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HomeMy WebLinkAbout934145 "7 J 7 ./ 1,1 1 ;Z· u So. òVtJ , , RECORDATION REQUESTED BY: First Bank of Idaho, fsb, dba First Bank of the Tetons Jackson Office 185 Powderhom Lane PO Box 12860 Jackson, WY 83002 RECEIVED 10/17/2007 at 4:48 PM RECEIVING # 934145 BOOK: 675 PAGE: 867 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY WHEN RECORDED MAIL TO: First Bank of Idaho, fab, dba First Bank of the Tetons Jackson Office 185 Powderhom Lane PO Box 12860 Jackson, WY 83002 SEND TAX NOTICES TO: First Bank of Idaho, fsb, dba First Bank of the Tetons Jackson Office 185 Powderhom Lane PO Box 12860 Jackson. WY 83002 000867 SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY MORTGAGE THIS MORTGAGE dated October 3, 2007, Is made and executed between Tom's Creek, LLC (referred to below as "Grantor") and First Bank of Idaho, fsb, dba First Bank of the Tetons, whose address Is 185 Powderhom Lane, PO Box 12860, Jackson, WY 83002 (referred to below as "Lender"). GRANT OF MORTGAGE, For valuable consideration, Grantor mortgages and conveys to Lender all of Grantor's right, title, and Interest In and to the following described real property, together with all existing or 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 rights, royalties, and profits relating to the real property, Including: without limitation all minerals, 011, 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 Iffully set forth herein. The Real Prollerty or its address is commonly known as Tom's Creek Ranch, Lincoln County, WY. The Real Property tax jèlentlficatlon number Is 12-3319-21-1-00-042.00. Grantor presently assigns to Lender all of Grantor's right, title, and interest In and to all present and future leases of the Property and all Rents from the Property. In addition, Grantor grants to Lender a Uniform Commercial Code security Interest in the Personal Property and Renls. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT OF THE INDEBTEDNESS AND (B) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THE NOTE, THE RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: PAYMENT AND PERFORMANCE. Excepl as otherwise provided In Ihis Mortgage, Granlor shall pay to Lender all amounts secured by this Mortgage as they become due and shall strictly perform all of Grantor's obligations under this Mortgage. POSSESSION AND MAINTENANCE OF THE PROPERTY, Grantor agrees thai Grantor's possession and use of the Property shall be governed by Ihe following provisions: Possession snd Use. Until the occurrence of an Event of Derault, Grantor may (1) remain in possession and control of the Property; (2) use, operate or managa the Property: and (3) collect the Rants from the Property. Duty to Maintain. Grantor shall maintain the Property In tenantable condition and promptly perform all repairs, raplacements, and maintenance necessary to preserve Its value. Compliance With Envlronmentsl Laws. Grantor represents and warrants to Lander that: (1) During the period of Grantor's ownership of Ihe Property, there has been no use, generetion, manufacture, storege, 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 10 believe that Ihere 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. generaUon, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, aboul or from the Property by any prior owners or occupants of the Property, or (c) any actual or threatened litigation or claims of any kind by any person relaUng to such matters; and (3) Except as previously disclosed to and acknowledged by Lender in writing, (a) neither Grentor nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, menufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from the Property; and (b) any such activity shall be conducted In compliance with all applicable federal. state, and local laws, regulations and ordinances, Including without limitation all Environmental Laws, Grantor authorizes Lender and Its agents to enter upon the 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 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 investlgeting the Property for Hazardous Substances. Grantor hereby (1) releases end waives any future claims agelnst Lender for Indemnity or contribution In the event Granlor becomes liable for cleanup or other costs under any such laws; end (2) agrees to Indemnify, defend, and hold harmless Lender against any and all claims, losses. liabilities, damages, penalties, and expenses which Lender may directly or indlrectiy sustain or suffer resulting from a breach of this section of the Mortgage or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release occurring prior to Grantor's ownership or Interest in the Property, whether or not the same was or should have been known to Grantor. The provisions of this section of the Mortgage, Including the obligation to Indemnify and defend. shall survive Ihe payment of the Indebtedness and the satisfaction and reconveyance of the lien of this Mortgage and shall not be affected by Lender's acquisition of any interest in the Property, whether by foreclosure or otherwise. Nuisance, Waste. Grentor shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any stripping of or waste on or to the Property or any portion of the