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HomeMy WebLinkAbout931066 (() otk) lj J I I . 'j ~) i U \ 1/'\/ 1 !\ V RECORDATION REQUESTED BY: First Bank of Idaho, fsb, dba First Bank of tha Tatons Jackson omce 185 Powdamom lane PO Box 12860 Jackson, WY 83002 00$)848 RECEIVED 7/9/2007 at 4:14 PM RECEIVING # 931066 ¢' BOOK: 664 PAGE: <ftto JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY WHEN RECORDED MAIL TO: First Bank of Idaho, fsb, dba First Bank of the Tetons Jackson omce 185 Powdemom lane PO Box 12860 Jackson, WY 83002 SEND TAX NOTICES TO: Firat Bank of Idaho, fab, dba First Bank of tha Tatona Jackson OffIce 185 Powdarhom lana PO Box 12860 Jackson. WY 83002 SPACE ABOVE THIS liNE 15 FOR RECORDER'S USE ONLY MORTGAGE THIS MORTGAGE dated June 29, 2007, Is made and executed between Charles C. Burnham (referred to below as "Grantor") and First Bank of Idaho, fsb, dba First Bank of the Tetons, whose address Is 185 Powderhorn Lane, PO Box 12860, Jackson, WY 83002 (referred to below as "Lender"), GRANT OF MORTGAGE. For valuabla consldaratlon, Grantor mortgagea and conveya to lander all of Grantor's right, tltle, and Interest In and to the following described real property, togather 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 olher rights, royaltias, and proms relating to the real property, Includlnll without limitation all minerals, oil, gas, geothermal and similar maUers, (the "Real Property") located In Lincoln County, State of Wyoming: THE SOUTHWEST QUARTER OF SECTION 22, TOWNSHIP 33 NORTH, RANGE 119 WEST OF THE 6TH P.M., LINCOLN COUNTY, WYOMING. ALSO THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER AND THE SOUTH HALF OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER AND LOT ONE(1) AND LOT TWO (2) OF SECTION 21, TOWNSHIP 33 NORTH, RANGE 119 WEST OF THE 6TH P,M, LINCOLN COUNTY, WYOMING. TOGETHER WITH THE RIGHT OF INGRESS, EGRESS AND UTILITIES ACROSS THE FOLLOWING DESCRIBED LAND: THE SOUTH SIXTY (60) FEET OF THE SOUTHEAST QUARTER OF SECTION 22, TOWNSHIP 33 NORTH, RANGE 119 WEST OF THE 6TH P.M., LINCOLN COUNTY, WYOMING, TOGETHER WITH THE RIGHTS OF INGRESS AND EGRESS AND ALL UNDERGROUND UTILITIES CONTAINED IN EASEMENT RECORDED AUGUST 12, 2003 IN BOOK 520PR ON PAGE 391 OF THE RECORDS OF THE LINCOLN COUNTY CLERK. The Real Property or Its address Is commonly known as T33N R119W 6TH P.M. , Lincoln County, WY 83111. The Real Property tax Identification number Is 12-3319-21-1-00-042.00. Grantor presently assigns to lender all of Grantor's right, tille, and Intereslln and to all present and future leases of the Property and all Renls from the Property. In addition, Grantor grants to lender a Uniform Commercial Code security Interest In the Personal Property and Rents. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT OF THE INDEBTEDNESS AND (B) PERFORMANCE OF ANY AND All OBLIGATIONS UNDER THE NOTE, THE RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE 15 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 by this Mortgage as they become due and shall strictly peñorm all of Grantor's obligations under this Mortgage. POSSESSION AND MAINTENANCE OF THE PROPERTY. Grantor agrees that Grentor's possession and use of the Property shall be governed by the following provisions: Pone..lon and Uae. Until the occurrence of an Event of Default, Grantor may (1) remain In possession and control of the Property; (2) use, operate or manage the Property; and (3) collect the Rents from the Property. Duty to Maintain. Grantor shall maintain the Property in good condition and promptly peñorm all repairs, replacemenls, and maintenance necessary to preserve Its value. Compliance With Environmental lawa. Grantor represents and warrants 10 lander that: (1) During the period of Grantor's ownership of tha Property, there has been no use, generallon, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance by any person on, under, about or from the Property; (2) Grantor has no knowledge of, or reason to believe that there has been, except as previously disclosed to and acknowledged by lender In writing, (a) any breach or violation of any Environmental. laws. (b) any use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the Property by any prior owners or occupants of tha Property, or (c) any actual or threatened litigation or claims of any kind by any person relating to such matters; and (3) Except as previously disclosed to and acknowledged by lender In writing, (a) neither Grantor nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture. store, treat, dispose of or ralease any Hazardous Substance on. under, about or from the Property; and (b) any such activity shall be conducted In compliance wllh all applicable federal. state, and local laws, reguletions 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 appropriate to determine compliance of the Property with this section of the Mortgage. Any Inspections or tests mede by lender shall be for lende~s purposes only and shall not ba construed to create any responsibility or liability on tha 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 Hazerdous Substances. Grantor hereby (1) raleases and waives any future claims against lendar for Indemnity or contribution In