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HomeMy WebLinkAbout934762 When recorded return to: nl~ Imtd l1tle _C9mpany SINCE 1904 Jessica Tapia/Jason Sarmiento LandAmerica Commercial Services 1850 North Central Avenue, Suite 300 Phoenix, Arizona 85004 Escrow No. 007-532 'IS 1/2 0·00368 Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing ,4 .Jt; RECEIVED 11/13/2007 at 10:25 AM RECEIVING # 934762 BOOK: 678 PAGE: 368 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY ,/ "'j Î/'-" MORTGAGE 000369 I ASSIGNMENT OF LEASES AND RENTS, SEC ITY AGREEMENT, AND FIXTURE FILING THIS MORTGAGE, ASSIGNMENT OF LEASES AND NTS, SECURITY AGREEMENT, AND FIXTURE FILING (as it may be amended, supplemented, extended or renewed from time to time, the "Mortgage") is made as of November 5, 2007 by HB PROPERTIES, L.C., a Utah limited liability company ("Borrower") wh semailingaddressis2280S.Main Street, Salt Lake City, Utah 84115, LandAmerica Commercial Services, a Nevada Corporation ("Lender"), Lender, whose mailing address is 1850 N. Central Avenue, Phoenix, AZ 85004, and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation ("Lender"), as beneficiary, whose mailing address is 8377 East Hartford Drive, Suite 200, Scottsdale, Arizona 85255. THIS MORTGAGE COVERS EQUIPMENT AND GOODS WHICH ARE OR ARE TO BECOME FIXTURES, IS EFFECTIVE AS A FINANCING STATEMENTS, AS A FIXTURE FILING AND IS TO BE FILED IN THE REAL ESTATE RECORDS. FOR VALUABLE CONSIDERATION, Borrower mortgages, grants, conveys, and transfers to Lender, in trust, WITH POWER OF SALE AND RIGHT OF ENTRY, for the benefit and security of Lender, the real property described on Exhibit A (the "Land"), together with all rights and privileges appurtenant thereto and together with the following described property and property rights now owned or hereafter acquired by Bon"ower or hereafter used or useful in connection with the use or operation of the Land (all such property and property rights as described in subsections (a) through (f) below, together with the Land, being collectively refeJTed to as the "Mortgaged Property," with references in this MOt1gage to the Mortgaged Property to mean and include all or any portion of or interest in any of the MOt1gaged Property): (a) Any and all buildings and other improvements now or hereafter located or erected on the Land, including any and all items ofpropel1y now or hereafter attached or affixed to such buildings or other improvements (or any portion thereof), all of which are agreed to constitute fixtures and to be an integral part of the real prope11y. All of the property described in this subsection (a) is intended and agreed to be an integral part of the real property and is collectively described as the "Improvements." The Land and the Improvements are refetTed to in this MOt1gage as the "Premises." (b) All now or hereafter existing leasehold estates in the Premises and all right, title, estate and interest of Borrower, as lessor or sublessor, in and to all leases or subleases covering any portion of the Premises thereof now or hereafter existing or entered into, including all cash or security deposits, advance rentals, and deposits or payments of similar nature (collectively, the "Leases"); and all rents, issues, profits, damages, income and other benefits now or hereafter derived from any of the Premises (collectively the "Rents"); (c) All of BOlTower's right, title, estate and interest now or hereafter existing in any and all (i) interest, estate or other claim, in law or in equity, in any of the Premises, including any greater estate in either the Land or the Improvements; (ii) easements, rights-of-way and other rights used in connection with the Premises, including all rights to the nonexclusive use of common drive entries; (iii) land lying within the right-of-way of any street, open or proposed, adjoining the Premises, and any and all sidewalks, alleys and strips and gores ofland adjacent to or used in connection with the Premises; and (iv) awards made for the taking by eminent domain, or by any proceeding of purchase in lieu thereof, of the whole or any part of the Premises (including awards for severance damages); (d) All of Borrower's right, title, estate and interest in and to any and all plans and specifications, designs, drawings and other matters prepared for any construction on the Premises or regarding the Improvements; (e) All of the following described property, whether now owned or hereafter acquired and wherever located, together with all replacements and substitutions therefor and all cash and non-cash proceeds, including insurance proceeds and titIe insurance proceeds, and products thereof, and, in the case of tangible Collateral, togetl1er with all additions, attachments, accessions, paJ1s, equipment and repairs now or hereafter attached or affixed thereto or used in connection therewith: All of BOlTower's right, title, and interest in: (a) all types of property included within the tenn "equipment" as defined by the UCC (except vehicles, boats and airplanes), including machinery, furniture, appliances, trade fixtures, tools, and office and record keeping equipment; (b) all inventory, including all goods held for sale, raw materials, work in process and materials or supplies used or consumed in BOlTower's business; (c) all documents; general intangibles; accounts; contract rights; chattel paper and instruments; money; securities; investment properties; deposit accounts; suppOlting obligations; letters of credit and letter of credit rights; commercial tOtt claims; and records, software and information contained in computer media (such as data bases, source and object codes and infonnation therein), together with any equipment and software to create, utilize, maintain or process any such records or data on electronic media; (d) any and all plans and specifications, designs, drawings and other matters prepared for any construction on any real property owned by or leased to Bon"ower or regarding any improvements to any of such real propeJ1y; and (e) goodwill; provided, however, that the security interest in any franchise, license, or distributorship agreement is subject to the provisions of Section 9-408 of the UCC (all of the property described in this subsection (e) being refelTed to as the "Personal Property); and (f) All proceeds, both cash and non-cash, of any of the foregoing. GECC Contract No. 33775 GECC Property No. 8004-8377 (Store #12585) Aftol1, WY 414798.1 600370 TO HAVE AND TO HOLD the Mortgaged Property hereby mortgaged and conveyed or so intended, together with all estate, right, title and interest of the Bonower and anyone claiming by, through or under the Borrower, in, to, under or derived &om the Property and all rights and appurtenances relating thereto, unto Lender, its successors and assigns forever, upon the tenns, provisions and conditions set forth in this Mortgage, subject only to the Pennitted Exceptions. This Mortgage is being made pursuant to the tenns and conditions of the Loan Agreement, of even date herewith, between Bonower, as Borrower, and Lender (as it as it may be amended, amended. restated, supplemented, extended or renewed from time to time, the "Loan Agreement"). Capitalized tenns used in this Mortgage and not otherwise dermed in this Mortgage have the meanings given to those tenns in the Loan Agreement. . ARTICLE 1 OBLIGATIONS 1.1 Oblieations Secured This Mortgage is given to secure payment and perfonnance of the Obligations as defined in the Loan Agreement, including: (a) Payment of the indebtedness in the original principal balance of $14,000,000.00, with interest thereon, evidenced by the Note, together with all extensions, renewals, amendments, and modifications thereof; (b) Payment of all other Indebtedness and other sums, with interest thereon, which may be owed under, and perfonnance of all other Obligations contained in or arising under the Loan Agreement, the Note, and any other Loan Document, together with any other instrument given to evidence or further secure the payment and perfonnance of any Obligation secured hereby or thereby; (c) Payment of all Indebtedness and other sums, with interest thereon, which may be owed under, and perfonnance of all other Obligations contained in or arising under any Related Agreement, together with any other instrument given to evidence or further secure the payment and perfunnance of any Obligation secured hereby or thereby; and (d) . Payment and perfonnance of all of the other Obligations; provided. however, that, any other provision of this Mortgage or the Loan Documents to the contrary notwithstanding, this Mortgage does not secure any of the obligations of Borrower under the Environmental Indemnity Agreement, it being the intent and agreement of the parties that the obligations ofBonower under the Environmental Indemnity Agreement be and remain unsecured by any interest in the Mortgaged Property. It is the intent of the parties that the Mortgaged Property shall secure all of the Obligations presently or hereafter owed, and that the priority of the Lien created by this Mortgage for all such Obligations shall be as of the time of recording of this Mortgage. In addition, this Mortgage shall also secure the unpaid balances of advances (a) made with respect to the Mortgaged Property for the payment of taxes, assessments, insurance premiums, costs or any other advances incurred for the protection of the Mortgaged Property or (b) otherwise made by Lender as contemplated by this Mortgage or any of the· other Loan Documents, together with interest thereon until paid at the Default Rate, all as contemplated in this Mortgage and the other Loan Documents, all of which shall constitute a part of the Obligations. THIS SECfION SHALL SERVE AS NOTICE TO ALL PERSONS WHO MAY SEEK OR OBTAIN A LIEN ON THE MORTGAGED PROPERTY SUBSEQUENT TO THE DATE OF RECORDING OF THIS MORTGAGE, THAT UNTIL THIS MORTGAGE IS RELEASED, ANY DEBT OWED LENDER BY BORROWER, INCLUDING ADVANCES MADE SUBSEQUENT TO THE RECORDING OF THIS MORTGAGE, SHALL BE SECURED WITH THE PRIORITY AFFORDED THIS MORTGAGE AS RECORDED. 