Property. Without limiting the generality of Ihe foregoing. Grantor will not remove, or grant to any other party the right to remove, any timber, minerals (including oil and gas), coal, clay, scoria, soil, gravel or rock products without Lender's prior written consent. Removal of Improvements. Grantor shall not demolish or remove any Improvements from the Real Property without Lender's prior written consent. As a condition to the removal of any Improvements, Lender may require Grantor to make arrangements satisfactory to Lender to replace such Improvements with Improvements of at least equal value. Lender's Right to Enter. Lender and Lender's egents and representatives may enter upon the Real Property at all reasonable times to attend to Lender's Interesls and to Inspect the Real Property for purposes of Grantor's compliance with the tenns and conditions of this Mortgage, Compliance with Govemmental Requirements, Grantor shall promptly comply with all laws, ordinances, and regulations, now or hereaner in effect, of all governmental authorities applicable to the use or occupancy of the Property, including without limitation, the Amaricans With Disabilities Act. Grantor may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, Including appropriate appeals, so long as Grantor has notified Lender In writing prior to doing so and so long as, In Lender's sole opinion, Lender's interests In the Property are not Jeopardized. Lender may require Grantor to post adequate security or a surety bond, reasonably satisfactory to Lender, 10 protect Lender's Interest. Duty to Protect. Grantor agrees neither to abandon or leave unattended the Property. Grantor shall do all other ects, 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. Loan No: 494025638 MORTGAGE (Continued) 000868 Page 2 DUE ON SALE . CONSENT BY LENDER. Lender may, at Lende~s option, declare Immediately due and payable all sums secured by this Mortgage upon the sale or transfer, without Lender's prior written consent, of all or any part of the Real Property, or any Interest In the Real Property. A "sale or transfer" means the conveyance of Real Property or any right, title or Interest In the Real Property; whether legal, beneficial or equitable; whather voluntary or Involuntary; whether by outright sale, deed, Instellment sale contract, land contract, contract for deed, leasehold Interest with a term greater than thrae (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. If any Grantor Is a corporalion, partnership or limited liability company, transfer also Includes any change In ownership of more than twenty-five percent (25%) of the voting stock, partnership Interests or limited liability company Interests, as the case may be, of such Grantor. However, this option shall not be exercised by Lender If such exercise Is prohibited by federal law or by Wyoming law, TAXES AND LIENS. Tha following provisions relaling to the taxes and liens on the Property ara part of this Mortgaga: Payment. Grantor shall pay when due (and in all events prior to delinquency) all texes. 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 randered 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 assassments not dua as further specified in the Right to Contest paragraph, Right to Contest. Grantor may withhold payment of any tax, assessment, or cialm In connection with a good faith dispute over the obligation to pay. so long as Landa~s Intarest In the Property Is not jeopardized. If a lien arises or Is filed as a result of nonpayment, Grantor shall within fifteen (15) days after the lien arises or, If a lien is filed, within fifteen (15) days after Grantor has notice of the filing, secure the dlscherge of the lien, or If requested by Lender, deposit with Lender cesh or a sufficient corporate surety bond or other security salisfactory to Lender In an amount sufficient to discharge the lien plus any costs and reasonable attorneys' fees, or other charges that could accrue as a result of a foreclosure or sale under the lien. In any contest, Grantor shall defend itself and Lender and shall satisfy any adverse judgment before enforcement against the Property, Grantor shall name Lender as an additional obligee under any surety bond furnished In the contest proceedings. Evidence of Payment. Grantor shall upon damand furnish to Lender satisfactory evidence of payment of the taxes or assessments and shall authorize the appropriate governmental official to deliver to Lander at any time a written statemant of the taxes and assessments against the Property. Notice of Construction. Grantor shall notify Lendar at least fifteen (15) days before any work Is commenced. any services are fumlshed, or any materials are supplied to the Property. if any mechanic's lien, materialmen's lien, or ather lien could be asserted an account of the work, services, or materials. Grantor will upon request of Lender furnish to Lender advance assurances satisfactory to Lender that Grantor can and will pay the cost of such improvements, PROPERTY DAMAGE INSURANCE, The fallowing provisions relating to insuring the Property are a part of this Mortgage: Malntenanca of Insurance. Grantor shall procure and melntaln policies of fire Insurance with standard extended