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HomeMy WebLinkAbout928705 RECORDATION REQUESTED BY: First Interstate Bsnk Jackson Main Branch B42 West Broadway P. O. Box 11096 Jackson, WY 83002·1096 ~ 000559 WHEN RECORDED MAil TO: First Interstate Bank Jeckson Mein Branch 842 West Broedwey P. O. Box 11096 Jackson. WY 83002·1095 RECEIVED 4/24/2007 at 11 :07 AM RECEIVING # 928705 BOOK: 655 PAGE: 559 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY OFi1stInletsfafeBark CONSTRUCTION MORTGAGE MAXIMUM LIEN. The lien of this Mortgage shall not exceed at anyone time $6,500,000.00. THIS MORTGAGE dated April 17, 2007, is made and executed between Alpine Junction llC, a Wyoming Limited Liability Company, whose address is 330 North Glenwood. Jackson, WY 83001 (referred to below as "Grantor") and First Interstate Bank, whose address is 842 West Broadway, P. O. Box 11095. Jackson, WY 83002-1095 (referred to below as "lender"). GRANT OF MORTGAGE. For valuable consideration. Grantor mortgeges 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. watercourses and ditch rights (including stock in utilities with ditch or irrigation rights); and all other riQhts. royalties, and profits relatin9 to the real property. includinQ without limitation all minerals. oil, gas. geothermal and similar matters. (the "Real Property") located In Lincoln County, State of Wyoming: See Exhibit "A", which is attached to this Mortgage and made a part of this Mortgage as if fully set forth herein. The Real Property or its address is commonly known as Alpine Meadows Subdivision. Alpine. WY 83128. 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 ~rom the Property. In addition. Grantor grants to Lender a Uniform Commercial Code security interest in the Personal Property and Rents. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY. IS GIVEN TO SECURE IAI PAYMENT OF THE INDEBTEDNESS AND IB) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THE NOTE, THE RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY 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. Grantor shall pay to Lender all amounts secured bV this Mortgaga as they become due and shall strictly perform all of Grantor's obligations under this Mortgage, CONSTRUCTION MORTGAGE. This Mortgage is a "construction mortgage" for tha purposes of Sections 9·334 and 2A-309 of the Uniform Commercial Code, as those sections have been adopted by the State of Wyoming. 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 occurrance of an Event of Default. Grantor may (1) remain in possession and control of the Property; (2) use, operate or manage tha Property; and 13) collect the Rents from the Property. Outy to Maintain. Grantor shall maintain the Property in tanantabla condition and promptly perform all repairs. raplacemants, 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 bv any person on. under, about or from the Property; (2) Grantor has no knowledge of, or reason to balieve that there has been. except as previously disclosed to and acknowledged by Lender in writing. la) any breach or violation of any Environmental Laws, (bJ 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 tha Property. or Ic) 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, la) 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 Substanca on. under, about or from the Property; and Ib) any such activity shall be conducted in compliance with all applicable federal, state. and local laws, regulations and ordinances, including without limitation all Environmental Laws. Grantor authorizes Lender and its agents to enter upon the Property to make such inspections and tests, at Grantor's expense, as Lender may deem appropriata 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 11) 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 12) agraes to indemnify. defend. 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 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 hava been known to Grantor. The provisions of this section of the Mortgage, including the obligation to indemnify and defend. shall survive the payment of the Indebtednass 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, Weste. Grantor shall not cause, conduct or permit any nuisance nor commit. permit, or suffer any stripping of or waste on or to tha Property or any portion of the Property. Without limiting the generalitv of the foregoing. Grantor will not remova. 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, Lander 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 Raal Property at all reasonable times to attend to Lender's interests and to inspact the Raal Property for purposes of Grantor's compliance with the terms and conditions of this Mortgage, JS2870S Me-nor,.. ^ '3E (C, d) 000560 Compliance with Governmentel Requirements, Grantor shall promptly comply with all laws. ordinances. and regulations, now or hereafter in ellect, 01 all governmental authorities applicable to the use or occupancy 01 the Property. including without limitation. the Americans With Disabilities Act. Grantor may contest in good laith 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 satislactory 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, CONSTRUCTION lOAN. "some or all 01 the proceeds 01 the loan creating the Indebtedness are to be used to construct or complete construction 01 any Improvements on the Property, the Improvements