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HomeMy WebLinkAbout935455 RECORDATION REQUESTED BY: First Interablte Bank ' Jackaon Main Branch 842 Weat Broadway p, O. Box 11095 Jackaon, WY 83002·1095 RECEIVED 1217/2007 at 3:34 PM RECEIVING # 935455 BOOK: 680 PAGE: 661 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY WHEN RECORDED MAIL TO: First Interablte Bank Jackaon Main Branch 842 Weat Broadway p, 0, Box 11095 Jackaon, WY 83002-1095 000661 SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY UFhI I1r6..sIaIe Bark CONSTRUCTION MORTGAGE MAXIMUM LIEN, The lien of this Mortgage shall not exceed at anyone time $70,000.00. THIS MORTGAGE dated December 5, 2007, Is made and executed between Tony V. Scaffide and Shay Scafflde, not personally but as Trustees on behalf of Scaffide Trust II dated March 10, 2003, as amended March 30, 2006, whose address Is 803 Black Mountain Road, Alpine, WY 83128 (referred to below as "Grantor") and First Interstate Bank, whose address Is 842 West Broadway, P. O. Box 11095, Jackson, WY 83002·1095 (referred to below as "Lender"). GRANT OF MORTGAGE. For valuable consideration, Grantor mortgages and conveys to Lander all of Grantor's right, title, and Interest In and to the following described real property, together with all axlstlng or subsequently erected or affixed buildings, Improvements and fixtures; all easements, rights of wey, and appurtenancas; all weter, water rights, watercoursas 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 IImlbltlon all mlnarals, 011, gas, geothermal and similar matters, (the "Real Property") located In Uncoln County, State of Wyoming: Lot 6 of Packsaddle Subdivision 3rd Filing, Lincoln County, Wyoming as described on the official plat therof This Mortgage Is given to secure the borrowings of Tony Scafflde and Shay Scafflde as evidenced by that certain PromIssorY Note and Disclosure of even Clate and nke amount. This Mortgage will remain In effect for the term of said Promissory Note Including all extensions or renewals thereof. The Real Property or Its address Is commonly known as 803 Black Mountain Road, Alpine, WY 83128. The Real Property tax Identification number Is 36190910001100. Grantor presently assigns to Lender all of Grantor's right, title, and Interest In and to all prasant and future laases of tha Proparty and all Rents from the Property. In addition, Grantor grants to Lender a Uniform Commercial Code security Interest In the Parsonal Property and Rents, FUTURE ADVANCES. In addition to the Note, this Mortgage secures all future advances made by Lender to Borrower whether or not the advances are mada pursuant to a commitment. Specifically, without limitation, this Mortgage secures, in addition to the amounts specified In the Note, all future amounts Lender In Its discretion may loan to Borrower, together with all Interest thereon, 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, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS ALSO GIVEN TO SECURE ANY AND ALL OF BORROWER'S OBUGATlONS UNDER THAT CERTAIN CONSTRUCTION LOAN AGREEMENT BETWEEN BORROWER AND LENDER OF EVEN DATE HEREWITH, ANY EVENT OF DEFAULT UNDER THE CONSTRUCTION LOAN AGREEMENT, OR ANY OF THE RELATED DOCUMENTS REFERRED TO THEREIN, SHALL ALSO BE AN EVENT OF DEFAULT UNDER THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: GRANTOR'S WAIVERS, Grantor waives all rights or defenses arising by reason of any ·one action· or "anti-deficiency· law, or any other law which may prevent Lender from bringing any action against Grantor, Including a claim for deficiency to the extent Lender Is otherwise entitled to a claim for deficiency, before or aner Lender's commancement or completion of any foreclosure action, either -judicially or by exercise of a power of sale, GRANTOR'S REPRESENTATIONS AND WARRANTIES. Grantor warrants that: (a) this Mortgage Is executed at Borrower's request and not at the request of Lender; (b) Grantor has the full power, right, and authority to enter Into this Mortgage and to hypothecate the Property; (c) the provlalona of this Mortgage do not conflict with, or result In a default under any agreement or other Instrument binding upon Grantor and do not result In a violation of any law, regulation, court decree or older applicable to Grantor; (d) Grantor has established adequate maans of obtaining from Borrower on a continuing basis Information about Borrower's financial condition; and (e) Lender has made no representation to Grantor about Borrower (Including without limitation the creditworthiness of Borrower), PAYMENT AND PERFORMANCE, Except as otherwise provided In this Mortgage, Borrower shall pay to Lender all Indebtedness secured by this Mortgage as It becomes due, and Borrower and Grantor shall strictly perform ell Borrower's and Grantor's obligations under this Mortgage, CONSTRUCTION MORTGAGE. This Mortgage Is a ·constructlon mortgage· for tha purposes of Sections 9-334 and 2A-309 of the Uniform Commercial Code, as those sections have bean adopted by the State of Wyoming, POSSESSION AND MAINTENANCE OF THE PROPERTY. Borrower and Grantor agrae that Borrower's and Grantor's possession and use of the Property ahall be govemed by the following provisions: Possession and Use. Until the occurrence of an Event of Default, Grantor may (1) remain In possession and control of the Properly; (2) use, operate or manage the Property; and (3) collect the Rents from