coverage endorsements an a replacament basis for the full Insurable value covering all Improvemants on the Real Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of Lender, Grantor shall also procura and maintain comprehensive general liability Insurance In such coverege 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 as may be reasonably acceptable to Lender. Grantor shall deliver to Lender certificates of coverage from each insurer containing a stipulation that coverage will not be cancelled or diminished without a minimum of fifteen (15) 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 endorsemant providing that coverage in favor of Lender will not be impaired in any way by any act, omission or default of Grantor or any other person, Should the Real Property be located In an area designated by the Director of the Federal Emergency Management Agency as a special fiood hazard area. Grantor agrees to obtain and maintain Federal Flood Insurance, If available, within 45 days after notice is given by Lender that the Property is located In a special flood hazard area, for the full unpaid principal balance of the loan and any prior liens on the property securing the loan, up to the maximum polley limits set under the National Flood Insurance Program, or as otherwise required by Lender, and to maintain such Insurance for the term of the loan. Application of Proceeds. Grantor shall promptly notify Lender of any loss or damaga to the Property, Lender may make proof of loss If Grantor fails to do so within fifteen (15) days of the casualty, Whether or not Lender's security Is impaired, Lender may, at Lende~s elaction, receive and retain the procaeds of any Insurance and apply the proceeds to the reduction of the Indebtedness, payment of any lien affecting the Property, or the restoration and repair of the Property. If Lender alects to apply the proceeds to restoration and repair, Grantor shall repair or replace the damaged or destroyed Improvements in a manner satisfactory to Lender. Lender shall, upon satisfactory proof of such expenditure, payor reimburse Grantor from the proceeds far the reasonable cost of repair or restoralion If Grantor Is not In default under this Mortgage. Any proceeds which have not been disbursed within 1 BO days after their receipt and which Lender has not committed to the rapalr or restoretlon of the Property shall be used first to pay any amount owing to Lander under this Mortgage, then to pay accrued Interest, and the remainder, if any, shall be applied to the principal balance of the Indebtedness, If Lender holds any proceeds after payment in full of the Indebtadness, such proceeds shall be paid to Grantor as Granto~s Interests may appear. Grantor's Report on Insurance. Upon request of Lendar, however not more than once a year, Grantor shall furnish to Lender a report on each existing policy of insurance showing: (1) the name of the insurer; (2) the risks Insured; (3) the amount of the policy; (4) the property insured, the then current replacement value of such property, and the manner of determining that value; and (5) the expiration date of the policy. Grantor shall, upon request of Lender, hava an Independent appraiser satisfactory to Lender determine the cash value replacement cost of the Property. LENDER'S EXPENDITURES. If any action or proceeding is commenced that would materially affect Lender's interest In the Property or If Grantor fails to comply with any provision of this Mortgage or any Related Documents. including but not limited to Granto~s failure to discharge or pay when due any amounts Grantor is required to discharge or pay under this Mortgage or any Related Documents, Lender on Granto~s behalf may (but shall not be obligated to) take any action that Lender daems 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 for insuring, maintaining and preserving the Property. All such expenditures 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 Lende~s option, will (A) be payable on demand; (B) be added to the balance of the Note and be apportioned among and be payable with any Installment payments to become due during either (1) the tarm of any applicable insurance policy; or (2) the remaining term of the Note; or (C) be treated as e balloon payment which will be dua and payable at the Note's maturity. The Mortgage also will secure payment of these amounts, Such right shall be in addition to all ather rights and remedies to which Lender may be enlilled upon Default. WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the Property are a part of this Mortgage: Title. Grantor warrants that: (a) Granlor holds good and marketable title of record to the Property in fee simple, free and clear of all liens and encumbrances other than those set forth in the Raal Property description or In any title insurance policy, title report, or finaltitie opinion issuad in favor of, and accepted by, Lender in connection with this Mortgage, and (b) Grantor has the full right, power, and authority to execute and deliver this Mortgage to Lender. Defenee 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 Granto~s title or the Interest of Lender under this Mortgage, Grantor shell defend the action at Granto~s axpensa. Grantor may