the event Grantor becomes liable for cleanup or other costs under any such laws; and (2) agrees to Indemnify, defend, and hold harmless lender against any and all clalms, losses. liabilities, damages, penalties, and expenses which lender may dlrectiy or Indlrectiy sustain or suffer resulting from a braach of this section of the Mortgage or as e consequence of any use, generatlon, manufacture, storage. disposal, release or threatened ralease occurring prior to Grantor's ownership or interest In the Property, whether or not the same was or should have been known to Granlor. The provisions of this section of the Mortgage, Including the obligation to Indemnify and defend, shall survive the payment of the Indebtedness and the satisfaction and reconveyance of the lien of this Mortgage and shall not be affected by lender's acquisition of any Interest In the Property, whether by foreclosura or otherwise. Nuisance, Waste. Grantor shall not cause, conduct or permit any nuisance nor commll, permll, or suffer eny stripping of or waste on or to the Property or any portion of the Property. Without limiting the generality of Ihe foregoing, Grentor will nol remove, or grent to any other party the right to remove, any timber, minerals (Including 011 and gas), coal, clay, scoria, soli, gravel or rock products without lender's prior written consent. Removal of Improvements. Grantor shall not demolish or remove any Improvements from the Real Property without lender's prior written consent. As a condition to the removal of any Improvements, lender may raqulre Grantor to make arrangements satisfactory to lender to raplace such Improvements with Improvements of at least equal value. lender's Right to Enter. lender and lende~s agents and representatives may enter upon the Real Property at all reasonable times to attend Loan No: 494025638 MORTGAGE (Continued) 000849 Page 2 to lender's Interesls and to Inspecllhe Real Property for purposes of Grantor's compliance with the terms and conditions of this Mortgage. Complllncl with Governmlntal Requirements. Granlor shall promplly comply with all lawa, ordinances, and regulations, now or hereafter in effect, of all govemmental authorities applicable to Ihe use or occupancy of the Property. Grantor may contest In good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, Including approprlata 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 inlerests In the Property are not jeopardized. lender may require Grantor to post adequate security or a surety bond, reasonably satisfactory 10 lender, to protect lender's Interest. Duty to Protect. Granlor agrees neither to abandon or leave unattended the Property. Grantor shall do all other acts, In addlllon 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 Ihe Proparty. DUE ON SALE· CONSENT BY lENDER. lender may, at lender's option, declara Immediately due and payable all sums secured by this Mortgage upon the sale or transfer, without lender's prior wrlllen consent, of all or any part of the Real Property, or any Interest in the Real Property. A 'sale or transfer" means the conveyance of Real Property or any right, title or Interest In the Real Property; whether legal, beneficial or equitable; whether voluntary or Involuntary; whether by outright sale, deed, installment sala contract, land contract, contract for daed, leasehold interest with a term greater than three (3) years, lease-option contract, or by sale, assignment. or transfer of any beneficial Interest In or to any land trust holding title to the Real Property, or by any other method of conveyance of an interest in the Real Property. However, this option shall not be exercised by lender if such exercise is prohibited by federal law or by Wyoming law. TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property are part of this Mortgage: Payment. Grantor shall pay when due (and In all events prior to delinquency) all taxes, payroll taxes, special taxes, assessments, water charges and sewer service charges levied against or on account of the Property, and shall pay when due all claims for work done on or for services rendered or material furnished to the Property. Grantor shall maintain the Property free of any liens having priority over or equal to the Interest of lender under this Mortgage, except for those liens specifically agreed to In writing by Lender, and except for the lien of taxes and assessments not due as further specified In the Right to Contest paragraph. Right to Contest. Grantor may withhold payment of any tax. assessment. or claim In connection with a good faith dispute over the obligation to pay, so long as lender's Interest in the Property Is nol jeopardized. If a lien arises or Is filed as a result of nonpayment, Grantor shall within fifteen (15) days after the lien arises or, If a lien Is filed, within fifteen (15) days after Grantor has notice of the filing, sacure the discharge of the lien I or If requested by lender, deposit with lender cash or a sufficient corporate surety bond or other security satisfactory to lender In an amount sufficient to discharge the lien plus any cosls and reasonable allomeys' fees, or other cherges that could accrua as a rasult of a foreclosure or sala undar