the Properly, Duty to Maintain, Grantor shall maintain the Property In good condition and promptly perform all repairs, replacements, and maintenance necessary to presarve Its value, Compliance With Environmental Laws. Grantor represents and .warrants to Lender that: (1) During the period of Grantor's ownership of the Property, there has been no use, generation. manufacture, storage, treatment, disposal, release or threatened release of any Hazaldous Substance by any person on, under, about or from the Property; (2) Grantor has no knowladge of, or reason to believe that there has baen, except as previously disclosed to and acknowledged by Lender In writing, (a) any breach or violation of any Environmental Laws, (b) any use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the Property by any prior owners or occupants of the Property, or (c) any actual or threatened litigation or claims of any kind by any person relating to such matters; and (3) Except as pravlously disclosed to and acknowledged by Lender In writing, (a) neither Grantor nor any tenant, contractor, agant or other authorized user of the Property shall use, generate, manufacture, 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 fedaral, 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 pari of Lender to Grantor or to any other MORTGAGE (Continued) 000662 Page 2 person. The representations and warranties contained herein are based on Grantor's due diligence In Investigating the Property for Hazardous Substances. Grantor hereby (1) releases and waives any future claims against lender for Indemnity or contribution In the event Grantor becomes liable for cleanup or other costs under any such laws; and (2) agrees to Indemnify, defend, and hold harmless lender against any and all claims, losses, lIabllltlas, damages, penalties, and expenses which lendar may directly or IndlrecUy 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 heve been known to Grantor, The provisions of this section of the Mortgage, Including the obligation to Indemnify end defend, shall survive the payment of the Indebtedness and the satlsfectlon 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. Grantor shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any stripping of or waste on or to the Property or any portion of the Property, Without limiting the generality of the foregoing, Grantor will not remove. or grant to any other party the right to remove, any timber. minerals (Including 011 and gas), coal, clay, scoria, soli, gravel or rock products without Lender's prior written consent. Removel of Improvements, Grentor 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 laast equal value, Lender's Right to Enter. lander and lender's agents and representatlvas may enter upon the Real Property at ell reasonable times to attend to Lender's Interests and to Inspect the Real Property for purposes of Grantor's compliance with the terms and conditions of this Mortgage, Compliance with Governmental Requirements. Grantor shall promptly comply with all laws, ordinances, and regulations, now or hereafter In effect, of all governmental authorities applicable to the use or occupancy of the Property, Grantor may contest In good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, Including appropriate appeals, so long as Granto, has notified lender In writing prior to doing so and so long as, in Lender's sole opinion, Lender's Interests In the Property ere not Jeopardized, lender may require Grantor to post adequata security or a surety bond, reasonably satlafactory to lander, to protect lender's Interest. Duty to Protect. Grantor agrees nalther to abendon or leave unattended the Property. Grantor shall do all other acts, In addition to those acts set forth above In this section, which from the character and use of the Property are reasonably necessary to protect and preserve the Property, CONSTRUCTION LOAN, If some or all of the proceeds of the loan creating the Indebtedness are to be used to construct or complete construction of any Improvements on the Property, the Improvements shall be ,completed no later than the maturity date of the Note (or such earlier date as lender may reasonably establish) and Grantor shall pay In full all costs and expenses In connection with the work, lender will disburse loan proceeds under such terms and conditions as Lender may deem reasonably necessary to Insure thet the Interest created by this Mortgage shall have priority over all possible liens. Including those of material suppliers and workmen. lender may require, among other things, that disbursement requests be supported by receipted bills, expense affidavits, waivers of liens, construction progress reports, and such other documentation as Lender may reasonably request. DUE ON SALE - CONSENT BY LENDER. lender may, at lender's option, declare Immediately due 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 convayance of Real Property or eny right, title or Interest In the Raal Property; whether legal. beneficial or equitable; whether voluntary or Involuntary; whether by outright sale, deed, Installment sale contract, land contract, contract for deed, leasehold Interest with a term greater than three (3) years, lease-opUon contract, or by sale, assignment, or transfer of any beneflclallnterest In or to any land trust holding title to the Real Property, or by any other method of conveyance of an