be the nominal perty in such proceeding, but Lender shall be entitled to participate In the proceeding and to be represented In the proceeding by counsel of Lende~s own choice, and Grantor will deliver,' or cause to be delivered, to Lender such instruments as Lender may request from time to time to permit such participation. Compliance With Laws. Grantor warrants that the Property and Granto~s use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities, ' Survival of Representations and Warranties, All representations, warranties, and agreements made by Grantor In this Mortgage shall survive tha execution and delivery of this Mortgage, shali be continuing in nature, and shall remain In full force and effect until such time as Grantor's Indebtedness shall be paid in full. CONDEMNATION. The following provisions relating to condemnation proceadings are a part of this Mortgage: Proceedings. If any proceeding In condemnation is filed, Grantor shall promptly notify Lender In writing, and Grantor shall promptly take Loan No: 494025638 MORTGAGE (Continued) 000869 Page 3 such steps as may be necessary to defend the action and obtain the award, Grantor may be the nominal party In such proceeding, but lender shall be entitled to participate in the proceeding and to be represented In the proceeding by counsel of Its own cholc~. and Grantor will deliver or cause to be delivered to lender such Instruments and documentation as may be requested by lender from time to time to permit such participation. Application of Nat Proceeds. If all or eny part of the Property Is condemned by eminent domain proceedings or by eny proceedl.ng or purchase In lieu of condemnation, lender may at Its election require that all or any portion of the net proceeds of the award be applied to the Indebtedness or the repair or restoration of the Property. The net proceeds of the award shall mean the award after payment of all raasonable costs, expenses, and attorneys' fees Incurred by lender In connection with the condemnation. IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating to governmentel taxes, fees and charges are a part of this Mortgage: Current Taxes, Fees and Charges. Upon request by lender. Grantor shall execute such documents In addition to this Mortgage and take whatever other action is requested by lender to pertect and continue lender's lien on the Real Property, Grantor shall reimburse lender for all taxes, es described below. together with all expenses Incurred in recording, pertectlng or continuing this Mortgage, Including without limitation all taxes, fees, documentary stamps, and other charges for recording or registering this Mortgaga. Taxes. The following shell constitute texes to which this section applies: (1) a specific tex upon this type of Mortgege or upon all or any part of the Indebtedness secured by this Mortgege; (2) a specific tax on Grantor which Grentor Is euthorized or required to deduct from payments on the Indebtedness secured by this type of Mortgage; (3) a tax on this type of Mortgage chargeable against the lender or the holder of the Note; and (4) a specific tax on all or any portion of the Indebtedness or on payments of principal and Interest made by Grantor, Subsequent Taxes. If any tax to which this section applies Is enected subsequent to the date of this Mortgage. this event shall have the same effect as an Event of Default, and lender mey exercise any or all of its avaIlable remedies for an Event of Default es provided below unless Grantor either (1) pays the tax before It becomes delinquent, or (2) contests the tax as provided ebove In the Taxes and Liens section and deposits with lender cash or a sufficient corporate surety bond or other security satisfactory to lender. SECURITY AGREEMENT: FINANCING STATEMENTS. The following provisions relating to this Mortgage as a security agreement are a pert of this Mortgage: Security Agreement. This Instrument shall constitute a Security Agreement to the extent any of the Property constitutes fixtures, end lender shell have all of the rights of a secured party under the Uniform Commercial Code as amended from time to time, Security Intarest. Upon request by lender, Grantot shall take whatever action Is requested by lender to pertect 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 euthorizatlon from Grentor, file executed counterparts, copies or reproductions of this Mortgage as a financing statement. Grentor shall reimburse lender for ell 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 not affixed to the Property In a manner and at a place reasonably convenient to Grantor and lender and make It available to lender within three (3) days after receipt of written demand from lender to the extent permitted by applicable law, Addresses. The mailing addresses of Grantor (debtor) and lender (secured party) from which Information concerning the security Interest grented by this Mortgege may be obtained (each as required by the Uniform Commerciel Code) are as stated on the first page of this Mortgage. FURTHER ASSURANCES: ATTORNEY-IN-FACT. The following provisions relating to further essurances and attorney-In-fact are a part of this Mortgage: Further Assurances. At any time, and from time to time. upon