the lien. In any contest, Grantor shall defand Itself and Lender and shall satisfy any adversa judgmant bafore enforcament against the Property. Grantor shall name lender as an additional obligaa undar any suraty bond fumlshad In tha contest proceedings. Evidence of Plymlnt. Grantor shall upon damand furnish to lender satisfactory avldence of payment of the taxes or assessments and shall authoriza the appropriate govammental official to deliver to lender al any tlma a written statement of the taxes and assassments against the Property. Notice of Conltructlon, Grentor shall notify landar at least fifteen (15) days before any work Is commenced I any services are furnished, or any materials are supplied to the Property, If any mechanic's lien, materialmen's lien, or other lien could be asserted on account of the work, services, or materials. Grantor will upon request of lender furnish to lender advance assurances satisfactory to lander that Grantor can and will pay the cost of such improvements. PROPERTY DAMAGE INSURANCE. The following provisions relating to Insuring the Property are a part of this Mortgage: Maintenance of Insurance. Grantor shall procura and maintain policies of fire Insurance with standard extended coveraga endorsemants on a replacemant basis for the full Insurable valua covering all Improvemants on the Real Property In an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee ciause In favor of lander. Policies shall be wrillen by such Insurance companlas and In such form as may be reasonably acceptable to lander. 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 Lendar 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 covarage In favor of Lender will not ba impaired In any way by any act. omission or default of Grantor or any other person. Should the Real Property be located In an area designated by the Director of the Federal Emergency Management Agençy as a special nood hazard area, Grantor agrees to obtain and maintain Fedaral Flood Insurance, If available. within 45 days after notice Is given by lender that the Property Is located In a special fiood hazard area, for the full unpaid principal balance of tha loan and any prior lIans on Ihe property securing the loan. up to the maximum policy limits set under the National Flood Insurance Program, or as otherwise required by lender, and 10 maintain such Insurance for the term of the loan. Application of Proceeda. Grantor shall promptly nollfy lender of any loss or damage to the Property. lender may make proof of loss If Grantor fails to do so within fifteen (15) days of the casualty. Whether or not lender's security Is Impalred, lender may, at Lender's election, receive and retain the proceeds of any Insurance and apply the proceeds to the reduction of the Indebtedness, payment of any lIan affecting the Property, or the restoration and repair of the Property. If lender elects to apply the proceeds to resloratlon and repair, Grantor shall repair or replace the damaged or destroyed Improvemants In a manner satisfactory to lender. lender shall, upon sallsfactory proof of such expenditure, payor reimburse Grantor from the proceeds for the reasonable cost of repair or restoration If Grantor Is not In default under this Mortgage. Any proceeds which have not been disbursed within 180 days after their receipt and which lender has not commllled to the repair or restoration of the Property shall be used first to pay any amount owing to lender under this Mortgage, then to pay accrued Interest, and the remainder, If any, shall be applied to the principal balance of the Indebtedness. If lender holds any proceeds after paymant In full of the Indebtedness. such proceeds shall be paid to Grantor as Grantor's Interests may appear. lENDER'S EXPENDITURES. If Grantor fails (A) to keep Ihe Property frae of alltaxes, liens, security Interests, encumbrances, and other cialms, (B) to provida any requlrad Insuranca on tha Proparty, or (C) to make repairs to the Property then lender may do so. If any action or proceeding Is commenced that would materielly affect lender's Interests in the Property, then lender on Grantor's behalf may, but Is not required to. take any action that lender bellevas to ba appropriate to protect lender's interests. All expenses Incurred or paid by lender for such purposes will then bear interest at the rate charged under the Note from the date Incurred or paid by lender to the date of repayment by Grantor. All such expenses will become a part of the Indebtedness and, at lender's option, will (A) be payabla on demand; (B) be added to the balance of the Note and be apportJoned among and be payable with any Installment payments to bacome due during either (1) tha term of any applicable Insurance policy; or (2) the remaining term of the Note; or (e) be treated as a balloon payment which will be due and payabla at the Note's maturily. The Mortgage also will secure payment of these amounts. The rights provided for In this paragraph shall ba in addillon to any other rights or any remedlas to which lender may be entilled on account of any default. Any such action by lender shall not be construed as curing the default so as to bar lender from any remedy that it