1.2 Duration of MortlZaee. This Mortgage and all of the tenns, conditions, and obligations contained in this Mortgage shall continue in full force and effect until such time as all indebtedness under the Note and all other Obligations have been fully and finally paid and perfonned, at which time this Mortgage shall be void, and Lender agrees to execute an instrument evidencing the satisfaction of all obligations under this Mortgage and releasing this Mortgage. As a condition to such release, Borrower agrees to reimburse Lender for Lender's reasonable out-of-pocket expenses incurred in connection with the release, and Borrower shall also pay Lender a reasonable processing fee in connection with such release. ARTICLE 2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER 2.1 ~. The Mortgaged Property shall be used solely for the operation of a PeffiÚtted Concept in accordance with the Franchise Agreement and for no other purpose. Borrower shall not, without Lender's prior written consent, (a) initiate or acquiesce in a change in the zoning classification (including any variance under any existing zoning ordinance applicable to the Mortgaged Property); (b) pennit the use of the Mortgaged Property to become a non-confonning use under applicable zoning ordinances; (c) file any subdivision or parcel map affecting the Mortgaged Property; or (d) amend, modifY or consent to any easement or covenants, conditions and restrictions pertaining to the Mortgaged Property. 2.2 Operations. Except as set forth below and except as otherwise provided with respect to casualty or condemnation, Bonower shall at all times occupy the Premises and diligently operate its business at the Premises. Borrower may cease business operations at the Premises for a period not to exceed 90 days and may do so only once within any 5-year period while this Mortgage is in effect If Bonower discontinues operations as peffiÚtted by this Section, Bonower shall: (a) give written notice to Lender within 10 days after Bonower elects to 2 GECC Contract No. 33775 GECC Property No. 8004-8377 (Store #12585) Afton, WY 414798.1 600371. cease operation; (b) provide adequate protection and maintenance of the Mortgaged Property during any period of vacancy; and (c) pay all costs necessary to restore the Mortgaged Property to its condition on the day operations ceased, such that Borrower can resume operations. Borrower shall not, and shall not pennit any tenant to, by itself or through any lease or other type of transfer, convert the Mortgaged Property to an altemative use while this Mortgage is in effect without Lender's consent, which consent shall not be unreasonably withheld or conditioned. Lender may consider any or all of the following in detennining whether to grant its consent, without being deemed to be unreasonable: whether the converted use will be consistent with the highest and best use of the Mortgaged Property and whether the converted use will increase Lender's risks or decrease the value of the Mortgaged Property. 2.3 Access: Encroachments: Other Interests. To the best of Borrower's knowledge: (a) permanent, legal access is available to the Premises from a physically open and dedicated public right-<>f-way; (b) the legal description attached to the Mortgage accurately and completely describes the Premises; (c) all Improvements are located within the boundary lines of the Premises and do not encroach upon the land of any adjacent owner; (d) no improvements of any third Person encroach upon the Premises; and (e) no Person has any unrecorded right, title or interest in the Premises or the other Mortgaged Property, whether by right of adverse possession, prescriptive easement, right of first refusal, right of first offer, option to purchase, lease, or other Contractual Obligation. 2.4 ~. Adequate public or private utilities are available at the Premises to pennit operation of the Premises as a Pennitted Concept, and all utility connection fees and use charges will have been paid in full prior to delinquency. 2.5 Mechanics' Liens. There are no delinquent accounts payable or mechamcs' Liens in favor of any materialman, laborer, or any other Person in connection with labor or materials furnished to or perfonned on any portion of any Mortgage Unit and no work has been perfonned or is in progress, nor have materials been supplied to any such Mortgage Unit or agreements entered into for work to be perfonned or materials to be supplied to any such Mortgage Unit prior to the date of this Agreement, which will be delinquent on or before the Closing Date. 2.6 Zoning. To the best of Borrower's knowledge, the Premises are unconditionally zoned by the appropriate Governmental Authority for the use of the Premises for the Permitted Concept. 2.7 Maintenance and Reoair. Borrower shall: (a) maintain the Mortgaged Property and, to the extent allowed by law, abutting grounds, sidewalks, roads, parking, and landscape areas in good condition and repair, subject to reasonable and ordinary wear and tear, and ftee from actual or constructive waste; (b) operate, remodel, update and modernize the Mortgaged Property as required by the Franchise Agreement or as is otherwise prudent and reasonable; subject, however, to the provisions of the Section of this Mortgage entitled "Alterations and Improvements"; (c) pay all operating costs of the Mortgaged Property in the ordinary course of business, including utility costs; and (d) not do or allow any tenant or other user of the Mortgaged Property to do any act that materially increases the dangers to human health or the environment; poses an unreasonable risk of hann to any Person (whether on or off the Premises), impairs or is reasonably likely to impair in any material respect the value of the Mortgaged Property, is contrary to any Requirement of Law, or violates in any material respect any covenant, condition, agreement or easement applicable to the Mortgaged Property. 2.8 Alterations and hnprovements. Borrower shall not make any alterations to the Mortgaged Property without the prior written consent of Lender, which consent shall not be unreasonably withheld or conditioned, except that Borrower may make nonstructural alterations to the Mortgaged Property costing less than $100,000 without Lender's consent. For purposes of this Mortgage, structural alterations include any alterations or additions to the Mortgaged Property that would (a) affect the foundation of the hnprovements; (b) involve the slructural elements of the Improvements, such as a load-bearing wall, structural beams, colunms, supports or roof; or (c) materially affect any of the building systems, including the electrical systems, plumbing, HV AC and tire and safety systems. All alterations and additions shall be undertaken and completed at Borrower's sole expense and in accordance with plans and specifications approved by Lender and, except to the extent that Lender's consent to such alteration or addition is not otherwise required, subject to such other reasonable conditions as Lender shall require. All such work shall be undertaken using licensed contractors, shall be prosecuted diligently to completion, shall be of good workmanship and materials, and shall comply fully with all the tenns of this Mortgage, the Franchise Agreement, and all Requirements of Law. Upon completion of any alterations or additions to the Mortgaged Property, at Lender's request, Borrower shall promptly provide Lender with evidence of full payment to all laborers and materialmen contributing to the alterations, an architect's certificate certifying the alterations to have been completed in confonnity with the plans and specifications, a certificate of occupancy (if the alterations are of such a nature as would require the issuance of a certificate of occupancy), and any other documents or infonnation reasonably requested by Lender. 