request of lender. Grantor will make, execute and deliver, or will cause to be mede, executed or delivered, to lender or to lender's designee, and when requested by lender, cause to be filed, recorded. refiled, or rerecorded. as the caSe may be, at such times and In such offices and places as lender may deem appropriate, any and all such mortgages, deeds of trust, security deeds, security agreements, finencing statements, continuation statements, Instruments of further assurence, certificates. and other documents as may, in the soie opinion of lender, be necessary or desirable In order to effectuate, complete. pertect. continue, or preserve (1) Grentor's obligations 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 hereefter acquired by Grantor. Unless prohibited by law or lender agrees to the contrary In writing, Grentor shall reimburse lender for ell costs and expenses Incurred In connection with the malters referred to in this paragraph. Attorney-In-Fact. If Grantor falls to do any of the things referred to in the preceding peragraph, lender mey do so for end In the name of Grantor and at Grantor's expense. For such purposes, Grantor hereby Irrevocably appoints lender es Grantor's attomey-In-fect for the purpose of making, executing, delivering, filing, recording. and doing all other things as may be necessary or desirable, In lender's sole opinion, to accomplish the matters referred to In the preceding paragraph, FULL PERFORMANCE. If Grantor pays all the Indebtadness when due. and otherwise pertorms all the obligations Imposed upon Grentor under this Mortgage, lender shall execute and deliver to Grantor a suitable satisfaction of this Mortgage and sultabla statements of termination of any financing statement on file evidencing lender's security interest In the Rents and the Personal Property. Grantor will pay, if permitted by applicable law, any reasonable termination fee as determined by lender from Ume to time, EVENTS OF DEFAULT. Each of the following, at lender's option, shall constitute an Event of Default under this Mortgage: Payment Default. Grantor falls to make any payment when due under the Indebtedness. Default on Other Payments. Failure of Grantor within the time required by this Mortgage to make any payment for taxes or Insurence, Dr any other payment necessary to prevent filing of or to effect discharge of any lien. Other Defaults. Grantor falls to comply with or to pertorm any other term, obligation, covenant or condition contained In this Mortgage Dr In any of the Related Documents Dr to comply with Dr to pertorm any term, obligation, covenant or condition contained In any other agreement between lender and Grantor, Default In Favor of Third Partie.. Should Grentor defeult under any loen. extension of credit, security egreement, purchese Dr sales agreement, Dr any other egreement, In favor of any other creditor Dr person that may materially effect any of Grantor's property Dr Grantor's ability to repay the Indebtedness Dr Grantor's ability to pertorm Grantor's obligations under this Mortgage or any related document. False Statements. Any warranty. representation or statement made or fumlshed to lender by Grantor or on Grantor's behalf under this Mortgage or the Related Documents Is false or mlslaadlng In any material respect, either now or at the time made Dr fumlshed Dr becomes false Dr misleading at any time thereafter. Dafectlve Collaterallzatlon. This Mortgage Dr any of the Ratated Documents ceaSeS to ba in full force and effect (Including failure of any collateral document to create a valid and perfected security Interest Dr lien) at any time and for any reason. Death Dr Insolvency. The dissolution of Grantor's (regardless of whether election to continue Is made), any member withdraws from the limited liability company, Dr any other termination of Grantor's existence as a going business Dr 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 cradllors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy Dr insolvency laws by Dr against Grantor. Creditor or Forfeiture Proceedings. Commencement of foreclosure Dr fortelture proceedings, whether by judicial proceeding, self-help, repossession Dr any other method, by any creditor of Grantor Dr by any govemmental 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 apply 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 Dr fortelture proceeding and If Grantor gives lender written notice of the creditor Dr fortelture proceeding and deposits with lender monies or e surety bond for the creditor Dr forteiture proceeding. In an amount determined by lender, In Its sole discretion, as being an adequate reserve Dr bond for the dispute. Breach of Other Agreement. Any breach by Grantor under the terms of any other agreement between Grantor and lender that Is not remedied within any grace period provided therein, Including without limitation eny agreement concerning eny Indebtedness Dr other obligation of Grantor to lendar, whether existing now Dr later. Loan No: 494025638 MORTGAGE (Continued) 000870 Page 4 Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the Indebtedness or any Guarantor dies or becomes Incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedne,ss, In the event of a