otherwise would have had. WARRANTY; DEFENSE OF TITLE. The following provisions relallng to ownership of Ihe Property are a part of this Mortgage: Title. Grantor warrants that: (a) Granlor holds good and marketable IIlIe of record to the Property In fee slmple, free and clear of all liens and encumbrances other than thosa set forth In the Raal Property description or In any IIlIe insurance policy, tille report, or final title opinion Issued In favor of, and accepted by, lender In connecllon with this Mortgage, and (b) Grantor has the full right, power, and authority to execute and deliver this Mortgage to lender. Defense of Tltla. Subject to the exception In the paragraph above, Grantor warrants and will forever defend the tllle to the Property against the lawful claims of all persons. In the event any action or proceeding II commenced that questions Grantor's IIlIe or the interest of lender under this Mortgage, Grantor shall defend the action at Grantor's expense. Grantor may be the nominal party In such proceeding, but lender shall be entitled to participate in the proceadlng and to be represented In the proceeding by counsel of lender's own choice, and Grantor will deliver, or causa to be delivered, to lender such Instruments as lender may request from time to time to permit such partJclpallon. Compliance With Laws. Grantor warrants that the Property and Grantor's use of the Proparty complies with all existing appllcabla laws, ordinances, and regulations of govammental authorities. Survival of Promise.. All promlses, agreements. and statements Grantor has made In this Mortgage shall survive the execution and delivery of this Mortgage, shall be continuing In nature and shall remain In full force and effect until such time as Grantor's Indebtedness Is paid In full. CONDEMNATION. The following provisions relaling to condemnation proceedings are a part of this Mortgage: Proceeding.. If any procaeding In condemnation Is filed, Grantor shall promptly nollfy lender In wrlllng, and Grantor shall promptly take Loan No: 494025638 MORTGAGE (Continued) OOÐ850 Page 3 such steps es mey be necessery to defend the ection end obtain the award. Grantor may be the nominal party in such proceeding, but lender shell be entitled to perticlpete In the proceeding end to be represented In the proceeding by counsel of Its OWn choic~, end Grentor will deliver or cause to be delivered to lender such instruments end documentation es may be requested by Lender from time to time to pennlt such perticlpetion. Application of Net Proceeds. If all or any part of the Property Is condemned by eminent domain proceedings or by any proceeding or purchase in lieu of condemnation I lender may at Its election require that all or eny portion of the net proceeds of Ihe award be applied to the Indebtedness or the repair or restoration of the Property. The net proceeds of the eward shall meen the awerd after payment of all reasonable costs, expenses, and attomeys' fees Incurred by lender In connection with the condemnation. IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating to govemmentaltaxes, 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 Mortgage and take whatever other action Is requested by Lender to pertect and continue lende~s lien on the Real Property. Grantor shall reimburse lender for all taxes, as described below, together with all expenses Incurred In recording. pertecling or continuing this Mortgage, including without limitation all taxes, fees, documentary stamps, and other charges for recording or registering this Mortgage. Taxes. The following shall constitute taxes to which this seclion applies: (1) a specific tax upon this type of Mortgage or upon all or eny 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; end (4) a specific tax On all or any portion of the Indebtedness or on payments of principal and Interest mada by Grantor. Subsaquent Taxes. If any tax to which this section applies Is enacted subsequent to the date of this Mortgage, this event shall have the same effect as an Event of Default, and lender may exercise any or all of its available remedies for an Event of Default as provided below unless Grantor either (1) pays the tax before It becomes dellnquent, or (2) contests the tax as provided above in the Taxes and Uens section and deposits with lender cash or a sufficient corporate surety bond or other security satisfactory to lender. SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to this Mortgege as a security agreement are a part of this Mortgege: 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 amended from time to time. Security Interesl Upon request by lender, Grantor shall take whatever action Is requested by Lender to pertect and continue Lende~s security interest in the 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 finenclng statement. Grantor shall reimburse lender for all expenses incurred in pertectlng or continuing this security interest. Upon defeult, Grantor shall not remove, sever or detach the Personal Property from the Property. Upon default, Grantor shall assemble any Personal Property nol affixed 10 the Property In a manner and al a place reasonebly convenient to Grantor and lender and make it