Interest In the Real Property, However, this option shall not be exercised by Lender If such exercise Is prohibited by federal law or by Wyoming law. TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property are part of this Mortgage: PaymenL Grantor shall pay when due (and In all events prior to delinquency) all taxes, payroll taxes, special taxes, assessments, water charges and sewer service charges levied against or on account of the Property, and shall pay when due all claims for work done on or for services rendered or material furnished to the Property, Grantor shall maintain the Property free of any liens having priority over or equal to the Interest of lender under this Mortgage, except for those liens speclflcally agreed to In writing by lender, and except for the lien of taxes and assessments not due as further specified In the Right to Contest paragraph, Right to Contest. Grantor may withhold payment of any tax, assessment, or claim In connection with a good faith dispute over the obligation to pay, so long as lender's Interest In the Property Is not Jeopardized, If a lien arises or Is flied as a result of nonpayment, Grantor shall within fifteen (15) days aftar the lien arises or, If a lien Is flied, within flfteen (15) days after Grantor has notice of the flllng, secure the discharge of the lien, or If requested by lender, deposit with lender cesh or a sufficient corporate surety bond or other security satisfactory to lender In an amount sufficient to discharge the lien plus any costs and reasonable ettorneys' 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 furnlshad In the contest proceedings, Evidence of Payment. Grantor shall upon demand furnish to lender satisfactory evidence of payment of the taxes or assessments and shall authorize the appropriate governmental official to deliver to lender at any time a written statement of the taxes and assessments against the Property, Notice of Construction. Grantor shall notify lender at least fifteen (15) days before any work Is commenced, any services are furnished, or any materials are supplied to the Property, If any mechanic's lien, materialmen's lien, or other lien could be asserted on account of the wo,k, services, or materials and the cost exceeds $3,000,00, 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 following provisions relating to Insuring the Property are a part of this Mortgage: Maintenance of Insurance. Grantor shall procure and maintain policies of flre Insurance with standard extended coverage endorsements on a replacement basis for the full Insurable value covering all Improvements on the Real Property In an amount sufficient to avoid appllcetlon of any coinsurance clause, and with a standard r:nortgagee clause In favor of lender, Policies shall be written by such Insu,ance companies and In such form as may be reasonably acceptable to lender, Grantor shall deliver to lender certlflcates of coveraga from each Insurer containing a stipulation that coverage will not be cancelled or diminished without a minimum of ten (10) days' prior written notice to lender and not containing any disclaimer of the Insurer's liability for failure to give such notice, Each Insurance policy also shall Include an endorsement providing that coverage in 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 flood hazard area, Grantor agrees to obtain and maintain Federal Flood Insurance, If avaliable, 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 loen, up to the maximum policy limits set under the National Flood Insurance Program, or as otherwise required by lender, and to maintain such Insurance for the term of the loan, Application of Proceeds, Grantor shall promptly notify lender of any loss or damage to the Property If the estimated cost of repair or replacement exceeds $3,000,00. lender may make proof of loss If Grantor fails to do so within flfteen (15) days of the casualty, Whether or not lender's security Is Impaired, lender may, at lender's election, receive and retain the proceeds of any Insurance and apply the proceeds to the reduction of the Indebtedness, payment of any lien affecting the Property, or the restoration and repair of the Property, If lender elects to apply the proceeds to restoration and repair, Grantor shall repair or replace the damaged or destroyed Improvements in a manner satisfactory to lender, Lender shall, upon satisfactory proof of such expenditure, payor reimburse Grantor from the proceeds for the reasonable cost of repair or restoration If Grantor Is not In default under this Mortgage. Any proceeds which have not been disbursed within 180 days after their receipt and which lender, has not committed to the repair or restoration of the Property shall be used flrst to pay any amount owing to lender under this Mortgage, then to pay accrued Interest, and the remainder, If any, shall be applied to the principal balance of the Indebtedness. If lender holds any proceeds after payment In full of the Indebtedness, such proceeds shall be paid to Grantor as Grantor's Interests may appear, lENDER'S EXPENDITURES. If Grantor falls (A) to keep the Property free of all taxes, liens, security Interests, encumbrances, and other claims, (B) to provtde any required Insurance on the Property, or (C) to make repairs to the Property then Lender may do so, If any action or proceeding Is commenced that would materially affect lender's Interests