shall be completed no later than the maturity date 01 the Note lor such earlier date as lender may reasonably establish) and Grantor shall pay in lull all costs and expenses in connection with the work. lender will disburse loan proceeds under such terms and conditions as lender may deem reasonably necessary to insure that the interest created by this Mortgage shall have priority over all possible liens, including those 01 material suppliers and workmen, lender may require, among other things. that disbursement requests be supported by receipted bills. expense affidavits, waivers of liens, construction progress reports, and such other documentation as Lender may reasonably request. DUE ON SALE - CONSENT BY LENDER. lender may. at lender's option, declare immediately due end payable all sums secured by this Mortgage upon the ssle or transler, without lender's prior written consent, 01 all or any part 01 the Real Property, or any interest in the Real Property, A ·sale or trensler· means the conveyance 01 Real Property or any right, title or interest in the Real Property; whether legal. benelicial or equitable; whether voluntary or involuntary;· whether bV outright sale, deed. installment sale contract. land contract, contract lor deed, leasehold interest with a term greater than three (3) years. lease-option contract. or by sale. assignment. or transler 01 any benelicial interest in or to any land trust holding title to the Real Property, or by any other method 01 conveyance 01 an interest in the Real Property. If any Grantor is a corporation, partnership or limited liability company, transfer also includes any change in ownership of more than twenty-five percent (26 %) of the voting stock, partnership interests or limited liability company interests, as the case may be. 01 such Grantor, However, this option shall not be exercised by lender il such exercise is prohibited by lederallaw or by Wyoming law. TAXES AND liENS. The lollowing provisions relating to the taxes and liens on the Property are part 01 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 01 the Property, and shall pay when due all claims lor work done on or lor 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 01 lender under this Mortgage. except lor those liens specilically agreed to in writing by lender. and except lor the lien 01 taxes and assessments not due as lurther specilied in the Right to Contest paragraph, Right to Contest. Grantor may withhold pavment 01 any tax. assessment, or claim in connection with a good laith dispute over the obligation to pay, so long as lender's interest in the Propertv is not jeopardized, "a lien arises or is filed as a result 01 nonpayment, Grantor shall within lilteen (15) days alter the lien arises or. il a lien is liled. within lilteen (15) days alter Grantor has notice 01 the filing. secure the discharge .01 the lien, or if requested by lender, deposit with lender cash or a sufficient corporata 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 01 a loreclosure or sale under the lien, In any contest. Grantor shall delend itsell and lender and shall satislv any adverse judgment belore enlorcement against the Property. Grantor shall name lender as an additional obligee under any surety bond furnished in the contest proceedings. Evidence of Payment. Grantor shall upon demand lurnish to lender satislactory evidence 01 payment 01 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 lifteen (15) days belore any work is commenced. any services are lurnished, or any materials arB 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 and the cost exceeds $10,000.00. Grantor will upon request of lender furnish to lender advance assurances satislactory to lender that Grantor can and will pay the cost 01 such improvements. PROPERTY DAMAGE INSURANCE. The lollowing provisions relating to insuring the Property are a part 01 this Mortgage: Maintenance of Insurance. Grantor shall procure and maintain policies of fire insurance with standard extended coverage endorsements on a replacement basis lor the lull insurable value covering all Improvements on the Real Property in an amount sufficient to avoid application 01 any coinsurance clause, and with a standard mortgagee clause in favor 01 lender, Grantor shall also procure and maintain comprehensive general liability insurance in such coverage amounts as lender may request with lender being named as additional insureds in such liability insurance policies. Additionally, Grantor shall maintain such other insurance, including but not limited to hazard, business interruption and boiler insurance as Lender may require. Policies shall be written by such insurance companies and in such form 8S may be reasonably acceptable to lender. Grantor shall deliver to lender certilicates 01 coverage Irom each insurer containing a stipulation that coverage will not be cancelled or diminished without a minimum 01 ten 110) 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 lavor 01 lender will not be impaired in any way by any act. omission or delault 01 Grantor or any other person, Should the Real Property be located in an area designated by the Director 01 the Federal Emergency Management Agency as a special flood hazerd area, Grantor agrees to obtain and maintain Federal Flood Insurance, if available, within 45 days alter notice is given by lender that the Propertv is located in a special