available to Lender within three (3) deys after receipt of written demand from Lender to the extent permitted by applicable law. Addresses. The mailing addresses of Grantor (debtor) and lender (secured party) from which Information concerning the security interest granted by this Mortgage may be obtained (each as required by the Uniform Commercial Code) are as stated On the first page of this Mortgage. FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating to further assurances and attorney-In-fact are a part of this Mortgage: Further Aesurances. At eny time, and from time to time, upon request of lender, Grantor will make, execute end deliver. or will cause to be made, executed or delivered, to lender or to lende~s designee, end when requested by Lender, cause to be filed, recorded I refiled, or rerecorded, as the case may be, at such times and in such offices and pieces as lender may deem appropriete, any and all such mortgages, deads of trust, security deeds, security agreements, financing statements, conlinuatlon statements, instruments of further assurance, certificates, and other documents es may, In the sole opinion of lender, be necessary or desirable in order to effectuate, complete, pertect, continue, or preserve (1) Granto~s obllgetlons under the Note, this Mortgage, and the Related Documents, and (2) the liens and security interests created by this Mortgage as first and prior liens on the Property, whether now owned or hereafter acquired by Grantor. Unless prohibited by law or lender agrees to the contrary in writing, Grantor shall reimburse lender for all costs end expenses Incurred in connection with the matters referred to In this paragraph. Attorney-in-Fact. If Grantor feils to do any of the things referred to In the preceding paragreph, Lender may do so for and In the name of Grantor and at Granto~s expense. For such purposes, Grentor hereby Irrevocably appoints Lender as Granto~s attomey-In-fact for the purpose of making, executing, delivering, fillng, recording, and doing all other things as may be necessary or desirable, in lende~s sole opinion, to accomplish the matters referred to in the praceding paragreph. FUll PERFORMANCE. If Grantor pays all the Indebtedness when due, and otherwise pertorms all the obllgetions Imposed upon Grantor under this Mortgage, Lender shall execute and deliver to Grantor a suitable satisfaction of this Mortgage and suitable statements of termination of any financing statement on file evidencing Lende~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 lender from time to time, EVENTS OF DEFAULT. At lende~s option, Grantor will be In default under this Mortgage If any of the following happen: Payment Default. Grantor falls to make any peyment when due under the Indebtedness. Default on Other Payments. Failure of Grantor within the time required by this Mortgage to meke any payment for taxes or Insurance. or any other payment necessary to prevent filing of or to effect discharge of any lien. Break Other Promises. Grantor breeks any promise made to Lander or falls to pertorm promptly at the time and strlctiy in the manner provided in this Mortgage or in any agreement related to this Mortgage. Default In Favor of Third Partie.. Should Grantor default under any loan, extension of credlt, security agreement, purchase or sales agreement, or any other agreement, In favor of any other creditor or person that may materially affect any of Granto~s property or Granto~s ability to repay the Indebtednass or Granto~s ability to pertorm Granto~s obligations under this Mortgaga or any related document. Fal.e Statemenls. Any representetion or statement made or furnished to lender by Grantor or on Granto~s behalf under this Mortgage or the Related Documents Is faise or misleading in any material respect, either now or at the time made or furnished. Defective Cotiaterallzatlon. 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 end pertected security Interest or lien) at any time and for any reason. Death or Insolvency. The death of Grantor, the Insolvency of Grantor, the appointment of a receiver for any part of Grantor's property, any assignment for the benefit of credltors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or Insolvency laws by or egalnst Grantor, Taking of the Property. Any creditor or governmental agency tries to take any of the Property or any other of Granto~s property In which lender has a lien, This Includes taking of, gemishing of or levying on Grantor's accounts with lender. However, if Grantor disputes in good faith whether the claim on which the taking of the Property Is based Is valid or reasonable, and If Grantor gives lender written notice of the claim and furnishes lender with monies or a surety bond satisfactory to lender to satisfy the claim I then this default provision will not apply. Breach of Other Agreement. Any breach by Grantor under the terms of any other agreement between Grantor and Lender that Is not remediad within any grace period provided thareln, including without limitation any agreement concerning any Indebtedness or other obligation of Grantor to Lender. whether existing nOW or later. Evenls Affecting Guarantor. Any of the preceding events occurs with respect to any guarantor, endorser, surety, or accommodation party of any of the Indebtedness or any guarantor, endorser, surety, or accommodation party dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness. In the event of a deeth, lender, at its option I may, but shall not be required to, permit the guaranto~s estate to assume unconditionally the obligations arising under the guaranty in a manner satisfactory to lender, and, in doing so, cure any Event of Default. Loan No: 494025638 MORTGAGE (Continued) O~D~51. .