2.9 Condemnation. (a) Takings: Continuation of Obligations. If there is a taking ofthe Mortgaged Property or the commencement of any proceedings or negotiations which might result in a taking, for any public or quasi-public purpose by any lawful authority by exercise of the right of condemnation or by agreement between Lender, Borrower and those authorized to exercise such right in lieu of condemnation (a "Taking"), Borrower will promptly give Lender written notice of the Taking, generally describing the nature and extent of such Taking. No Taking shall relieve Borrower of any of its Obligations, including its obligations to make the regularly scheduled payments of principal and interest under the Note. (b) Lender's Right to Particioate. Borrower authorizes and empowers Lender, at Lender's option and in Lender's sole discretion, to settle, adjust, or compromise any claim for loss or damage in connection with any Taking or proposed Taking and, 3 GECC Contract No. 33775 GECC Property No. 8004-8377 (Store#I2S85) Afton, WY 414798.1 000372 without regard to the adequacy of its security, to commence, appear in and prosecute in its own name or on behalf of Borrower any such action or proceeding arising out of or relating to a Taking or proposed Taking. (c) Restoration Oblil!ations. Promptly following the occurrence of a Taking, other than a Total Taking (dermed below), Borrower shall, at Borrower's expense, commence and diligently complete the repair, restoration, replacement, and rebuilding of the Mortgaged Property as nearly as possible to its value, condition and character immediately prior to the Taking (a "Restorødon"). Borrower shall not be excused from repairing or maintaining the Mortgaged Property or from the obligation to restore, replace and rebuild the Mortgaged Property, regardless of whether or not there are Condemnation Proceeds available to Borrower or whether any such Condemnation Proceeds are sufficient in amount, and the application or release by Lender of any Condemnation Proceeds shall not cure or waive any default or notice of default under this Mortgage or the other Loan Documents or invalidate any act done pursuant to such default (I" notice of default. (d) ADDlication of Condemnation Proceeds. All compensation, awards, damages, rights of action and proceeds awarded to Borrower by reason of any such Taking or damage or received by Borrower as the result of a transfer in lieu of a Taking (the "Condemnation Proceeds") are assigned to Lender, and Borrower agrees to execute such further assignments of the Condemnation Proceeds as Lender may require. If Borrower receives any Condemnation Proceeds, Borrower shall promptly pay over such proceeds to Lender. All Condemnation Proceeds will be applied by Lender to payment of the Obligations in such order as Lender shall detennine; provided, however, that if no Default has occurred and is continuing, the Condemnation Proceeds, less the costs, fees and expenses incurred by Lender and Borrower in the collection thereof, including reasonable attorneys' fees and expenses (the "Net Condemnation Proceeds"), shall be made available to Borrower as follows: (i) In case of a Taking of substantially all of the Mortgaged Property or of such a portion of the Mortgaged Property that the remaining Mortgaged Property cannot reasonably be used for the purposes for which used prior to the Taking, other than a Taking for a temporary use (a "Total Taking"), the Net Condemnation Proceeds shall be allocated and applied in the following order: First, to Lender, to pay any and all amounts owed to Lender pursuant to any of the Loan Documents, other than on account of principal, accrued interest, and any amounts due in connection with a prepayment of principal; Second, to Lender, to pay any and all amounts due in connection with a prepayment of principal, such as prepayment premiums and fees; Third, to Lender, to pay all accrued and unpaid interest as of the date of the payment; Fourth, to Lender, to pay the entire remaining unpaid principal balance of the Note; and Fifth, to Borrower, any remaining Net Condemnation Proceeds. If the Net Condemnation Proceeds are not sufficient to fully satisfy priorities First though Fourth above, Borrower shall pay to Lender, simultaneously with the payment of such Net Condemnation Proceeds to Lender, the amount necessary such that, together with the Net Condemnation Proceeds, priorities First through Fourth are fully satisfied and paid; and (ii) In the case of any Taking which is not a Total Taking, the Net Condemnation Proceeds shall be made available to Borrower to be used by Borrower to satisfy its Restoration obligations, substantially in the manner and according to the procedures, limitations, and requirements provided in the Loan Agreement for the distribution of Net Insurance Proceeds of$25,000 or more. 2.1 0 ~. Borrower waives any and all right to claim or recover against Lender, any of the other Lender Parties, for loss of or damage to Borrower, the Mortgaged Property, Borrower's property or the property of others under Borrower's control, from any cause insured against or required to be insured against by this Mortgage. 2.11 No Discharl!e. The obligations and liabilities of Borrower under this Mortgage or any of the other Loan Documents shall in no way be released, discharged or otherwise affected (except as otherwise expressly provided in the Loan Documents) by reason of: (a) any damage to or destruction of or any condemnation or similar taking of the Mortgaged Property; (b) any restriction or prevention of or interference by any Person with any use of any of the Mortgaged Property; (c) any title defect or encumbrance or any eviction from the Mortgaged Property by title paramount or otherwise; (d) any bankruptcy, insolvency, reorganization, composition, adjus1ment, dissolution, liquidarlon or other like proceeding relarlng to Lender, or any action taken with respect to this Mortgage by any trustee or receiver of Lender, or by any court, in any such proceeding; (e) any claim that Borrower has or might have against Lender; (f) any default or failure on the part of Lender to perform or comply with any of the terms of the Loan Documents or of any Related Agreement; or (g) any other occurrence whatsoever, whether similar or dissimilar to the foregoing; whether or not Borrower shall have notice or knowledge of any of the foregoing. Borrower waives all rights now or hereafter conferred by statute or otherwise to any abatement, suspension, deferment, diminution or reduction of any sum secured hereby and payable by Borrower. 2.12 Actions Affectinl! Mortl!al!ed ProDertv. Borrower shall give notice in writing to Lender of and, unless otherwise directed in writing by Lender, Borrower shall appear in and contest any action or proceeding purporting to affect the security or priority of this Mortgage or the rights or powers of Lender and shall pay all reasonable costs and expenses (including costs of evidence of title, litigation, and reasonable attorneys' fees) in any such action or proceeding in which Lender may appear. 2.13 Actions bv Lender. If Borrower fails to make any payment or to do any act as and in the manner required by this Mortgage or any other Loan Documents, Lender, each in its absolute and sole discretion, may, without obligation so to do, without releasing Borrower from any obligation, and with only such notice to or demand upon Borrower as may be reasonable under the then existing circumstances, but in no 4 GECC Contract No. 33775 GECC Property No. 8004-8377 (Store #12585) Afton, WY 414798.1 000373 event exceeding five days' prior written notice, make or do the same in such manner and to such extent as Lender may deem necessary or appropriate, including: (a) entering upon and taking possession of the Mortgaged Property and otherwise exercising its rights and remedies under this Mortgage and the other Loan Documents; (b) taking such actions and making such additions, alterations, repairs and improvements to the Mortgaged Property as Lender reasonably may consider necessary or appropriate to keep the Mortgaged Property in good condition and repair or otherwise to protect the value or security of any of the Mortgaged Property, including payment of Impositions and insurance premiums; and (c) taking such actions as Lender reasonably may consider necessary or appropriate to protect the priority, validity and enforceability of the lien of this Mortgage on the Mortgaged Property, such as appearing and participating in any action or proceeding affecting or which may affect the security or priority hereof or the rights or powers of Lender or paying, purchasing, contesting or compromising any Lien or alleged Lien, whether superior or junior to this Mortgage. Borrower shall, immediately upon demand therefor by Lender, as the case may be, pay to Lender all costs and expenses reasonably incurred by Lender in connection with the exercise by Lender of the foregoing rights (including costs of evidence of title, court costs, appraisals, surveys, fees of receivers, and reasonable attorneys' fees), provided that if in Lender's reasonable discretion, immediate action is necessary in order to preserve the value of the Mortgaged Property or Lender's Lien thereon or rights thereto, the above descn'bed notice shall not be required. All amounts expended by Lender pursuant to this Section or any other provision of this Mortgage or the other Loan Documents, with interest thereon at the Default Rate trom the date incurred until paid, constitute part of the Obligations and are secured by the Liens securing the Obligations, including the lien of this Mortgage. 2.14 Prohibited Transfers. In order to induce Lender to make the Loan, Borrower agrees that, in the event of any Transfer (as defined below), without the prior written consent of Lender, Lender shall have the absolute right, at its option, without prior demand or notice, to declare all sums secured hereby immediately due and payable. Consent to one Transfer shall not be deemed to be a waiver of the right to require consent to future or successive Transfers. Lender may grant or deny such consent in its sole discretion. In no event will Lender's consent to a Transfer be deemed to release Borrower or Guarantor from any liability with respect to the Obligations without the prior written consent of Lender. As used in this Mortgage, "Transfer' means: (a) Any sale, transfer, conveyance, hypothecation, encumbrance, lease or vesting of the Mortgaged Property to or in any Person, whether voluntary, involuntary, by operation oflaw, or otherwise; (b) The occurrence of any Change of Control; or (c) The execution of any agreement to do, or which would resultin, any of the foregoing, except as expressly peffiÚtted pursuant to the Loan Documents. In connection with any request for consent, Borrower agrees to pay Lender a fee equal to one percent of the then outstanding principal balance of the Note and to reimburse Lender for all out-of-pocket costs and expenses incurred by Lender in connection with such consent, including reasonable attorneys' fees. Any breach of any of the provisions of this Section will, at the election of Lender, constitute an immediate Event of Default without the necessity for any further notice. 