flood hazard area, lor the lull unpaid principal balance 01 the loan and any prior liens on the propertv 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 01 Proceeds. Grentor shall promptly notilv lender 01 any loss or damage to the Property il the estimated cost 01 repair or replacement exceeds $10,000,00. lender may make prool of loss il Grantor lails to do so within lifteen (15) days 01 the caeualty, 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 proceeds to the reduction 01 the Indebtedness. payment 01 any lien affecting the Property, or the restoration and repair 01 the Property, " lender elects to apply the proceeds to restoration and repair. Grantor shall repair or replace the damaged or destroyed Improvements in a manner satislactory to lender, lender shall, upon satislactory prool 01 such expenditure. payor reimburse Grantor Irom the proceeds lor the reasonable cost 01 repair or restoration if Grantor is not in delault under this Mortgage, Any proceeds which have not been disbursed within 180 deys alter their receipt and which lender has not committed to the repair or restoration 01 the Property shall be used lirst to pay any amount owing to lender under this Mortgage, then to pay accrued Interest, and the remainder, il any, shall be applied to the principal balance 01 the Indebtedness. "lender holds any proceeds alter payment in lull 01 the Indebtedness, such proceeds shall be paid to Grantor as Grantor's interests may appear. Grantor's Report on Insurance. Upon request 01 lender, however not more than once a year. Grantor shall lurnish to lender a report on each existing policy 01 insurance showing: (1) the name 01 the insurer; (2) the risks insured; (3) the amount 01 the policy; (4) the property insured, the then current replacement value 01 such property. and the manner 01 determining that value; and (5) the expiration date 01 the policy. Grantor shall. upon request 01 lender, have an independent appraiser sat is lac tory to lender determine the cash value replacement cost 01 the Property, lENDER'S EXPENDITURES. II any action or proceeding is commenced that would materially affect lender's interest in the Property or il Grantor lails to comply with any provision 01 this Mortgage or any Rslated Documents, including but not limited to Grantor's lailure to discharge or pay when due any amounts Grantor is required to discharge or pay under this Mortgage or any Related Documents, lender on Grantor's behalf may Ibut shall not be obligated to) take any action that lender deems appropriate, including but not limited to discharging or paying all taxes, liens, security interests. encumbrances and other claims, at any time levied or placed on the Property and paying all costs lor insuring. maintaining and preserving the Property. All such expenditures incurred or paid by lender lor such purposes will then bear interest at the rate charged under the Note Irom the date incurred or paid by lender to the date 01 repayment by Grantor. All such expenses will become a part 01 the Indebtedness and. at lender's option. will (A) be payable on demand; IB) be added to the balance 01 the Note and be apportioned among and be pavable with any installment payments to become due during either (1) the term of any applicable insurance policy; or (2) the remeining term 01 the Note; or IC) be treated as a balloon payment which will be due and payable at the Note's maturity. The Mortgage also will secure payment 01 these amounts, Such right shall be in addition to all other rights and remedies to which lender may be entitled upon Delault, WARRANTY: DEFENSE OF TITLE. The lollowing provisions relating to ownership 01 the Property are a part 01 this Mortgage: Title. Grantor warrants that: (a) Grantor holds good and marketable title 01 record to the Property in lee simple. Iree and clear 01 all liens U~~~f IUS ,-"'......"''''''-, I utf""..... and encumbrances other than those set forth in the Real Property description or in any title insurance policy, title report, or final title opinion issued in lavor 01. and accepted by, Lander in connection with this Mortgage. and Ib) Grantor has the lull right. power, and authority to axecute and deliver this Mortgage to Lender, Defense of Title. Subject to the exception in the paragraph above. Grantor warrants and will forever defend the title to the Property against the lawful claims of all persons. In the event any action or proceeding is commenced that questions Grantor's title or the interest of Lender under this Mortgage, Grantor shall defend the action at Grantor's expense. Grantor may be the nominal party in such proceeding, but Lendar shall be antitled to participate in the proceeding and to be represanted in the proceeding by counsel 01 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. Complianca With Laws. Grantor warrants that the Property and Grantor's use 01 the Property complies with all axisting applicable laws. ordinances, and regulations of governmental authorities. Survival 01 Representations and Warranties. All representations, warrantias, and agreements made by Grantor in thia Mortgage shall survive the execution and dalivery of this Mortgaga. shall be continuing in nature. and shall remain in fulllorce and effect until such time as Grantor's Indebtedness shall be paid in full, CONDEMNATION. The lollowing provisions relating to condemnation proceedings are a part 01 