death, Lender, at its option, may, but shall not be required to, permit the Guarantor's estate to assume unconditIonally the obligations arising under the guaranty In a manner satisfactory to Lender, and, In doing so, cure any Event of Default. Adverse Change. A material adverse change occurs in Grantor's financial condition, or Lender believes the prospect of payment or peñormance of the Indebtedness Is Impaired. Insecurity. Lender In good faith believes Itself Insecure. Right to Cure. If any default, other than a default In payment Is curable and If Grantor has not been given a notice of a breach of the same provision of this Mortgage within the preceding twelve (12) months, it may be cured If Grantor, after receiving wrillen notice from Lender demanding cure of such default: (1) cures the default within fifteen (15) days; or (2) If the cure requires more than fifteen (15) days, Immedletely initiates steps which Lender deems In Lender's sole discretion to be sufficient to cure the default and thereafter continues and completas all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default and at any time thereafter, Lender, at Lender's option, may 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 payable, Including any prepayment penalty that Grantor would be required to pay. UCC Remedlas, With respect to all or any pert of the Personal Property, Lender shell have all the rights and remedies of a secured perty 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 pandency 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 requira any tenant or other user of the Property to make payments of rent or use fees dlrectiy to Lender. If the Rents are collected by Lender, then Grantor Irrevocably designates Lender as Grantor's attorney-In-fact to endorse instruments received in payment thereof In the name of Grantor and to negotiate the same and collect the proceeds. Payments by tenants or other users to Lender In response to Lender's demand shall satisfy the obligations for which the payments ere 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 tha Indebtedness by a substantial emount. 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. Nonjudicial Sale. lender may foreclose Grantor's intarest In all or In any part of the Property by non-judlclel sale. end specifically by "power of sala" or 'advertlsement and sale" foraclosure as provided by statute. Deficiency Judgment. If permitted by appllceble law, Lender may obtain a Judgment for any deficiency remaining In the Indebtedness due to Lender after application of all amounts received from the exercise of the rights provided in this section. Tenancy at Sufferance. If Grantor remains in possession of the Property after the Property Is sold as provided ebove 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 tha use of the Property, or (2) vacete the Property Immediately upon the demand of Lender. Other Remedies, lender shall have all other rights and remedies provided In this Mortgage or the Note or available at law or In equity. Sale of the Property. To the extent permllled by applicable law, Grantor hereby waives any and all right to have the Property marshalled. In exercising its rights end remedies, lender shall be free to sell all or any part of the Property together or separately, in one sale or by separate sales. Lender shall be entltied to bid at any public sale on all or any portion of the Property. Notice of Sela. 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 atleest ten (10) days before the time of the sale or disposition. Any sale of the Personal Property may be made In conjunction with eny 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 peñorm an obligation of Grantor under this Mortgage, efter Grantor's failure to peñorm, 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 an Event of Default, or In any way to limit or restrict the rights and ability of Lender to proceed directly against Grantor and/or against any other co-maker, guarantor, surety or endorser and/or to proceed against any other collateral dlrectiy or Indlrectiy 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 pert 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 lew, Lender's reasonable attorneys' fees and Lender's legal expensas whether or not there Is a lawsuit, Including reasoneble attorneys' fees and expenses for bankruptcy proceedings (Including efforts to modify or vacate any automatic stay or Injunction), appeals, end any anticipated post-judgment collection services, the cost of searching records, obtaining title reports (Including foreclosure reports), surveyors' reports, and appreisal 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 telefacslmile (unless otherwise required by law), when deposited with 8 nationally recognized overnight courier, or, If mailed, when deposited In the United States mall, 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 chenge 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 pert of this Mortgage: Amendments. This Mortgage, together with any Related Documents, constitutes the entire understanding and egreement of the parties as to the matters set forth In this Mortgage. No alteration of or amendment to this Mortgege shell be effective unless given in writing end signed by the party or parties sought to be charged or bound by the alleratlon or amendment. 