2.15 No Liens and Encumbrances. Borrower represents, warrants and covenants that as of the date hereof Borrower is, and as to any portion of the Mortgaged Property acquired hereafter will upon such acquisition be, and shall remain the owner of the entire Mortgaged Property tree and clear of any Liens and Encumbrances. Borrower covenants not to grant or suffer to exist, and Borrower covenants to pay and promptly discharge, at Borrower's sole cost and expense, all Liens and Encumbrances upon the Mortgaged Property. Borrower covenants to notify Lender immediately in writing of any such Lien or Encumbrance. Except as otherwise provided in this Mortgage with respect to Impositions, Borrower may contest in good faith the validity of any involuntary Lien or Encumbrance, provided Borrower shall first deposit with Lender a bond or other security satisfactory to Lender in such amount as Lender shall reasonably require, but not more than 150% of the amount of the claim, and provided further that if Borrower loses such contest, Borrower will thereafter diligently proceed to cause such Lien or Encumbrance to be removed and discharged, at Borrower's sole cost and expense. If Borrower fails to remove or discharge any Lien or Encumbrance, then, in addition to any other right or remedy of Lender , Lender may, after only such notice to Borrower as may be reasonable under the then existing circumstances, but shall not be obligated to, discharge the same, either by paying the amount claimed to be due, or by procuring the discharge of such Lien or Encumbrance by depositing in a court a bond or the amount claimed or otherwise giving security for such claim, or by procuring such discharge in such manner as is or may be prescribed by law. Borrower shall, immediately upon demand therefor by Lender , pay to Lender an amount equal to all costs and expenses incurred by Lender in connection with the exercise by Lender of the foregoing right to discharge any Lien or Encumbrance or claim thereof, together with interest thereon from the date of each such expenditure at the Default Rate. Such costs and expenses shall be secured by the Liens in favor of Lender, including the lien of this Mortgage and are part of the Obligations. "Lien or Encumbrance" and "Liens and Encumbrances" mean, respectively, each and all of the following in respect of the Mortgaged Property: leases, other rights to occupy or use, mortgages, deeds of trust, pledges, security agreements, assignments, assignments as security, conditional sales, title retention arrangements or agreements, conditions, covenants, and restrictions, and other Liens or adverse interests, whether voluntarily or involuntarily created and regardless of whether prior or subordinate to any estate, right, title, or interest granted to Lender in this Mortgage, excluding, however, the Pennitted Exceptions and any easements granted in accordance with Section 2.16. 2.16 GrantinlZ of Easements. Etc. If no Default shall have occurred and be continuing, Borrower may, trom time to time with respect to its interest in the Mortgaged Property and with Lender's prior written consent: (a) grant easements and other rights in the nature of easements; (b) release existing easements or other rights in the nature of easements which are for the benefit of the Mortgaged Property; (c) dedicate or transfer unimproved portions ofthe Mortgaged Property for road, highway or other public purposes; (d) execute petitions to have the Mortgaged Property annexed to any municipal corporation or utility district; and (e) execute and deliver to any person any instrument appropriate to confmn or effect such grants, releases, dedications and transfers. At any time, or trom time to time, without liability therefor and 5 GECC Contract No. 33775 GECC Property No. 8004-8377 (Store #12585) Afton, WY 414798.1 ·000374 without notice, upon written request of Lender and without affecting the personal liability of any Person for payment of the Obligations or the effect of this Mortgage upon the remainder of the Mortgaged Property, Lender may reconvey any part of the Mortgaged Property or join in any of the foregoing actions. 2.17 Lender's Power. Without affecting the liability of any Person liable for the payment or performance of any of the Obligations and without affecting the lien of this Mortgage upon the Mortgaged Property not then or theretofore released as security for the Obligations, Lender may, trom time to time and without notice: (a) release any Person so liable; (b) extend the Obligations; (c) grant other indulgences; (d) release or reconvey, or cause to be released or reconvey ed, at any time at Lender's option any parcel, portion or all of the Mortgaged Property; (e) take or release any other or additional security or any guaranty for any of the Obligations; or (f) make adjustments or other arrangements with debtors in relation thereto. 2.18 Recordinsz: Further Assurances. BOlTower shall, from time to time, take such actions as Lender may request to canse this Mortgage, each supplement and amendment to the Mortgage, and each instrument of further assurance (collectively, the "Recordable Documents") to be filed, registered and recorded as may be required by law to publish notice and maintain the first lien of the Mortgage upon the Mortgaged Property. Borrower shall, trom time to time, perform or cause to be perfonred any other act and shall execute or cause to be executed any and all further instruments reasonably requested by Lender for carrying out the intention of, or facilitating the performance of, this Mortgage. Lender is ilTevocably appointed the agent and attorney-in-fact of BOlTower to comply with the requirements of this Section, which appointment is coupled with an interest and is ilTevocable;provided, however, Lender shall not exercise such power of attorney unless Borrower has first failed to comply with this Section, and provided, further, that this sentence shall not prevent any default in the observance of this Section rrom constituting an Event of Defaull 2.19 Subroszation. To the extent that proceeds of the Note are used to pay any outstanding Lien against the Mortgaged Property, such proceeds shall be deemed to have been advanced by Lender at Borrower's request, and Lender shall be subrogated to any and all rights and Liens held by any owner or holder of such outstanding Liem, ilTespective of whether said Liens are released. ARTICLE 3 SECURITY AGREEMENT; FIXTURE FILING 3.1 Grant ofSecuritv Interest. As further security for the payment and performance of the obligations, Borrower grants to Lender a lien on and security interest in and to all of the Personal Property (collectively, the "UCC Collllleraf'), and this Mortgage constitutes a security agreement with Borrower, as the debtor, and Lender, as the secured party. Lender confirms that, notwithstanding the inclusion of general intangibles as part of the UCC Collateral and the creation, attachment and perfection of Lender's lien on and security interest in general intangibles in accordance with the provision of Section 9-408(a) of the UCC, such creation, attachment and perfection is subject to the limitations imposed by Section 9-408(d) of the UCC which provide that such creation, attachment, and perfection (a) is not enforceable against Franchisor; (b) does not impose a duty or obligation on Franchisor; (c) does not require Franchisor to recognize such lien and security interest, payor render performance to Lender, or accept payment or performance from Lender; (d) does not entitle Lender to use or assign Borrower's rights under the Franchise Agreement; and (e) does not entitle Lender to use, assign, possess, or have access to any trade secrets or confidential information of Franchisor. 3.2 Financinsz Statement. This Mortgage shall be effective as a financing statement filed as a fixture filing with respect to all fIXtures included within the Mortgaged Property and is to be filed for record in the real estate records of each county where any part of the Mortgaged Property (including said fixtures) is situated. The mailing address of Borrower is the address of Borrower set forth in the introductory paragraph in this Mortgage, and the address of Lender from which information concerning the Liens may be obtained is the address of Lender as set forth in the introductory paragraph of this Mortgage. 