this Mortgage: Proceedings, If any proceading in condemnation is filed, Grantor shall promptly notily Lender in writing, and Grantor shall promptly taka such steps as may be necassary to dalend tha action and obtain the award. Grantor may be the nominal party in such proceeding. but Lender shall be entitlad to participate in the proceading and to ba rapresanted in the proceadlng by counsel of its own choice, and Grantor will delivar or cause to be delivered to Lendar such instruments and documentation as may ba raquested by Landar Irom time to time to permit such participation. Appllcetlon of Net Proceeds. If all or any part of the Property is condemnad 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 01 the award ba applied to the Indebtedness or the repair or restoration 01 tha Property, The net proceeds 01 the award shall mean tha award alter payment of all reasonabla costs, expenses, and attorneys' fees incurred by Lender In connection with the condamnation. IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. Tha lollowing provisions relating to governmental taxes, laes and charges are a part 01 this Mortgaga: eurrent Taxes, Fees end Charges. Upon request by Lender. Grantor shall executa such documents in addition to this Mortgage and take whatever other action is requested by Lender to perlect and continue Lendar's lien on the Real Property, Grantor shall reimburse Lender lor all taxas. as describad below, together with all expenses incurred in racording, perfecting or continuing this Mortgage. including without limitation all taxes, fees. documentary stamps, and other charges lor recording or registering this Mortgage, Taxes. Tha lollowing shall constituta taxes to which this section applies: 11 a specilic tax upon this type of Mortgage or upon all or any part 01 the Indebtedness secured by this Mortgage; 12) a specific tax on Grantor which Grantor is authorized or required to deduct Irom payments on tha Indebtadness secured by this type 01 Mortgage; (3) a tax on this type of Mortgage chargeable against the Lender or the holder 01 the Note: and (4) a specilic tax on all or any portion of the Indebtedness or on payments 01 principal and intareat made by Grantor. Subsequent Texes. II any tax to which this section applies is enacted subsequent to the date 01 this Mortgage. this evant shall have the same effect 88 an Event of Default. and lender may exercÎse 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 suraty bond or other security satislactory to Lender, SECURITY AGREEMENT: FINANCING STATEMENTS. The lollowing provisions relating to this Mortgage as a security agreament are a part of this Mortgaga: Security Agreement. This instrument shall constitute a Security Agreement to the extent any 01 the Property constitutes fixtures. and Lander shall have all 01 the rights 01 a se~ured party under tha Uniform Commercial Code as amended Irom time to tima. Security Interest. Upon raquest by Lender, Grantor shall take whatever action is requested by Lender to perlect and continue Lender's security interest in the Rents and Personal Property. In addition to recording this Mortgage in the real property records, Lender may, 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 lor all expenses incurred in perfecting or continuing this security interest. Upon delault, Grantor shall not remove, sever or detach the Personal Property Irom the Property, Upon delault. Grantor shall assemble any Personal Property not affixed to the Property in 8 manner and at a place reasonably convenient to Grantor and lender and make it available to lender within three (3) days after racelpt 01 written demand from Lender to the extent permitted by applicable law, Addresse.. The mailing addresses of Grantor (debtor) and Lender (secured partv) Irom which information concerning the security interest granted by this Mortgage may be obtained (each as requirad by the Uniform Commercial Coda) are as stated on the first page 01 this Mortgage. FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating to further assurances and attorney-in·lact are a part 01 this Mortgaga: Furthar Assurances. At any tima. and Irom time to time, upon request 01 Lender. Grantor will make. executa and deliver. or will cause to be made, executed or delivared. to Lendar or to Lender's designee. and when requested by Lender. cause to be Iiled, racorded, refiled. or rerecorded, as the case may be, at such times and in such offices and places as Lender may deem appropriate, any and all such mortgages, deeds of trust. security deeds. security agreements, financing statements, continuation statements, instruments of further assurance. certificates, and other documents as may, in the sole opinion of Lender, be necessary or desirable in order to effectuate, complete, perfect, continue. or preserve (1) Grantor's obligations under the Note. this Mortgaga, and the Related Documants, and (2) the lians and security interests created by this Mortgage as first and prior liens on the Property. whether now owned or hereafter acquired by Grantor. Unlass prohibited by law or Lender agrees to the contrary in writing, Grantor shall raimburse Lender lor all costs and expenses incurred in connection with the matters referred to in this paragraph. Attorney-in-Fect. "Grantor lails to do any 01 the things relarred to in the preceding paragraph, Lender may do so for and in the nama 01 Grantor