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 Heedlngs, Caption headings In this Mortgage ere for convenience purposes only and are not to be used to Interpret or define the provisions of this Mortgage. Govemlng Law. This Mortgage will be governed by federal law sppllcable to Lender and, to the extent not preempted by federal law, the laws of the State of Wyoming without regard to Its conflicts of law provisions. This Mortgage has been accepted by Lender In the State of Wyoming. Loan No: 494025638 MORTGAGE (Continued) 00087:1. Page 5 No Waiver by lender. lender shall not be deemed to have waived any 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 lende(s right otherwise. to demand strict compliance with that provision or any other provision of this Mortgage. No prior walvar by lender, nor any course of dealing between lender and Grantor, shall constitute a waivar of any of lender's rights or of any of Grantor'a obligations a~ to any future transactions. 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 raqulred and In all casas such consent may ba 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 unanforceable as to any other qlrcumatance. If feasible, the offending provision shall be considered modified so that It becomes legel, valid and enforceable. If the offending provision cennot be so modified, It shall be considered deleted from this Mortgage. Unless otherwise required by law, the Illegality, Invalidity, or unenforceebillty of any provision of this Mortgage shall not affect the legality, validity or enforceability of any other provision of this Mortgage. Mergar. There shall be no merger of the Interast or estate created by this Mortgage with any other Interest or estate In the Property at any time held by or for the benefit of lender In any capacity, without the written consent of lender. Successors and Assigns. Subject to any limitations stated 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 Mortgege. Waiver of Homestesd Exemption, Grantor hereby raleases and waives all rights and benefits of the homestead exemption laws of the State of Wyoming as to alllndebtednass secured by this Mortgage. DEFINITIONS, The following capitalized words and terms shall hava the following meanings when used In this Mortgage. Unless specifically stated to the contrary, all refarences to dollar amounts shall mean amounts In lawful money of the United States of America. Words and tarms used In the singular shall Include the plural, and the plural shall Include tha 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 Tom's Craek, 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 tilled "Default". Environmental laws, The words "Environmental Laws" maan any and all state, faderal 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 19BO, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amandments and Reauthorization Act of 1986, Pub. L No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., tha Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable state or federal lews, 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 Tom's Creek. llC. Guarsntor. The word "Guarentor" means eny guarantor, surety, or eccommodation party of any or all of the Indebtedness. Guaranty. The word "Guaranty" means the guaranty from Guarantor to lendar, 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, concentretlon or physlcel, chemical or Infectious characteristics, may cause or pose a present or potential hazard to human health or the environment when Improperly used, treated, stored, dlsposad of, generated. manufectured, trensported or otherwise handled, The words "Hazardous Substances· are used In their very broadest sensa and Include without limitation any and all hazardous or toxic substances, matarials 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 fracllon thareof and asbastos. Improvements. The word "Improvemants" maans all existing and future improvements, buildings, structures, mobile homes affixed on the Real Property, facilities, additions, replacements and othar construction on the Raal Property. Indebtedness. The word "Indebtedness" means all principal, Interest, and other emounts, costs and expensea payable under the Note or Ralated Documents, together with all renewals of, axtenslons of, modifications of, consolidations of and substitutions for tha Nota or Related Documents and any amounts axpended or advanced by lender to discharge Granto(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. Mortgage, The word "Mortgage" means this Mortgage between Grantor and lender, Nole. Tha word "Note" means the promissory note dated October 3, 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 July 2, 2009. NOTICE TO GRANTOR: THE NOTE CONTAINS A VARIABLE INTEREST RATE. Personal Property, The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter owned by Grantor, and now or hereafter attached or affixed to the Real Property; together with all accessions, parts, 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 Property. The words "Real Property" mean the real property, interests and rights, as further described In this Mortgage, Related Documents. The words "Related Documents" mean all promissory notes, credit agreements. loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other Instruments, agreements and documents, whether now or hereafter existing, executed In connection with the Indebtedness. Rents. The word "Rents" means all present and future rents, revenues, Income, Issues, royalties: profits, end other benefits derived from the Property, GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND GRANTOR AGREES TO ITS TERMS. r:?