3.3 Covenants Concerninsz the UCC Collateral. BOlTower will (a) keep all of the tangible UCC Collateral at the Premises; (b) use the UCC Collateral only in its trade or business; (c) maintain all of the tangible UCC Collateral in good operating order and repair, normal wear and tear excepted; (d) use and maintain the UCC Collateral only in compliance with manufacturers recommendations and all Requirements of Law; (e) keep all of the UCC Collateral tree and clear of any and all Liens, including purchase money Liens, other than those in favor of Lender; (f) remain the sole owner of the UCC Collateral and (g) not sell, lease, mortgage, hypothecate, license, grant a Lien in or otherwise transfer or encumber any of the UCC Collateral except for (i) sales of inventory in the ordinary course of business and (ii) so long as no Default has occulTed and is continuing, sales or other dispositions of obsolescent items of equipment consistent with past practices, so long as such items of obsolete equipment are replaced by items of equal or greater value and utility. Except as provided in the preceding sentence, Borrower will not part with possession of any of the UCC Collateral (except to Lender or for maintenance and repair). 3.4 Financinsz Statements and Further Assurances. BOlTower agrees, on request of Lender, to furnish to Lender such further infornmtion, to execute and deliver to Lender such documents and instruments (including UCC financing statements) and to do such other acts and things as Lender may at any time reasonably request relating to the perfection or protection of the Lien in the UCC Collateral created by this Mortgage or for the pUlJlose of carrying out the intent ofthis Mortgage. Without limiting the foregoing, Borrower shall cooperate and do all acts deemed necessary or advisable by Lender to continue in Lender a perfected first Lien in the UCC Collateral and shall obtain and furnish to Lender any subordinations, releases, landlord, lessor, bailee or mortgagee waivers, control agreements, and similar docwnents as may be from time to time requested by, and in form and substance satisfactory to, Lender. Borrower will warrant and defend the UCC Collateral and Lender against all claims by all persons in cOIUlection with the Obligations. 6 GECC Contract No. 33775 GECC Property No. 8004-8377 (Store #12585) Afton, WY 414798.1 000375 3.5 Lender's Authority. Borrower authorizes Lender to file financing statements, continuations, and amendments thereto describing the UCC Collateral and containing any other infonnation required by the applicable UCC, in such fonn and substance as Lender, in its sole discretion, may detennine. Borrower irrevocably grants to Lender the power to sign Borrower's name and generally to act on behalf of Borrower to execute and file applications for title, transfers of title, financing statements, notices of Liens, demands for tenninations or other Liens in any of the UCC Collateral and other documents pertaining to any or all of the UCC Collateral. This power is coupled with an interest and is irrevocable during such time as any of the Obligations are outstanding. Borrower shall, if any certificate of title be required or pennitted by law for any of the UCC Collateral, obtain and promptly deliver to Lender such certificate showing the lien of this Mortgage with respect to the UCC Collateral. Borrower ratifies its prior authorization for Lender to file financing statements and amendments thereto describing the UCC Collateral and containing any otherinfonnation required by the UCC, if filed prior to the date hereof. 3.6 Certain RÜzhts and Remedies with Respect to the UCC Collateral. If an Event of Default shall have occurred and be continuing, Lender, without any other notice to or demand upon Borrower, shall have in any jurisdiction in which enforcement of this Mortgage is sought, in addition to all other rights and remedies, the rights and remedies of a secured party under the UCC and any additional rights and remedies that may be provided to a secured party in any jurisdiction in which any of the UCC Collateral is located, including the right to take possession of the UCC Collateral, and for that purpose Lender may, so far as Borrower can give authority therefor, enter upon the Premises and remove the same therefrom Lender may in its discretion require Borrower to assemble all or any part of the UCC Collateral at such location or locations as Lender may reasonably designate. Unless the UCC Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Lender shall give to Borrower at least 10 calendar days' prior written notice of the time and place of any public sale of UCC Collateral or of the time after which any private sale or any other intended disposition is to be made. Borrower acknowledges that 10 calendar days' prior written notice of such sale or sales shall be reasonable notice. In addition, Borrower waives any and all rights that it may have 10 a judicial hearing in advance of the enforcement of any of Lender's rights and remedies hereWlder, including, without limitation, Lender's right following an Event of Default to take immediate possession of the UCC Collateral and to exercise its rights and remedies with respect thereto. 3.7 Proceeds of Dispositions: Expenses. Borrower shall pay to Lender on demand any and all expenses, including reasonable attorneys' fees and disbursements, incurred or paid by Lender in protecting, preserving or enforcing Lender's rights and remedies under or in respect of any of the Obligations or any of the UCC Collateral. After deducting all of the foregoing expenses, the residue of any proceeds of collection or sale or other disposition of the UCC Collateral shall, to the extent actually received in cash, be applied to the payment of the Obligations in such order or preference as Lender may detennine. Upon the final payment and satisfaction in full of all of the Obligations and after making any payments required by Sections 9-608(a)(IXc) or 9-615(a)(3) of the UCC, any excess shall be returned to Borrower. In the absence of final payment and satisfaction in full of all of the Obligations, Borrower shall remain liable for any deficiency. ARTICLE 4 ASSIGNMENT OF LEASES AND RENTS 4.1 AssÌlmment of Leases and Rents. Borrower assigns, transfers, and conveys to Lender all of Borrower's estate, right, title and interest in and to the Leases and Rents and gives to and confers upon Lender the right, power and authority to collect the Rents; to give receipts, releases and satisfactions; to sue, in the name of Borrower or Lender, for all Rents; and to apply the Rents to the payment of the Obligations in such order as Lender shall detennine. Borrower further irrevocably appoints Lender its true and lawful attorney-in-fact, at the option of Lender at any time and from time to time, to demand, receive and enforce payment, to give receipts, releases and satisfactions, and to sue, in the name of Borrower or Lender, for all Rents. Borrower authorizes and directs the lessees, tenants and occupants to make all payments under the Leases directly to Lender upon written demand by Lender, without further consent of Borrower; provided, however, that Borrower shall have the right to collect such Rents (but not more than one month in advance unless the written approval of Lender is first obtained), and to retain and enjoy same, so long as a Default shall not have occurred. The assignment of the Rents made in this Section is intended to be an absolute, present assignment from Borrower to Lender and not merely the passing of a security interest. Rents collected subsequent to any Event of Default shall be applied at the direction of, and in such order as detennined by, Lender to the costs, if any, of taking possession and control of and managing the Mortgaged Property and collecting such amounts, including to reasonable attorney's fees, receiver's fees, premiums on receiver's bonds, costs of repairs to the Mortgaged Property, premiums on insurance policies, taxes, assessments and other charges on the Mortgaged Property, and the costs of discharging any obligation or liability of Borrower with respect to the Leases and to the sums secured by this Mortgage. 4.2 RilZhts of Lender. Upon the occurrence and during the continuance of an Event of Default, Lender may, at any time without notice (except if required by any Requirement of Law), either in person, by agent or by a court-appointed receiver, regardless of the adequacy of Lender's security, and at Lender's sole election (without any obligation to do so), enter upon and take possession and control of the Mortgaged Property to perfonn all acts necessary and appropriate to operate and maintain the Mortgaged Property, including to, execute, cancel or modify the Leases, make repairs to the Mortgaged Property, execute or tenninate contracts providing for the management or maintenance of the Mortgaged Property, all on such tenns as are deemed best to protect the security of this assignment. Lender or the receiver shall have access to the books and records used in the operation and maintenance of the Mortgaged Property and shall be liable to account only for those Rents actually received. Lender shall not be liable to Borrower, anyone claiming under or through Borrower or anyone having an interest in the Mortgaged Property by reason of anything done or left undone by Lender hereunder, except to the extent of Lender's gross negligence or willful misconduct. Any entering upon and taking possession and control of the Mortgaged Property by Lender or the receiver and any application of Rents as provided herein shall not cure or waive any Default or invalidate any other right or remedy of Lender. 