and at Grantor's expense. For such purposes, Grantor hereby irrevocably appoints Lender as Grantor's attorney-In-fact for the purpose of making, executing. delivaring, filing. recording, and doing all other things as mav be necessary or desirable, in Lender's sole opinion, to accomplish the matters referred to in the preceding paragraph. FULL PERFORMANCE. II Grantor paya all the Indebtedness when due, and otherwise performs all the obligations imposed upon Grantor under this Mortgage. Lender shall axecute and deliver to Grantor a suitable satislaction 01 this Mortgage and suitable statements 01 termination 01 any linancing statement on lila evidencing Lendar's security interest in tha Rents and the Personal Property. Grantor will pay. il permitted by applicable law, any reasonable termination lee as determined by Lender from time to time. EVENTS OF DEFAULT. Each 01 tha following. at Lander's option. shall constitute an Event of Delault under this Mortgage: Payment Delault. Grantor fails to make any payment when due under the Indebtedness. Default on Other Payments. Failure 01 Grantor within the time required by this Mortgage to make any payment lor 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. covenant or condition contained in this Mortgage or in any of the Related Documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Grantor, Defeult In Favor of Third Parties. Should Grantor delault under any loan. extension 01 credit. securitv agreement. purchase or sales agreement, or any other agreament. in favor 01 any other creditor or person that may materially allect any 01 Grantor's proparty or Grantor's ability to repay the Indebtedness or Grantor's ability to perform Grantor's obligations under this Mortgage or any related document. False Statements. Any warranty. representation or statement made or lurnished to Lender by Grantor or on Grantor's behall under this Mortgaga or the Related Documents is lalse or misleading in any material respect. either now or at the time made or lurnishad or becomes lalse or misleading at any time therealter, o i'05 M("DT~ ^ GE (C d) 000562 Defective Colleterelizetion. This Mortgage or any of the Related Documents ceases to be in full force and effect ¡including failure of any collateral document to create a valid and perfected security interest or lien) at any time and for any reason. Death or Insolvency. The dissolution of Grantor's regardless of whether election to continue is made), any member withdraws from the limited liability company. or any other termination of Grantor's existence as a going business or the death of any member, the insolvency of Grantor, the appointment of a receiver for any part of Grantor's property. any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Grantor. Creditor or Forfeiture Proceedings, Commencement of foreclosure or forfeiture proceedings. whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Grantor or by any governmental agency against any property securing the Indebtedness, This includes a garnishment of any of Grantor's accounts. including deposit accounts. with lender. However. this Event of Default shall not applv if there is a good faith dispute by Grantor as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Grantor gives lender written notice of the creditor or forfeiture proceeding and deposits with lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by lender, in its sole discretion, as being an adequate reserve or bond for the dispute, Breach of Other Agreement. Anv breach bv Grentor under the terms of anv other agreement between Grantor and lender that is not remedied within any grace period provided therein, including without limitation any agreement concerning any indebtedness or other obligation of Grantor to lender. whether existing now or later. Eventa Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the Indebtedness or eny Guerantor dies or becomes incompetent. or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness, Adverse Change, A material adverse change occurs in Grantor's financial condition, or lender believes the prospect of payment or performancr of the Indebtedness is impaired, Insecurity. ¡lender in good faith believes itself insecure. RIGHTS AND RE¡MEDIES ON DEFAULT. Upon the occurrence of an Event of Default and at anv time thereafter, lender, at lender's option. may exercise anyone or more of the following rights and remedies, in addition to any other rights or remedies 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 pa~eble. including any prepayment penalty which Grentor would be required to pay. UCC Remedies. With respect to all or any part of the Personal Property, lender shall have all the rights and remedies of a secured party under the Uniform Commercial Code, Collect Rents. lender shall have the right. without notice to Grantor, to take possession of the Property, including during the pendency of foreclosure, whether judicial or non-judicial, and collect the Rents, including amounts past due and unpaid, and apply the net proceeds, over and above lender's costs, against the Indebtedness. In furtherance of this right, lender may require any tenant or other user of the Property to make payments of rent or use fees directly to lender. If the Rents are collected by lender. then Grantor irrevocably designates lender as Grantor's attorney-in-fact to endorse instruments received in payment