In the Property, then lender on Grentor's behalf may, but Is not required to, take any action that lender believes to be appropriate to protect lender's interests, All expenses Incurred or paid by lender for such purposes will then bear Interest at the rate charged under the Note from the date Incurred or paid by Lender to the date of repayment by MORTGAGE (Continued) 000663 Page 3 Grantor. All such axpenses will become a part of the Indebtedness and, at lender'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 paymants to become due during either (1) the term of any appllcabla Insurance polley; or (2) the remaining term of the Note; or (C) be treated as a balloon payment which will be due and payable at the Note's maturity. The Mortgage also will secure payment of these amounts, The rights provided for In this paragraph shall be In addition to any other rights or any remedlas to which lender may be entltlad on account of any default. Any such action by lander shall not be construed as curing the default so as to bar lender from any remedy that It otherwise would have had, WARRANTY: DEFENSE OF TITLE, The following provisions relating to ownership of the Property are a part of this Mortgage: Title. Grantor warrants that: (a) Grentor holds good and marketable title of record to the Property In fee simple, free and clear of all liens and encumbrances othar than those set forth In the Real Property description or In any title Insurance policy, title report, or final title opinion Issued In favor of, and accepted by, lender In connection with this Mortgage, and (b) Grantor has tha full right, power, and authority to execute and deliver this Mortgage to lender, Defen.e 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, Grentor shall defend the action at Granto~s expense, Grantor may be the nominal party In .uch 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 govemmental authorities, Survival of Promise.. All promises, agreements, and statements Grantor has made In this Mortgage shall survive the execution and delivery of this Mortgage, shall be continuing In nature and shall remain In full force and effect until such time as Borrowe~s Indebtedness Is paid In full, CONDEMNATION, The following provisions relating to condemnation proceedings 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 such staps 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 parllclpate In the proceeding and to be represented In the proceeding by counsel of Its own choice, 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 partlctpatlon. Application of Net Proceed., If all or any part of the Property Is condemned by eminent domain proceedings or by any proceadlng 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 resto,atlon of the Property, The net proceeds of the award shall mean the award after payment of all reasonable costs, expenses, and attorneys' fees Incurred by lender In connection with the condemnation, IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating to governmental taxes, fees and cherges are a part of this Mortgege: Current Taxe., Fee. and Charge.. Upon request by lender, Grantor shall execute such documents In addition to this Mortgage and teke whatever other action Is requested by lender to perfect and continue lende~s lien on the Real Property. Grantor shall reimburse lender for all taxes, as described balow, together with all expanses Incurred In recording, perfecting or continuing this Mortgage, Including without limitation all taxes, fees, documentary stamps, and other charges for recording or registering this Mortgage, Taxes, The following shall constitute taxes to which this section applies: (1) a specific tax upon this type of Mortgage or upon all or any part of the Indebtedness secured by this Mortgage; (2) a specific tax on Borrower which Borrower Is authorized or required to deduct from payments on the Indebtedness secured by this type of Mortgage; (3) a tax on this type of Mortgage chargeable against the lender or the holder of the Note; and (4) a specific tax on all or any portion of the Indebtedness or on payments of principal and Interest made by Borrower. Subsequent Taxes. If any tax to which this section applies Is enacted subsequent to the date of this Mortgage, this event shall have the same effect as an Event of Default, and lender may exercise any or all of Its available remedies for an Event of Default as provided below unless Grantor either (1) pays the tax before It becomes 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 part of this Mortgage: Security Agreement. This Instrument shall constitute a Security Agreement to the extent any of the Property constitutes fixtures, and lender shall have all of the rights of a secured party under the Uniform Commercial Code as amended from time to time, Security Interest. Upon request by lender, Grantor shall take whatever action Is requested by lender to perfect and continue lende~s security Interest In the Personal Property, In addition to recording this Mortgage in the real property records, lender may, et any time and without further authorization from Grantor, file executed counterperts, copies or reproductions of this Mortgage as a financing statement. Grantor shall reimburse lender for all expenses Incurred In perfecting or continuing this security Interest. Upon default, Grantor shall not remove, sever or detach the Personal Property