4.3 Borrower's Afflnnative OblilZations. Borrower shall: (a) fulfill, perfonn and observe in all respects each and every condition and covenant of Borrower contained in any Lease; (b) give prompt notice to Lender of any claim or event of default under any Lease given to or 7 GECC ContTact No. 33775 GECC Property No. 8004-8377 (Store #12585) Afton, WY 414798.1 000376 by Borrower, together with a complete copy or statement of any infonnation submitted or referenced in support of such claim or event of default; (c) at the sole cost and expense of Borrower, enforce the perfonnance and observance of each and every covenant and condition of any Lease to be perfonned or observed by any other party thereto, unless such enforcement is waived in writing by Lender; and (d) appear in and defend any action challenging the validity, enforceability or priority of the Lien created hereby or the validity or enforceability of any Lease. 4.4 Nel!:ative Covenants. Borrower shall not, without Lender's consent, in Lender's sole and absolute discretion: (a) enter into any Leases; (b) modifY or amend the tenns of any Lease; (c) grant any consents under any Lease, including any consent to an assignment of any Lease, a mortgaging of the leasehold estate created by any Lease or a subletting by the tenant under any Lease; (d) tenninate, cancel, surrender, or accept the surrender of, any Lease, or waive or release any person from the observance or perfonnance of any obligation to be perfonned under the tenns of any Lease or liability on account of any warranty given thereunder; or (e) assign, transfer, mortgage, pledge or hypothecate any Lease or any interest therein to any party other than Lender. Any lease, modification, amendment, grant, termination, cancellation, surrender, waiver or release in violation of the foregoing provision shall be null and void and of no force and effect. 4.5 No Merl!:er. Unless Lender otherwise consents or elects, Borrower's title to the Mortgaged Property and the leasehold interest in the Mortgaged Property created by any Lease shall not merge, but shall always be kept separate and distinct, notwithstanding the union of such estates in Borrower, Lender or any other person by purchase, operation of law, foreclosure of this Mortgage, sale of the Mortgaged Property pursuant to this Mortgage or otherwise. ARTICLE 5 EVENTS OF DEFAULT AND REMEDIES 5.1 Mortgage. Events of Default. Each Event of Default, as defined in the Loan Agreement, constitutes an "Event of Defaul(' under this 5.2 Remedies. Upon the ocrorrence of an Evett of Default, Lender may, at its option: (a) Acceleration. Declare all or any part of the Obligations immediately due and payable without any presentment,. demand, protest or notice of any kind. (b) RÌlzht of Entrv. Either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court and without regard to the adequacy of its security, enter upon and take possession of the Mortgaged Property, either in its own name or in the name of Lender, and do any acts that it deems necessary or desirable to preserve the value, marketability or rentability of, to increase the income from, or to protect the security of this Mortgage with respect to, the Mortgaged Property and, with or without taking possession of the Mortgaged Property, sue for or otherwise collect the Rents, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection (including reasonable attorneys' fees) to the Obligations, all in such order as Lender may detennine. The entering upon and taking possession of the Mortgaged Property, the collection of such Rents and the application thereof shall not cure or waive any default or notice of default or invalidate any act done in response to such default or pursuant to such notice of default Notwithstanding the continuance in possession of the Mortgaged Property or the collection, receipt and application of Rents, Lender and Lender shall be entitled to. exercise every right and remedy provided for in any of the Loan Doctments or by law upon occurrence of any Event of Default. (c) Foreclosure. Commence an action to foreclose the Lien of this Mortgage as a mortgage in a single parcel or in several parcels, appoint a receiver, or specifically enforce any of the covenants of this Mortgage. (d) Exercise of Power of Sale. Exercise the power of sale contained in this Mortgage and deliver to Lender a written statement of breach, notice of default and election to cause Borrower's interest in the Mortgaged Property to be sold, all in accordance with Applicable Law. (i) If Lender elects to exercise the power of sale contained in this Mortgage, Lender shall notify Lender and shall deposit with Lender copies of this Mortgage and the Note and such receipts and evidence of expenditures made and secured hereby as Lender may require. (ii) Lender shall cause to be recorded, published or delivered such notices of default and notices of sale as may then be required by law or this Mortgage. Thereafter, Lender shaU, sell Borrower's interest in the Mortgaged Property at the time and place of sale fixed by it in such notice of sale, either as a whole, or in separate lots or parcels or items as Lender shall deem expedient, and in such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States payable at the time of sale, or as otherwise may then be required by law. Lender shall deliver to such purchaser or purchasers thereof its good and sufficient deed or deeds conveying the property so sold, without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including, without limitation, Borrower, Lender or Lender, may purchase at such sale and Borrower covenants to warrant and defend the title of such purchaser or purchasers. Lender shall have the right to credit bid at any such sale. 8 GECC Contract No. 33775 GECC Property No. 8004-8377 (Store#I2S8S) Afton, WY 414798.1 000377 (iii) Lender or Lender may sell not only the real property but also the Personal Property and other interests which are a part of the Mortgaged Property, or any part thereof, as a unit and as a part of a single sale, or may sell any part of the Mortgaged Property separately from the remainder of the Mortgaged Property. Neither Lender nor Lender shall be required to take possession of any part of the Mortgaged Property or to have any of the Personal Property present at any sale of the Mortgaged Property. Lender or Lender may appoint or delegate anyone or more persons as agent to perfonn any act or acts necessary or incident to any sale held by Lender or Lender, including the posting of notices and the conduct of sale, but in the name and on behalf of Lender. If any sale hereunder is not completed or is defective in the opinion of Lender or Lender, such sale shall not exhaust the power of sale hereunder, and Lender or Lender shall have the right to cause a subsequent sale or sales to be made hereunder. (iv) As may be permitted by law, Lender shall apply the proceeds of sale (A) first, to payment of all costs, fees and expenses, including attorneys' fees and expenses incurred by the Lender in exercising the power of sale or foreclosing this Mortgage, (B) second, to the payment of the Obligations (including, without limitation, the principal, accrued interest and other sums due and owing under the Note and the amounts due and owing to Lender under this Mortgage) in such manner and order as Lender may elect, and (C) third, the remainder, if any, shall be paid to Borrower, or such other persons as may be legally entitled thereto. (v) Lender may, in the manner provided by law, postpone sale of all or any portion of the Mortgaged Property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement or subsequently noticed sale, and without further notice make such sale at the time fixed by the last postponement, or may, in it discretion, give a new noti:e of sale. (e) Receivers. As a matter of right and without notice to Borrower or anyone claiming under Borrower, and without regard to the then value ofthe Mortgaged Property or the interest of Borrower therein, or the solvency of Borrower or the occurrence of a bankruptcy event (as described in Sections 6.1(j) and (g) of the Loan Agreement), seek the appointment of a receiver for the Mortgaged Property and, to the maximum extent permitted by law, for all other assets of Borrower, all upon ex parte application to any court of the competent jurisdiction. Borrower waives any right to a hearing or notice of hearing prior to the appointment of a receiver and irrevocably consents to such appointment Such receiver shall have all of the usual powers and duties of receivers in like or similar cases and all of the powers and duties of Lender in case of entry as provided above and shall continue as such and exercise all such powers until the later of the date of confumation of sale of the Mortgaged Property or the date of expiration of any redemption period, unless such receivership is sooner tenninated. All expenses incurred by the receiver or its agents, including obligations to repay funds borrowed by the receiver, shall constitute a part of the Obligations. Any revenues collected by the receiver shall be applied first to the expenses of the receivership, including reasonable attorneys' fees incurred by the receiver and Lender, together with interest thereon at the Default Rate from the date incurred until paid, and the balance shall be applied toward the Obligations or in such other manner as the court may direct. (f) Other Ril!hts and Remedies. Exercise all other rights and remedies provided in this Mortgage, in any of the other Loan Documents, or by law. 5.3 Personal ProDertv. It is the express