thereof in the name of Grantor and to negotiate the same and collect the proceeds, Peyments by tenants or other users to lender in response to lender's demand shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the demand existed. Lender may exercise its rights under this subparagraph either in person, by agent. or through a receiver, Appoint Receiver. lender shall have the right to have a receiver appointed to take possession of all or any part of the Property. with the power to protect and preserve the Property. to operate the Property preceding foreclosure or sale. and to collect the Rents from the Property and apply the proceeds. over and above the cost of the receivership, against the Indebtedness. The receiver may serve without bond if permitted by law. lender's right to the appointment of a receiver shall exist whether or not the apparent value of the Property exceeds the Indebtedness by a substantial amount. Employment by lender shall not disqualify a person from serving as a receiver. Judicial Foreclosure. Lender may obtain a judicial decree foreclosing Grantor's interest in all or any part of the Property. Nonjudiciel Sele. 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 statute. Deficiency Judgment. If permitted by applicable law, lender may obtain a judgment for any deficiency remaining in the Indebtedness due to Lender after appHcation of all amounts received from the exercise of the rights provided in this section. Tenency at Sufference. 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 Grantor. Grantor shall become a tenent at sufferance of lender or the purchaser of the Property and shall, at lender's option. either (1) pay a reasonable rental for the use of the Property. or (2) vacate the Property immediately upon the demand of lender, Other Remedies. lender shall have all other rights and remedies provided in this Mortgage or the Note or available at law or in equity. Sele of the Property. To the extent permitted by applicable law, Grantor hereby waives any and all right to have the Property mershalled, In exercising its rights and remedies, lender shell be frae to sell all or any part of the Property together or separately, in one sele 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 shall 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 sale of the 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 make expenditures or to take action to perform an obligation of Grantor under this Mortgage, after Grantor's failure to perform. shall not affect lender's right to declare a default and exercise its remedies, Nothing under this Mortgage or otherwise shall be construed so as to limit or restrict the rights and remedies available to lender following en Event of Default, or in any way to limit or restrict the rights and ability of lender to proceed directly against Grantor andlor against any other co-maker. guarantor. surety or endorser andlor to proceed against any other çollateral directly or indirectly securing the Indebtedness. 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 Note rate from the date of the expenditure until repaid, Expenses covered by this paragraph include. without limitation, however subject to any limits under applicable law, lender's reasonable attorneys' fees and lender's legal expenses whether or not there is a lawsuit. including reasonable attorneys' fees and expenses for bankruptcy proceedings (including efforts to modifv or vacate any automatic stay or injunction), appeals. and any anticipated post-judgment collection services, the cost of seerching 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 without 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 e 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 party may change its address for notices under this Mortgage by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, Grantor agrees to keep lender informed at all times of Grantor's current address. Unless otherwise provided or required by law, if there is more than one Grantor, any notice given by Lender to any Grantor 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 entire understanding and agreement of the parties as to the matters set forth in this Mortgage. No alteration of or amendment to this Mortgage shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment, -----., - "''-6 ,,",V""''''UiGU, -.....--uu ra\fu '" Annual Reports. If the Property is used for purposes other than Grantor's residence, Grantor shall furnish to lender. upon request, a certified statement of net operating income received from the Property during Grantor's previous fiscal year in such form and detail as lender shall require. "Net operating income" shall mean all cash receipts from the Property less all cash expenditures made in connection with the operation of the Property, Caption Headings. Caption headings in this Mortgage are for convenience purposes only and are not to be used to interpret or define the provisions of this Mortgage, Governing law. This Mortgage will be governed by federal law epplicable to lender end. to the extent not preempted by federellaw, the laws of tha State of Wyoming without regard to its conflicts of law provisions. This Mortgage has been accepted by lender In the State of Wyoming. No Waiver by lendar. lender shall not be deemed to have waived anv rights under this Mortgage unless such waiver is given in 