¿.C?~~ Charles C. Burnham, Manager of Tom's Creek, lLC Loan No: 494025638 MORTGAGE (Continued) UU087Z Page 6 LIMITED LIABILITY COMPANY ACKNOWLEDGMENT STATE OF f¥'l L u, h-J:f.~ . ) )SS ) " Ç;OUI TY OF' '. C 1/ l., f-/O..I J ....:··-·:..:.'~;j'l. ", ~ .' ',. .Q-......, ."\ 1'1 On this '.' ( f/ day of 0 c/'tV D ££; , 20 .lL.L.-, before me, the undersigned Nolary Public, personally . _ .-\' )lp~øa!,ep Charles C. Burnham, Manager of Tom's Creek, LLC, and known 10 me 10 be a member or designated agent of the limited liability .: :J:' '. () 'rompafly Ihå,t executed the Mortgage and acknowledged Ihe Mortgage 10 be Ihe free and voluntary act and deed of the limited liablllly company, " bx.aulhority . f;stalute, lis articles of organization or ils operating agreemenl, for the uses and purposes Iherein mentioned, and on oalh slaled ... that he Is al!thorlzed to exe e this Mortgage and In fact executed the Mortgage on behalf of the limited liability company. \ . r' .1.... P U @y\" ~ Residing at )M" PP,'¥"t f;.ú) 4¡)j, /J/1'd'¡,f/ ctl-,,¥-- Hi ':.:. N!!t¡o~~,'·ti~ío.rwj[¡¡"Ja~e~ta: ?i¡V. My commission expires IO-"a/~:~Oli ' . . " . . ,N(:f)i \:Y nJB .IL; - "lfU. J . "('.,"\' COU:"¡TY OF CALHOl.JN . MY Cm.·l~llSS10N EXPIRES OCT 21, ~Ol1 .. . ~ '-' ~ .. il '\' ~ V,',5.3&.Ia.OOI c-.........F"'--I."""'-.Inc. 1"",100'. .....__........... .WV H:'CONV(RncF....,.,,\003.FC T..~UI M-1'tE1\ ORDER NUMBER: NTL-1504 EXHffiIT "A" 000873 A PORTION OF THE FORMER TROUT UNLIMITED PROPERTY MANAGEMENT LLC PROPERTIES AS REFERRED TO IN THE DEEDS RECORDED IN BOOK 635PR, ON PAGE 551, AND BOOK 634PR, ON PAGE 382 WITH THE OFFICE OF THE CLERK OF LINCOLN COUNTY, WYOMING WITHIN SECTIONS 21 AND 22, T33N, R119W, OF THE 6TH P.M., LINCOLN COUNTY, WYOMING, THE METES AND BOUNDS BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS. BEGINNING AT A POINT ON THE STATE LINE BETWEEN IDAHO AND WYOMING IN SECTION 21 OF T33N R119W, SAID POINT OF BEGINNING, BEING A MONUMENT BY LLOYD B BAKER & ASSOC. PElLS 698, 2007 LOCATION FOR THE SECTION CORNER OF SECTIONS 16 AND 21; THENCE, S88°49'50"E, ALONG THE SOUTH LINE OF SECTION 16,423.44 FEET TO THE U.S. DEPT. OF THE INTERIOR, BUR. OF LAND MANAGEMENT, 1971 LOCATION FOR THE Y4 CORNER BETWEEN SAID SECTIONS 16 AND 21; THENCE, S88°49'50"E, ALONG THE SOUTH LINE SAID SECTION 16, 1317.15 FEET, TO THE LLOYD B BAKER & ASSOC. PEILS 698, 2007 LOCATION FOR THE E 1/16 CORNER BETWEEN SAID SECTIONS 16 AND 21; THENCE, SOoo45'40"W, ALONG THE WEST LINE OF THE EYz OF THE EYz OF SAID SECTION 21,1316.52 FEET TO THE LLOYD B BAKER & ASSOC. PElLS 698, 2007 LOCATION FOR THE NE 1/16 CORNER OF SAID SECTION 21; THENCE, SOoo45'40"W, ALONG THE WEST LINE OF THE EYz OF THE EYz OF SAID SECTION 21, 658.26 FEET TO THE LLOYD B BAKER & ASSOC. PElLS 698, 2007 LOCATION FOR THE C-S-NE 1/64 CORNER OF SAID SECTION 21; THENCE, S89°00'13 liE, ALONG THE SOUTH LINE OF THE NYz OF THE SYZ OF THE NYz OF SAID SECTION 21,1321.18 FEET TO THE LLOYD B BAKER & ASSOC. PEILS 698, 2007 LOCATION FOR THE S-N 1/64 CORNER OF SAID SECTION 21; THENCE, SOoo38'36"W, ALONG THE WEST LINE OF SECTION 22,656.94 FEET TO THE MARLOWE A SCHERBEL PLS 5368,2003 LOCATION FOR THE WY4 CORNER OF SAID SECTION 22; THENCE, S89°38'57"E, ALONG THE SOUTH LINE OF THE NYz OF SAID SECTION 22, 2533.08 FEET TO THE MARLOWE A SCHERBEL PLS 5368, 2003 LOCATION FOR THE CY4 CORNER OF SAID SECTION 22; THENCE, SOoo25'02"W, ALONG THE WEST LINE OF THE EYz OF SAID SECTION 22, 2676.65 FEET TO THE PAUL N SCHERBEL RLS 164, 1986 LOCATION FOR THE Y4 CORNER BETWEEN SECTIONS 22 AND 27; THENCE, N89°32'57"W, ALONG THE NORTH LINE OF SAID SECTION 27, 2643.62 FEET TO THE PAUL N SCHERBEL RLS 164, 1986 LOCATION FOR THE SECTION CORNER OF SECTIONS 21, 22, 27 & 28; THENCE, NOoo38'36"E, ALONG THE EAST LINE OF SAID SECTION 21, 1313.88 FEET TO THE LLOYD B BAKER & ASSOC. PElLS 698, 2007 LOCATION FOR THE S 1/16 OF SAID SECTION 21; THENCE, N89°lO'38"W, ALONG THE NORTH LINE OF THE SYZ OF THE SYZ OF SAID SECTION 21, 1325.22 FEET TO THE LLOYD B BAKER & ASSOC. PElLS 698, 2007 LOCATION FOR THE SE 1/16 CORNER OF SAID SECTION 21; THENCE, NOoo45'40"E, ALONG THE EAST LINE OF THE WYZ OF THE EYz OF SAID SECTION 21, 468.41 FEET TO THE PElLS 698, 2007 LOCATION OF A PROPERTY CORNER CAP FOR PARCEL 2; THENCE S90000'OO"W, ALONG THE NORTH LINE OF SAID PARCEL 2, 1724.84 FEET TO A POINT ON THE STATE LINE BETWEEN WYOMING AND IDAHO, ALSO BEING THE PEILS 698, 2007 LOCATION OF A PROPERTY CORNER CAP FOR SAID PARCEL 2; THENCE, NOoo30'11"E, ALONG SAID WYOMING/IDAHO STATE LINE, 876.42 FEET TO THE LLOYD B BAKER & ASSOC. PElLS 698, 2007 LOCATION FOR THE WY4 CORNER OF SAID SECTION 21; THENCE, NOoo30'11"E, ALONG SAID WYOMING/IDAHO ST A IE LINE, 2640.12 FEET TO THE POINT OF BEGINNING. AL TA Commitment (6/17/06)