understanding and intent of the parties that as to any personal property interests subject to Article 9 of the Dee, Lender, upon an Event of Default, may proceed under the Dee or may proceed as to both real and personal property interests in accordance with the provisions of this Mortgage and its rights and remedies in respect to real property, as specifically pennitted under Section 9-604 of the DeC. 5.4 Remedies Not Exclusive. Lender and Lender shall be entitled to enforce payment and perfonnance of any Obligations and to exercise all rights and powers under this Mortgage or under any of the other Loan Documents or any laws now or hereafter in force, notwithstanding some or all of the Obligations may now or hereafter be otherwise secured, whether by mortgage, Mortgage, pledge, lien, assignment or otherwise. Neither the acceptance of this Mortgage nor its enforcement, whether by court action or pursuant to the power of sale or other powers contained in this Mortgage, shall prejudice or in any manner affect Lender's right to realize upon or enforce any other security now or hereafter held by Lender, it being agreed that Lender and Lender shall be entitled to enforce this Mortgage and any other security now or hereafter held by Lender in such order and manner as it may in its absolute discretion determine. No remedy conferred in this Mortgage upon or reserved to Lender is intended to be exclusive of any other remedy in this Mortgage or any of the other Loan Documents or now or hereafter existing at law or in equity or by statute. Every power or remedy given by any of the Loan Documents to Lender, or to which Lender may be otherwise entitled, may be exercised, concurrently or independently, from time to time and as often as may be deemed expedient by Lender. Lender may pursue alternative or inconsistent remedies. 5.5 Possession of Mortl!al!ed PrODertv. If, following the sale of the Mortgaged Property pursuant to the exercise of remedies under this Mortgage, Borrower continues to occupy any of the Mortgaged Property so sold, Borrower shall be deemed immediately and automatically to have become the tenant of the purchaser at such sale, which tenancy shall be a tenancy from day to day, tenninable at the will of either tenant or landlord, at a reasonable rental per day based upon the value of the portion of the Mortgaged Property so occupied, such rental to be due and payable daily to the purchaser. An action of unlawful detainer shall lie if the tenant holds over after a demand in writing for possession of such Mortgaged Property. Nothing contained in this Mortgage shall be construed to constitute Lender as a "mortgagee in possession" in the absence of itS taking actual possession of the Mortgaged Property pursuant to the powers granted herein. 9 GECC Contract No. 33775 GECC Property No. 8004-8377 (Store #12585) Afton, WY 414798.1 000378 5.6 Waiver ofRÌI!hts. To the maximum extent pennitted under any Requirement of Law, Borrower knowingly and voluntarily (a) waives the benefit of all laws now or hereafter existing that (i) provide for any appraisement or valuation before sale of any portion of the Mortgaged Property or (ii) in any way extend the time for the enforcement of the collection of the Obligations or creating or extending a period of redemption from any sale made in collecting the Obligations; and (b) agrees that Borrower will not at any time insist upon, plea, claim or take the benefit or advantage of any law now or hereafter in force providing for any homestead exemption, and Borrower, for Borrower, Borrower's representatives, successors and assigns, and for any and all Persons ever claiming any interest in the Mortgaged Property, waives and releases all rights of homestead exemption. If any law referred to in this Section and now in force that would limit the waivers and agreements of Borrower in this Section shall hereafter be repealed or cease to be in force, such law shall not thereafter be deemed to preclude the application of this Section. Borrower expressly waives and relinquishes any and all rights, remedies and defenses that Borrower may have or be able to assert by reason of any Requirement of Law pertaining to the rights, remedies and defenses of sureties. 5.7 Marshalim!. Lender shall not be required to marshal any present or future collateral security (including but not limited to the Mtlrtgaged Property) for, or other assurances of payment of, the Obligations or any of them or to resort to such collateral secwity or other assurances of payment in any particular order, and all of its rights and remedies hereunder and in respect of such collateral security and other assurances of payment shall be cumulative and in addition to all other rights and remedies, however existing or arising. To the extent that it lawfully may, Borrower agrees that it will not invoke any law relating to the marshaling of collateral which might cause delay in or impede the enforcement of Lender's rights and remedies under this Mortgage or under any of the other Loan Documents, and, to the extent that it lawfully may, Borrower irrevocably waives the benefits of all such laws. 5.8 MultiDle Security If (a) the Mortgaged Property shall consist of one or more parcels, whether or not contiguous and whether or not located in the same county, or (b) in addition to this Mortgage, Lender shall now or hereafter hold or be the beneficial)' of one or more additional mortgages, liens, deeds of trust or other security (directly or indirectly) for the Obligations upon other property in the state in which the Premises are located (whether or not such property is owned by Borrower or by others) or (c) both the circumstances described in clauses (a) and (b) shall be true, then to the fullest extent pennitted by law, Lender may, at its election, commence or consolidate in a single trustee's sale or foreclosure action ail of the trustee's sale or foreclosure proceedings against all such collateral secwing the Obligations (including the Mortgaged Property), which action may be brought or consolidated in the courts of, or sale conducted in, any county in which any of such collateral is located. Borrower acknowledges that the right to maintain a consolidated trustee's sale or foreclosure action is a specific inducement to the Lender to enter into certain agreements with Borrower, and for the Lender to enter into the Loan Agreement and the other Loan Documents, and Borrower expressly and irrevocably waives any objections to the commencement or consolidation of the foreclosure proceedings in a single action and any objections to the laying of venue or based on the grounds of/orum non conveniens which it may now or hereafter have. Borrower further agrees that if Lender shall be prosecuting one or more foreclosure or other proceedings against a portion of the Mortgaged Property or against any collateral other than the Mortgaged Property, which collateral directly or indirectly secures the Obligations, or if Lender shall have obtained a judgment of foreclosure and sale or similar judgment against such collateral (or, in the case of a trustee's sale, shall have met the statutoI)' requirements therefor with respect to such collateral), then, whether or not such proceedings are being maintained or judgments were obtained in or outside the state in which the Premises are located, Lender may commence or continue any trustee's sale or foreclosure proceedings and exercise its other remedies granted in this Mortgage against all or any part of the Mortgaged Property and Borrower waives any objections to the commencement or continuation of a foreclosure of this Mortgage or exercise of any other remedies hereunder based on such other proceedings or judgments, and waives any right to seek to dismiss, stay the execution of, remove, transfer or consolidate either any action under this Mortgage or such other proceedings on such basis. Neither the commencement nor continuation of proceedings to sell the Mortgaged Property in a trustee's sale, to foreclose this Mortgage nor the exercise of any other rights hereunder nor the recovel)' of any judgment by Lender nor the occurrence of any sale by the Lender in any such proceedings shall prejudice, limit or preclude Lender's right to commence or continue one or more trustee's sales, foreclosure or other proceedings or obtain a judgment against (or, in the case of a trustee's sale, to meet the statulol)' requirements for, any such sale of) any other collateral (either in or outside the state in which the Premises are located) which directly or indirectly secures the Obligations, and Borrower expressly waives any objections to the commencement of, continuation of, or entry of a judgment in such other sales or proceedings or exercise of any remedies in such sales or proceedings based upon any action or judgment connected to this Mortgage, and Borrower also waives any right to seek to dismiss, stay the execution of, remove, transfer or consolidate either such other sales or proceedings or any sale or action under this Mortgage on such basis. It is expressly understood and agreed that to the fullest extent permitted by applicable Requirements of Law, Lender may, at its election, cause the sale of all collateral which is the subject of a single trustee's sale or foreclosure action at either a single sale or at multiple sales conducted simultaneously and take such other measures as are appropriate in order to effect the agreement of the parties to dispose of and administer all collateral securing the Obligations (directly or indirectly) in the most economical and least time-consuming manner 5.9 Reauest for Notice. Borrower requests a copy of any notice of default and that any notice of sale under this Mortgage be mailed 10 it in accordance with the provisions below for the giving of notices. ARTICLE 6 MISCELLANEOUS 6.1 ADDlicability of General Provisions. All of the provisions of the Article in the Loan Agreement entitled "Definitions" and all provisions of the Article in the Loan Agreement entitled "General Provisions" apply to this Mortgage, the same as if the provisions of such Article were set forth in full in this Mortgage. 