~' ....1 """;...~ . Page 4 Ins.curlty. L.nd.r in good fallh bali.v.s ilself insecure. Right to Cur.. If any default, olher than a default in paymantls curable and If Grantor has not been given a !'oUce .of a breach of the same provision of this Mortgage within the preceding twelve (12) months, It may be cured If Grantor, after receiving wntten noUce from Lender demanding cure of such default; (1) curas the default within fifteen (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 sufflclentto CUre the defaull and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon aa reasonably practical. RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default and at any time thereafter, Lender, at lender'a option, may exercise anyone or mora of the following rights and remedies, In addition to any other rights or remedies provided by law: Acc.l.rat. Ind.btedn.... Lander shall have tha right at its option without notice to Grantor to declare the antlre Indebtedness immediately due and payable, Including any prepayment penalty which Grantor would be required to pay. UCC Rem.dl... With respect to all or any part of the P.rsonal Property, Lender shall have all the rights and remadles of a secured party under the Uniform Commercial Code. ColI.ct Rent.. Lender shall have the right, without notice to Grantor, to taka possession of the Property, including during the pendency of foreclosure, whether Judicial or non-Judicial, and collect the Rents, including amounts past dua and unpaid, and apply the net proceeds, over and above lender's costs, against the Indebtedness. In furtherance of this right, Lender may raquire any tenant or other user of the Property to make payments of rant or use feas dlreclly to Lender. If the Rents are collectad by Lender, than Grantor Irrevocably designates Lander as Grantor's attorney-in-facl 10 endorse inslruments received In payment thereof in the name of Grantor and to negoliate the same and collect the proceeds. Payments by tenants or other users 10 Lender In response to lender's demand shall satisfy tha obligations for which the payments are made, whethar or not any proper grounds for Ihe demand existed. Lender may exercise lis rights under this subparagraph either In person, by agent, or through a receiver. Appoint R.c.lv.r. Lender shall have the right 10 hava a receiver appointed to take possession of all or any part of Ihe Property, with the power to protect and preserve the Property, to operate the Property preceding foraclosure or sale, and to collect the Rents from the Property and apply the proceeds, over and abova the cost of the receivership. against the Indebtedness. The recaiver may serve without bond if permitted by law. Lender's right to Ihe appointment of a receiver shali exist whether or not the apparent value of Ihe Property exceeds the Indebtedness by a subslantlal amount. Employment by Lender shall not disqualify a person from serving as a receiver. Judicial Foreclosure. Lender may obtain a judicial decrea foreclosing Grantor's interest In ali 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 sale, and specifically by "power of sale" or "advartlsement and sale" foreclosure as provided by statute. D.ficl.ncy Judgment. If permitted by applicable law, Lender may obtain a Judgment for any deficiency remaining in the Indebtednass due to Lender after application of all amounts received from the exercise of the rights provided In this section. Tenancy at Suffarance. If Grantor remains In possession of the Property after tha Property Is sold as provided abova or Lender otherwise becomes entilled to possession of the Property upon default of Grantor, Grantor shall become a tenant at sufferance of Lender or the purchaser of the Property and shali, at lender's option, either (1) pay a reasonable rental for the use of the Property, or (2) vacate the Property Immediately upon Ihe demand of Lendar. Other R.m.dles. L.ndar shall hava ali other rights and remedies provided In this Mortgage or the Note or available at law or in equity. Sal. 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 end remedies, Lender shali 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 the Property. Notice of Sale. lender will give Grantor reesonable 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. EI.ctlon of Remedl.s. All of lender's rights and remedies will be cumulative and may be exercised alone or together. An election by Lender to choose anyone remedy will not bar Lender from using any other remedy. If Lender decides to spend money or to perlorm any of Grentor's obligations under this Mortgage, after Grantor's failure to do so, that decision by Lender will not affect Lender's right to declare Grantor In default and to exercise lender's remedies. Attorneys' Fees; Expens.s. 