from the Property, Upon defeult, Grantor shall assemble any Personal Property not efflxed to the Property In a manner end at a place reasonably convenient to Grantor and lender end 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 add,esses of Grantor (debtor) and lender (secured party) from which Information concemlng the security Interest granted by this Mortgage may be obtelned (each as required by the Uniform Commercial Code) ere as stated on the first pege of this Mortgage. FURTHER ASSURANCES; ATTORNEY-IN·FACT, The following provisions relating to further assurances end attorney-In-fact are a part of this Mortgage: Further Assurances, At any time, and from time to time, upon ,equest of lender, Grantor will make, execute end deliver, or will cause to be made, executed or delivered, to lender or to lende~s designee, and when requested by lender, cause to be flied, recorded, refiled, or rerecorded, as the case may be, at such times and In such offices and places as lendar may deem appropriate, any and all such mortgages, deeds of trust, security deeds, security agreements, financing statements, continuation statements, Instruments of further assurance, certificates, and othar documents as may, In the sole opinion of lender, be necessary or desirable In order to effectuate, complete, perfect, continue, or preserve (1) Borrowe~s and Granto~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 hereafter acquired by Grantor. Unless prohibited by law or lender agrees to the contrary In writing, Grantor shall reimburse lender for all costs and expensas Incurred In connection with the matters referred to In this paragraph, Attorney-In-Fact. If Grantor falls to do any of the things referred to In the preceding paragraph, lender may do so for and In the name of Grantor and at Grantci~s expense, For such purposes, Grantor hereby Irrevocably appoints lender as Granto~s attorney-In-fact for the purpose of makJng, executing, delivering, filing, recording, and doing all other things as may be necessary or deslrabla, In lende~s sola opinion, to accomplish the matters referred to In the preceding paragraph, FUll PERFORMANCE, If Borrower and Grantor pay all the Indebtedness, Including without limitation all future advances, when due, and Grantor otherwise performs all the obligations Imposed upon Grantor under this Mortgage, lender shall execute and deliver to Grantor a suitable satisfaction of this Mortgage and suitable statements of termination of any financing statement on file evidencing lende~s security Interest In the Rents and the Personal Property. Grantor will pay, If permitted by applicable law, any reasonable termination fee as determined by lender from time to time, EVENTS OF DEFAULT. At lende~s option, Grantor will be In default under this Mortgage If any of the following happen: Payment Default. Borrower 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 paymant for taxes or Insurance, or any other payment necessary to prevent filing of or to effect discharge of any lien, Break Other Promises, Borrower or Grantor breaks any promise made to lender or falls to perform promptly at the time and strictly In the MORTGAGE (Continued) 000664 Page 4 manner provided In this Mortgage or In any agreement related to this Mortgage, Default In Favor of Third Partlea. Should Borrower or any Grantor default under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, In favor of any other creditor or person that may materially affect any of Borrowe~s or any Granto~s property or Borrowe~s eblllty to repay the Indebtedness or Borrowe~s or Granto~s ability to perfonn their respective obligations under this Mortgage or any related document. Fal.e Statements. Any representation or statement made or furnished to Lender by Borrower or Grantor 0' on Borrower's or Granto~s behalf under this Mortgage or the Related Documents Is false or misleading In any material respect, either now or at the time made or furnished. Defective Collaterallzatlon. This Mortgage or any of the Related Documents ceases to be In full force and effect (Including failure of any collateral document to create a valid and perfected security Interest or lien) at any time and for any raason, Insolvency. The dissolution or tennlnatlon of the Trust, the Insolvency of Borrower or Grantor, the appointment of a receiver for any part of Borrower's or Grantor's property, any esslgnment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under eny bankruptcy or Insolvency lews by or against Borrower or Grantor. Teklng of the Property, Any creditor or governmental agency tries to take any of the Property or any other of Borrower's or Grantor's property In which Lender has a lien, This Includes taking of, garnishing of or lavylng on Borrower's or Granto~s accounts with Lender. However, If Borrower or Grantor disputes In good faith whether the claim on which the taking of the Property Is besed Is valid or reasonable, and If Borrower or Grantor gives Lender written notice of the claim and furnishes Lender with monies or a surety bond setisfactory to Lender to satisfy the claim, then this defeult provision will not apply, Breach of Other Agreement. Any breach by Borrowar or Grantor under the tenns of any other agreement between Borrower or Grantor and Lender that Is not remedied within any grace period provided therein, Including without limitation any agreement concerning any Indebtedness or