClllnparlY that executed the Mortgage and acknowledged the Mortgage to be the free and voluntary act and deed of the limited li3bility company, by authority of statute, its articles of organization or its operating agreement, for the uses and purposes therein mentioned, and on oath stated that he or sile is authorizedX execute th? ~ortgage ~nd in fact executed the Mortgage on b~h.alf of the limited liab.ility company. By . \ MH\ li{T)'v\"'\(A , "",doog" Jfi(~;.w; Notary Public in and for the State Of~WÆ(Vl~ My cO[llmission eXPires_f2LL1.Ul 1 ST ~ TE OF _~~~~_~____________~_ CO~NTY OF -.iÜlNL----------~--------- ) ) SS ) LIMITED LIABILITY COMPANY ACKNOWLEDGIVIENT í<-, ~". ",:; ~,'-;Š.,: A'G'-ÓŠ'ìl~~~,"". ,~",-"" ~OO;(';l; BLlG County of e;í:'~ State ,of Teton '(j}jJt/ß Wyoming . My Commission Expires 9/22/2007 ~~-""'v."",A¡".....-~~~., On this _12:llÅ___ day of ~)f^ 1 VìlÙJLL ' 20 ~_, before me, tile undersigned Notary Public, persDnally appeared Mitchell Robertson, Member of MWW,'Li.:'é:.~and known to me to be a member or desigllated afjellt of the li/niteeJ liability company that executed the Mortgage and acknowledged the Mortgage to be the free and volulltary act and deed of the limited liability CDmpany. bV authority of statute, it,slrticles of organization or its operating agreement, for the uses ami purposes therein nlelltiulled, and 011 oatil stated that Iw ell she IS authorlzerlo execute tills 10[tgage and In fact executed the Mortgage on behalf of the Illnlted liability cUlIrpany. By ~ ) i Re,;iding at---tTad ~(IV\ Notary Public in and for the State of~/VlA~( V\1 My commission expires 0(-7.1' D1 STATE OF --W-~rmú--Q1-------------- COUNTY OF -iQ,.1ML-____________________ ) ) SS LASER PRO lc"c/;u,). Vcr. 5~D,OO_OO2 C¡¡P', H"tI",,,¡ F',.~n.;j,'¡ Sul<J¡¡"ns. Inc_ 1CiS] :--O'J!i .:...:: ;'¡jJ"(" Ac~""vcd . WY,I[. é1',CrJlI\'ERT.,CII',cl'l',GÜJrc Hi JS4] J-'H Hi'C