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 mey adjudge reasonable es attorneys' fees at trial and upon any appeal. Whether or not any court action is involved I and to the extent not prohibited by law. all reasonable expenses Lender Incurs that in Lendar's opinion are necessery at any time for the protection of Its Interest or the enforcement of Its rights shall become a part of the Indebtedness payable on demend end shall bear interest at the Note rate from the date of the expenditure unUI repaid. Expenses covered by this paregraph include, without limitation, however subject to any limits under applicable law, lender's raasonable attorneys' fees and lender's legal expenses whether or not there Is a lawsuit, including reasonable attorneys' fees and expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection servicas, the cost of searching records, obtaining title reports (Including foreclosure reports), surveyors' reports, and appraisal fees and title Insurance, to the extent permitted by applicable law. Grantor also will pay any court costs, In addition to all other sums provided by law. NOTICES. Any notice required to be given under this Mortgage. including without IImltetlon any notice of default end eny notice of sale shall be given In writing, and shall be effective when actuelly delivered, when actually received by telefecsimlle (unless otherwise required by law), when deposited with a nationally recognized ovarnlght courier, or, if mailed, when deposited in the United States mall, as first class, certified or registered mall poslage prepald, directed to the addresses shown near the beginning of this Mortgage. All copies of notices of foreclosure from the holder of any lien which has priority over this Mortgage shall be sent to lender's address, as shown near the beginning of this Mortgage. Any person mey change his or her address for notices under this Mortgage by giving formal written notice to the other person or persons, specifying thatlhe purpose of the notice Is to change the person's address. For notice purposes, Grantor agrees to keep Lendar 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. It will be Grantor's responsibility to tell the others of the notlca from Lender. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Mortgage: Amendments. What is written in this Mortgage and In the Related Documents Is Grantor's entire agreement with lender concerning the matters covered by this Mortgage. To be effective, any change or amendment to this Mortgage must be in writing and must be signed by whoever will be bound or obligated by the change or amendment. Caption Heading.. 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. Gov.rnlng law. This Mortgage will b. governed by f.deral law applicable to Lender and, to the extent not pre.mpted by federal law, the laws of the Stat. of Wyoming without r.gard to Its conmct. of law provision.. This Mortgag. has b.en acc.pt.d by lend.r In the State of Wyoming. No Waiver by lender. Grantor understands Lender will not give up any of lendar's rights under this Mortgage unless Lender does so In writing. The fact that Lender delays or omits to exercise any right will not mean that lender has given up that right. If lender does agree in writing to give up one of Lender's rights, that does not mean Grantor will not have to comply with the other provisions of this Mortgage. Grantor also understands that If Lender does consent to a request, that does not mean that Grantor will not have to get lender's consent again if the situation happens again. Grantor further understands that Just because Lender consents to one or more of Grantor's requests, that does not mean Lender will be required to consent to any of Grantor's future requests. Grantor waives presentment, demand for payment, protest, and notice of dishonor. Grantor waives all rights of exemption from execution or similar law In tha Property, and Grantor agrees that the rights of Lender In the Property under this Mortgaga are prior to Grantor's rights while this Mortgage remains in effect. S.verablllty. If a court finds that any provision of this Mortgage Is not valid or should not be enforced, that fact by Itself will not mean that the rest of this Mortgage will not be valid or enforced. Therefore, a court will enforce the rest of the provisions of this Mortgage even if a provision of this Mortgage may be found to be invalid or unenforceable. . Merger. There shall be no merger of the Interest or estate created by this Mortgage with any other Interest or astate in the Property at any time held by or for the benefit of Lender In any capacity, without the written consent of Lender. Loan No: 494025638 MORTGAGE (Continued) 000852 Page 5 Successors end Assigns. Subject to any limitations stated In this Mortgage on trensfer 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 Dr extension without releasing Grantor from the obligations of this Mortgage or liability under the Indebtedness. Time Is of the Es.ence, Time Is of the essence In the peñonnance of this Mortgage. Waiver of Homestead Exemption. Grantor hereby releases and welves all rights and benefits of the homestead exemption laws of the State of Wyoming as to all Indebtedness secured by this Mortgage. DEFINITIONS. The following words shell have the following meanings when used In this Mortgage: Borrower. The word "Borrower" means Charles C.