other obligation of Borrower or Grantor to Lender, whether existing now or later. Events Affecting Guerantor, Any of the preceding events occurs with respect to any guarantor, endorser, surety, or accommodation party of any of the Indebtednass or any guarantor, endorser, suraty, or accommodation party dies or becomes Incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness, Insecurity, Lander In good faith believes Itself Insecure, 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 remadles provided by law: Aceslerate Indabtedness, Lander shall have the right at Its option without notice to Borrower or Grantor to declare the antire Indebtedness Immediately due and payable, Including any prepayment penalty that Borrower would be required to pay, UCC Remedies, With respect to all or any part of the Personal Property, Lender shall hava all the rights and remedies of s secured party under the Unlfonn Commercial Coda. Collect Rents. Lender shall have the right, without notice to Borrower or Grantor, to take possession of the Property, Including during the pendency of foreclosure, whether Judicial or non-judlclal, and collect the Rents, Including amounts past due and unpaid, and apply the nat proceeds, over and above Lende~s costs, against the Indabtedness. In furtherance of this right, Lender may requlra any tenant or other user of the Property to make payments of rent or use fees directly to Lender, If the Rents are collected by Lender, then Grantor Irrevocably designates Lander as Grantor's attorney-In-fact to endorse Instruments recelvad 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 Lende~s demand shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the demand existed, Lander may exarclsa 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 frorn the Property and apply tha proceeds, over and above the cost of the receivership, against the Indebtedness, The receiver may serve without bond If pennltted by law, Lender's right to tha appointment of a receiver shall exist whethar or not the apparent value of tha Property exceeds the Indebtedness by a substantial amount. Employment by Lender shall not disqualify a person from serving as a receiver. Judicial Foreclosure. Lender may obtain a Judicial decree foreclosing Grentor's Interest In all or any part of the Property, Nonjudicial Sale. Lender may foreclose Grantor's Interest In all or In any part of the Property by non-Judicial sale, and specifically by "power of sale" or "advertisement and sale" foreclosure as provided by statute, Deficiency Judgment, If pennltted by applicable law, Lender may obtain a Judgment for any daflclency 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 above or Lender otherwise becomes antltled to possession of the Property upon default of Borrower or Grantor, Grantor shall become e tenant at sufferance of Lender or the purchaser of the Proparty and shall, at Lender's option, either (1) pay a reesonable rental for the use of the Property, or (2) vacete the Property Imrnedlately 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 pennltted by applicable law, Borrower and Grantor hereby waive any and all right to heve the Property marshalled. In exercising Its rights and remedies, Lender shall be free to sell ell or any part of the Property together or separately, In one sale or by separate sales, Lender shall be entitled to bid at any public sale on all or any portion of tha Property. Notice of Sale, Lender will give Grantor reasonable notice of the time and place of any public sale of the Personal Property or of the time after which any private sale or other Intended disposition of the Personal Property Is to be made. Reasonable notice shall mean notice given at least ten (10) days before the time of the sale or disposition. Any sale of the Personal Property may be made In conjunction with any sale of the Real Property, Election of Remedies. All of Lende~s rights and remedies will be cumulative and may be exercised alona or together, An election by Lender to choose anyone remedy will not bar Lender frorn using eny other remedy, If Lender decides to spend money or to perfonn any of Grantor's obligations under this Mortgage, after Grantor's failure to do so, that decision by Lender will not affect Lender's right to declere Grantor In default and to exercise Lender's remedies, Attorney.' Fees; Expenses. If Landar 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 end 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 Lende~s opinion ere necessary at eny time for the protection of Its Interest or the enforcement of Its rights shall become e part of the Indebtedness payeble on demand and shall bear Interest at the Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph Include, without limitation, however subject to any limits under applicable law, Lender's reasonable attorneys' fees and Lende~s legal expenses whether or not there Is a lawsuit, Including reasonable attorneys' fees and expenses for bankruptcy proceedings (Including efforts to modify or vacate eny automatic stay or Injunction), appeals, and any antlclpeted post-judgment collection services, the cost of searching records, obtaining title reports (Including foreclosure reports), surveyors' reports, and appraisal fees end title Insurance, to the extent pennltted 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 Mortgege, Including without limitation any notice of