10 GECC Contract No. 33775 GECC Property No. 8004-8377 (Store #12585) Afton, WY 414798.1 000379 6.2 Limitation of RiI¡hts of Others. Nothing in this Mortgage is intended or shall be construed to give to any person, other than Borrower, and Lender, any legal or equitable right, reme<;ly or claim under or in respect of this Mortgage or any covenant, condition or provision herein contained. 6.3 Statements bv Borrower. Borrower shall, within 10 days after written request trom Lender, deliver to Lender a written statement stating the unpaid principal of and interest on the Note and any other amounts secured by this Mortgage and stating whether Borrower claims any offset or defense against such principal and interest or such other amounts. 6.4 Reconvevance by Lender. Upon written request to Lender stating that all Obligations have been satisfied in full or otherwise upon the written request of Lender and upon payment by Borrower of all costs, expenses and fees, Lender shall reconvey to Borrower, or to the person or persons legally entitled thereto, without warranty, any portion of the Mortgaged Property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in any reconveyance may be described as "the person or persons legally entitled thereto." Borrower shall also pay Lender a reasonable processing fee in connection with such reconveyance. 6.5 Loan Statement Fees. Borrower shall pay the reasonable amount demanded by Lender, or its authorized loan servicing agent, for any statement regarding the Obligations, provided, however, that such amount may not exceed the maximum amount allowed by law at the time request for the statement is made. 6.6 Notices. All notices, demands, designations, certificates, requests, offers, consents, approvals, appointments and other instruments given pursuant to this Mortgage shall be given in accordance with Section 8.10 of the Loan Agreement, with notices to Lender to be given at the address stated in the first paragraph of this Mortgage or to such other address as Lender may specifY to the other parties in writing.. 6.7 Choice of Law. The creation of this Mortgage and the rights and remedies of Lender with respect to the Mortgaged Property, as provided in this Mortgage and by the laws of the state in which the Premises are located, shall be governed by and construed in accordance with the internal laws of the state in which the Premises are located, without regard to its conflicts of law principles. With respect to other provisions of this Mortgage, this Mortgage shall be governed by and construed in accordance with the internal laws of the State of Arizona, without regard to its conflicts of law principles. Nothing in this Section shall limit or restrict the right of Lender to commence any proceeding in the federal or state courts located in the state in which the Premises are located to the extent Lender deems such proceeding necessary or advisable to exercise remedies available umer the Mortgage or the other Loan Documents. 6.8 Relation to Other Security Documents. The provisions of this Mortgage supplement the provisions of any security agreement from Borrower to Lender which secures the payment or perfonnance of any of the Obligations. Nothing contained in any such agreement shall derogate trom any of the rights or remedies of Borrower hereunder. 6.9 Severabilitv. If any provision of this Mortgage, or any paragraph, sentence, clause, phrase, or word, or their application, in any circumstance, is held invalid, the validity of the remainder ofthis Mortgage shall be construed as if such invalid part were never included. 6.10 Non-Waiver. Unless expressly provided in this Mortgage to the contrary, no consent or waiver, express or implied, by any party, to or of any breach or default by any other party shall be deemed a consent to or waiver of the perfonnance by such defaulting party of any other obligations or the perfonnance by any other party of the same, or of any other, obligations. 6.11 Headings. The headings of sections and paragraphs in this Mortgage are for convenience or reference only and shall not be construed in any way to limit or define the content, scope, or intent of the provisions. 6.12 Grammar. As used in this Mortgage, the singular shall include the plural, and masculine, feminine, and neuter pronouns shall be fully interchangeable, where the context so requires. 6.13 Counteroarts. This Mortgage may be executed in any number of separate counterpans, each of which shall collectively and separately comtitute one Mortgage. 6.14 MortlZalZe in Possession. Nothing contained in this Mortgage shall be construed as constituting Lender a mortgagee in possession in the absence ofthe actual taking of possession of the Mortgaged Property. 6.15 IncoIporation of Loan Allreement: No Conflicts The tenns of the Loan Agreement are incorporated by reference herein as though set forth in full detail. In the event of a conflict between any other tenn or provision of this Mortgage and the Loan Agreement, the terms and provisions of the Loan Agreanent shall control. 6.16 No Oral Modification. This Mortgage may not be amended, supplemented or otherwise modified except in a writing executed by the Borrower and Lender. Any agreement made by Borrower and Lender after the date of this Mortgage relating to this Mortgage shall be superior to the rights of the holder of any intervening or subordinate Lien. 11 GECC Contract No. 33775 GECC Property No. 8004-8377 (Store#I2585) Afton, WY 414798.1 000380 6.17 Last Dollars Secured: Priority. If at any time this Mortgage shall secure less than all of the principal amount of the Obligations, it is expressly agreed that any repayments of the principal amount of the Obligations shall not reduce the amount of the Lien of this Mortgage until the Lien amount shall equal the principal amount of the Obligations outstanding. 6.18 Bindimz Effect This Mortgage is be binding upon and inure to the benefit of Borrower and Lender and their respective successors and permitted assigns, including, any United States trustee, any debtor in possession or any trustee appointed from a private panel. 6.19 Borrower Notice. Borrower hereby requests a copy of any notice of default under this Mortgage, and that any notice of sale under this Mortgage be mailed to it at the address set forth in the first paragraph of this Mortgage. [SIGNATURE PAGE FOLLOWS] 12 GECC Contract No. 33775 GECC Property No. 8004·8377 (Stole #12585) Afton, WY 414798.1 EXECUTED effective as of the date first set forth above. BORROWERS: 0003Bj. HB PROPERTIES, L.c., a Utah limited liability company By~ ~~ Printed Name: ~'" \\._ \t. ~\) ;:- Its: ~_ \-._ Principal Place of Business and Address for Notices For Borrowers: 2280 S. Main Street Salt Lake City, Utah 84115 Attn: William R. Ellis STATE OF U ttLh ) COUNTY OF 5ttL fit..", If .I) ~P.n £ Co f . '3 ~ 20D 7 before me, the bundersigned, a Notary Public in and for said State personally appeared W, ta..", /<, G,U-I nown to me to be the M.¡Py¡. ".,.. of HB PROPERTIES, L.C., a Utah limited liability company, and acknowledged to me that such individual executed the within instrument on behalf of said company. WI1NESS my hand and official seal. (SEAL) RACHEL ANNIS /~M Ahu?·~ No\àry Public in and for said County and State 13 GECC Contract No. 33775 GECC Property No. 8004-8377 (Stoæ #12585) Afton, WY 414798.1 EXHIBJT "A" 000382 That part of Section 25, Township 32 North, Range 119 West of the 6th P.M., Lincoln County, Wyoming described on Exhibit A prepared by Marlowe A. Sche1'bellabeled "Odell and Marjorie Hunsaker for H.B. Properties, L.C. Tract A" dated September 15, 1998. That pal1 of the East One-Half of the Northeast Quarter of the Northeast Quarter (E 1; NE ¥.I NE ~) of Section 25, Township 32 North, Range 119 West, within the Incorporated Limits of the Town of Aiton, Lincoln County, Wyoming, being part of that tract of record in the Office of the Clerk of Lincoln County, in Book 173 of Photostatic Records on Page 14, described as follows: BEGINNING at a spike on the East line of said E ~ NE ~4 NE V4, identical with the Southeast comer of that tract of record in said Office in Book 352 of Photostatic Records on Page 498, North 00°05 '24" East, 346;50, from the Southeast corner of said E Y2 NE y.¡ NE y..; ùlence South 89°40' 13" WesT., 292.50 feet, along the South line of said tract in Book 352, to the Northeast point oftha'[ tract of record in said Office in Book 386 ofPhotO$tatic Records on Page 468; '[hence South 00°05'24" West, 154.03 feet, along the East line of said tract in Book 386, to a . spike on the centerline of Swift Creek Lane; thence South 75°06'37" East, 302.54 feet, along said ccnterline, to a spike on the Ease line of said E 'l2 NE 1Á NE y,¡; thence North 00°05'24" East, 233.46 feet, along said East line, to the Spike ofBeghu1ing.