· Bumham and Includes all co-signers and co-makers signing the Note and all their successors and assigns. Environmental Law.. 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 Envlronmentel Response, Compensatlon, and LIability Act of 1980, as amended. 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Supeñund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq" or other eppllcable state or federel laws, rules, or regulations adopted pursuant thereto. Event of Dafault. The words "Event of Defeult" 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 Charles C. Burnham. Guaranty. The word "Guaranty" means the guaranty from guarantor, endorser, surety, or accommodation party to Lender, including without limitation a guaranty of all or part of the Note. Hazardous Substances. The words "Hazardous Substances' maan materials that, because of their quantity, concentration or physical, chemical Dr Infectious characteristics, may cause or pose a present or potential hazard to human health or the environment when Improperly used. treated, stored, disposed of, generated, manufactured. transported or otherwise handled. The words 'Hazardous Substances" are used In their very broadest sense and Include without limitation any and all hazardous or toxic substances, meterlals or waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances" also Includes, without limitation I petroleum and petroleum by-products or any fraction thereof and asbestos. Improvsments. The word "Improvements" means all existing and future Improvements, buildings, structures, mobile homes affixed on the Real Property, facilities, additions, replacements and other construction on the Real Property. Indebtsdnesa. 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 Dr advanced by Lender to discharge Grantor's obligations or expenses incurred by Lender to enforce Grantor's obligations under this Mortgage, together with Interest on such amounts as provided In this Mortgage. Lender. The word "Lender" means First Bank of Idaho, fsb. dba First Bank of the Tetons, Its successors and assigns. The words "successors or assigns" mean any person or company that acquires any Interest In the Note. Mortgage. The word "Mortgaga" means this Mortgage between Grantor and Lender. Note. The word "Note" means the promissory note dated June 29, 2007, in the original principal amount of $1,450,000.00 from Grantor to Lender, together with all renewals of, extensions of, modifications of. refinancings of, consolidations of, and substitutions for the promissory note or agreement. The maturity date of this Mortgage Is October 2, 2007. NOTICE TO GRANTOR: THE NOTE CONTAINS A VARIABLE INTEREST RATE. Personsl Propsrty. The words "Personal Property" mean all equip ent, fixtures, and other ertlcles of personal property now or hereafter owned by Grantor, and now or hereafter attached or affixed to the eal Property; together with all accessions, parts, and additions to, all raplacements of. and all substitutions for, any of such property; an together with all proceeds (Including without limitation all Insurance proceeds end refunds of premiums) from eny sale or other dlsposltlo of the Property. Property. The word "Property" means collectively the Real Property nd the Personal Property. Real Property. The words "Real Property" mean the real property, In erests and rights. as further described In this Mortgage. Ralated Documents. The words "Related Documents' mean all p omlssory noles, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of rust, security deeds, collateral mortgages, and all other Instruments, agreements and documents. whether now or hereafter existing, exec ted In connection with the Indebtedness. Rents. The word "Rents" means all present and future rents, reven es, income, Issues, royalties. profits, and other benefits darlved from the Property. GRANTOR ACKNOWlEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND GRANTOR AGREES TO ITS TERMS. INDIVIDUAL ACKNOWLEDGMENT STATE OF ¡YJ J C ,¡ f ~A.J . ) )SS ) COUNTY OF C f) " J.I {} " .J On this day before me. the undersigned Notary Public, personally appeared Charl.s C. Burnham, to me known to be the Individual described In and who executed the Mortgage, and acknowledged thai he or she signed the Mortgage as his or her free and voluntary act end deed, for the uses and purposes therein mentioned. ~. '". . Given d r my ha!,d. ~~d.C ciál.~~,~ ihl~ ~ . . '. ".~Þ\" ":;,. :21Vô .-r day of -' L( /... '( , 2D~. Residing at jt.tø- P¡:,.t.FIf....1J Alh, ßRrTLL ¿;J!.tdt. ,11( )0 , My commission .xplres J 0 ' :l , 11 'f tJv. .,.. By Notary Pul!"c 1K.JI!:1.IIJ.fJç' .' ~(tj1'!'11fT ~.I·? J.I I ": 4.JJ NOTAR¥ PUBLIC - STATE OF MICmGAN :ÇÇ)l;X:IT O\F <;\LHQ~ ; , ~ _ ". ç' ,. ') ...., ,J ~ ç' -~ ~ ,'j .., E~; "r! ¡E'ieot, ''Y.'·r:!'11t~''r.rtJOr{''"'"--·''' ''''....'. ...,;,> "". .... ~ ..', ~!,ll""': ,.,....., }\,> .... ""''-:::. "'" 1 .~;>' ,. 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