default and any notica of sale shall be given In writing, and shall be effective when actually delivered, when actually received by telefacslmlle (unless otherwise required by law), when deposited with a nationally recognized overnight cour1er, or, If mailed. when deposKed In the United States mall, as first cless, certified or registered mall 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 prlor1ty over this Mortgage shall be sent to Lender's address, as shown near the beginning of this Mortgage. Any person may change his or her address for notices under this Mortgage by giving fonnal written notice to the other person or persons, specifying that the purpose of the notice Is to change the person's address, For notice purposes, Grentor agrees to keep Lender Infonned at all times of Grantor's current address, Unless otherwise provided or required by law, If there Is more than one Grantor, any notice given by Lender to any Grantor Is deemed to be notice given to all Grantors, It will be Grantor's responsibility to tell the others of the notice frorn Lender, MISCELLANEOUS PROVISIONS, The following miscellaneous provisions are a part of this Mortgage: Amendments. What Is written In this Mortgage and In the Related Documents Is Grantor's entire agreement with lender concerning the MORTGAGE (Continued) 000665 Page 5 matters covered by this Mortgage, To be effective, any change or amendment to this Mortgage must be In writing and must be signed by whoever will be bound or obligated by the change or amendment. Caption Headings. Caption headings In this Mortgage are for convenience purposes only and are not to be used to Interpret or define the provisions of this Mortgage. Governing Law. This Mortgage will be governed by federal lew eppllcable to Lender end, to the extent not preempted by federal lew, the lawe 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, Joint and Several Liability, All obligations of Borrower end Grantor under this Mortgage shall be joint and several, and all references to Grantor shall mean each and every Grantor, and all references to Borrower shall mean each and every Borrower, This means that each Grantor signing below Is responsible for all obligations In this Mortgage. No Waiver by Lender. Grantor understands Lender will not give up any of Lende~s rights under this Mortgage unless Lander does so In writing. The fact that Lender delays or omits to exercise any right will not mean that Lander has glvan up that right. If Lender does agree In writing to give up one of Lende~s rights, that does not mean Grantor will not have to comply with the other provisions of this Mortgage, Grantor also understands that If Lender does consent to a request, that doas not mean that Grantor will not have to get Lende~s consent again If the sttuatlon happens again, Grantor further understands that just because Lender consents to one or more of Granto~s requests, that does not mean Lender will be required to consent to any of Granto~s future requests. Grantor waives presentment, demand for payment, protest, and notice of dishonor. Grantor waives all rights of exemption from execution or similar law In the Property, and Grantor agrees that the rights of Lender In the Property under this Mortgage are prior to Granto~s rights while this Mortgage remains In effect. Severability, If a court finds that any provision of this Mortgage Is not valid or should not be enforced, that fact by Itself will not maan that the rest of this Mortgage will not be valid or enforced, Therefore, a court will enforce the rest of the provisions of this Mortgage even If a provision of this Mortgage may be found to be Invalid or unenforceable, Merger. There shell be no marger of the Interest or estate created by this Mortgage with any other Interest or estate In the Property at any time held by or for the benefit of Lender In any capacity, without the written consent of Lender. Successors snd Assigns. Subject to any limitations stated In this Mortgage on transfer of Granto~s Interest, this Mortgage shall be binding upon and Inure to the benefit of the parties, their successors end assigns, If ownership of the Property becomes vested In a person other than Grentor, Lender, without notice to Grantor, may deal with Granto~s successors with reference to this Mortgage and the Indebtedness by way of forbearance or extension without releasing Grantor from the obligations of this Mortgage or liability under the Indebtedness. Time Is of the Essence. Time Is of the essence In the performance of this Mortgage. Welver of Homesteed Exemption, Grentor hereby releases and waives all rights and benefits of the homestead exemption laws of the State of Wyoming as to all Indebtedness secured by this Mortgage, DEFINITIONS, The following words shall have the following meanings when usad In this Mortgage: Borrower, Tha word "Borrower" means Tony Scaffide and Shay Scaffide and Includes all co-signers and co-makers signing the Note and all their successors end as~lgns. Environmental Laws. The words "Environmental Laws" maan any and all state, federal and local statutes, regulations and ordinances relating to the protection of human health or the environment, Including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S,C, Section 9601, et seq, ("CERCLA"), the Superfund Amendments end Reauthorizetlon Act of 1986, Pub, L. No, 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S,C. Section 