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 provision of this Mortgage shall not prejudice or constitute a waiver of lender's right otherwise to demand strict compliance with that provision or any other provision of this Mortgage, No prior waiver by lender. nor any course 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 any future transactÎons. Whenever the consent of lender is required under this Mortgage, the granting of such consent by lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of lender, Severability. If a court of competent jurisdiction finds any provision of this Mortgage to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceeble. If the offending provision cannot be so modified, it shall be considered deleted from this Mortgage, Unless otherwise required by law, the illegality. invalidity. or unenforceability of any provision of this Mortgage shall not affect the legality. validity or enforceability of any other provision of 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 Propertv at eny 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 in this Mortgage on transfer of Grantor's interest, this Mortgage shall be binding upon and inure to the benefit of the parties, their successors and assigns. If ownership of the 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 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, Weiver 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 capitalized words and terms shall have the following meanings when used In this Mortgage. Unless specifically atated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words end 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 Commercial Code: Borrower. The word "Borrower" means Alpine Junction llC and includes all co-signers and co-makers signing the Note and all their successors 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. I"CERClA"). the Superfund Amendments and Reauthorization Act of 1986, Pub, L. No. 99-499 ("SARA "I. 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. Grantor. The word "Grantor" means Alpine Junction lLC, GUBrantor. The word "Guarantor" means any guarantor, surety, or accommodation party of any or all of the Indebtedness. Guaranty. The word "Guaranty" means the guaranty from Guarantor to lender, including without limitation a guaranty 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 human health or the environment when improperly used, treated. stored. disposed of, generated, manufactured. transported or otherwise handled. The words "Hazerdous 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 thereof 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 Raal Property, Indebtedness. The word "Indebtedness" means all principal, interest. and other amounts. costs and expenses payable under the Note or Related Documents, together with all renewals of, extensions of, modifications of, consolidations of and substitutions for the Note or Related Documents and any amounts expended or advanced bV 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 First Interstate Bank, its successors and assigns. Mortgage. The word "Mortgage" means this Mortgage between Grantor and lender, Note, The word "Note" means the promissory note dated April 17. 2007. in the original principal amount of $6.500.000.00 from Grantor to lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the promissorv note or agreement, The maturity date of this Mortgage is April 16. 2009. NOTICE TO GRANTOR: THE NOTE CONTAINS A VARIABLE INTEREST RATE. Personel 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 the Property, Property. The word "Property" means collectively the Real Property and the Personal Property, Real Proparty. 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, O~2~ MC'DT.... ^ SE ICI d) 000564 GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE. AND GRANTOR AGREES TO ITS TERMS. GRANTOR: ALPINE JUNCTION LLC LIMITED LIABILITY COMPANY ACKNOWLEDGMENT STATE OF Jt.;WI1fII1? PHYLLIS B FISCHER - NOTARY PUBLIC ) ss COUNTY OF . STATE OF ::::" ., r:r:.. " /:ÍÚ- ' . ,. . ::?:::',::""::~:OO '::~::,:r::..".". appeared Michael T. Halpin, Vice Presidentrof Meridian Group Inc. and known to me to be a member or designated agent of the limited liability company that e the Mortgage and acknowledged the Mortgage to be the free and voluntary act and deed of the limited liability company, by auth ' 0 statute. s articles organization or its operating agreement, for the uses and purposes therein mentioned. and on oath stated tha or e is a d to ec e this Mortgage and in fact executed the Mortgage on behalf of the limited liability company, Ý ~ Residing at 7è tð V C!.dirJ t, If¡_ My commission expires (}2- ~ d I!. 20~ ~Alt.. '''0 len""',. v... 5_::M.OO.OO3 C.p.. H..¡..... Fin...~1a4 10111_., Inc. 1117, 2OOJ. ". Aia"I' ""..,...... . WT 1I;:\CFHI.I'LlOO~.fC '/11'11135 PR.U EXHIBIT "A" VVU'I'O-=» º~28705 PARCEL 1: Lots 2 -7,12,13, 15 -18,22,23,25,3],35 -38,40,42,53,56,62 - 65,68,75, 81,86,96 -98, 111, 119 -120, 125 -128, 130, L33, 137, 140, 147, 148, 155, 156, 158, 162', 164,178 -186, ALPINE MEADOWS SUBDlVISJON as shown by the official plat there offiled on August 23,2005 in the Office of the Clerk, Lincoln County, Wyoroing, as Plat No. 206-A. PARCEL '2:(72, ALPINE MEADOWS SUBDIVISION as shown by the official plat there of filed on August 23,2005 in the Office of the Clerk, l.ineoln County, Wyoming, as Plat No- 206· A.j