1801, et seq" the Resource Conservation and Recovery Act, 42 U,S,C, Section 6901, et seq" or other applicable state or federal laws, rules, or regulations adopted pursuant thereto, Event of Default. The words "Event of Default" mean any of the events of default set forth In this Mortgage In the events of default section of this Mortgage, Grantor. The word "Grantor" means Scaffide Trust II dated March 10, 2003, as amended March 30, 2006, Guaranty, The word "Gueranty" means the guaranty from guarantor, endorser, surety, or eccommodetion party to Lender, Including without limitation a guaranty of all or part of the Note, Hazardous Substances, The words "Hazardous Substances" mean materials that, because of their quantity. concentretlon or physical, chemical or Infectious cheracterlstlcs, may cauSe or pose e present or potentlel hazard to human heatth or the environment when Improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handled, The words 'Hazardous Substances" are used In their very broadest sense and Include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed under the Environmental Laws, The term "Hazardous Substances" also Includes, without limitation, petroleum and petroleum by-products or any fraction thereof and asbestos, Improvements. The word "Improvements" means all axlsting and future Improvements, buildings, structures, mobile homes affixed on the Real Property, facilities, additions, replacements and other construction on the Real Property. Indebtedness. The word "Indebtedness" means all principal. Interest, and other emounts, costs and expenses payable under the Note or Related Documents, together with all renewals of, extensions of, modifications of, consolidations of and substitutions for the Note or Related Documents and any amounts expended or edvanced by Lender to discharge Granto~s obligations or expenses Incurred by Lender to enforce Granto~s obligations under this Mortgage, together with Interest on such amounts as provided In this Mortgage, Specifically, without limitation, Indebtednass Includes the future advances set forth In the Future Advances provision of this Mortgage, together with all Interest thereon, Lender, The word "Lender" means First Interstate Bank, Its successors and assigns, The words "successors or assigns" mean any person or company that acquires any Interest In the Note, Mortgage, The word 'Mortgage' means this Mortgage between Grantor and Lendar, Note. The word 'Note" means the promissory note dated December 5, 2007, In the original principal amount of $70,000.00 from Borrower to Lender, together with all renewals of, extensions of, modifications of, rafinanclngs of, consolidations of, and substitutions for the promissory note or agreemant. The maturity date of this Mortgaga Is January 15, 2008. 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 ell 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, Reel Property. The words 'Real Property" mean tha real property, Interests and rights, as further described In this Mortgage. Releted Documents, The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental agreements, guerantles, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other Instruments, egreements and documents, whether now or hereafter existing, executed In connection with the Indebtedness. Rents. The word "Rents' means all present and future renls. revenues, Income, Issues, royalties. profits, and other benefits derived from the Property. I I MORTGAGE (ContlnuQd) 000666 Page 6 GRANTOR: GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND GRANTOR AGREES TO ITS TERMS. /;.:7 By: TRUST ACKNOWLEDGMENT j~4~~ STATE OF 1 i ..fA/v ) """"'" ... . .', - ¡ , ;" : .. ~ On this ¿:/?,V, n:..cA day of '~!"1'1'7/t¿.-:" / , 20 ;2.L, bafora me, the undersigned Notary Public, personally appeared Tony V. Scaffide, Trustee of Scaffi Trust II dated March 10, 2003, as emended March 30, 2008, and known to me to be an authorized trustee or agent of the trust that executed the Mortgage and acknowledged the Mortgage to be the fraa and voluntary act and deed of the trust, by au. thorlty set forth In tha trust documents or, by authority of statute, for the, uses and purpos, es therel.n menu~ned' a d on oa.th stated that he or she Is authorized to execute this Mortgage and In fact executed the Mortgage on behalf of t!le trullt, ¿:; 1 to? ' c)t- By Y e-ð,Z'Æ.L¿ i! ) Residing at 5f/¿t ¿: I~ /t6! ,é¡!êftvJU--> 11, P?-t--{../ Notery Public In and for e ate of It r ¡r~~ My commission expires Cj;J )¿l151 / ¿J ,~¿?/ () TRUST ACKNOWLEDGMENT STATE OF (tJ.f¿t'}",}'hI-r'; ) COUNTY OF ¡51;'" -1/) ¡7-I-Ir¡ : SS On this ~¿ '11'# z:,fJ day of )()¡¿lfÝ1 /tt""é , 20 .£2...1, before me, the undersigned Notary Public, personally appeared S y Scaffide, Trustee of Scafflde Trust II dated March 10, 2003, es amended March 30, 2008, and known to me to be an authorized trustee or agent of the trust that executed the Mortgage and acknowledged the Mortgage to be the free and voluntary act and deed of the trust, by authority set forth In the trust documents 0', by authority of statute, for the uses and purposes therein mentioned, and on oath slated that he or she Is authorized to e"cute his Mortgaga and In fact executed the Mortgage on behalf ~tpe I1;\'st. \:1 ) r' By 't '·/1----¿,¿L¡'.¿,v ' Residing at ¿'¿~"'1J f it ¿ I f( 6 h /; ~/'r...."./ '7J- W/J1 ~ I ,,1/.1> LL- r /) Notary Public In and for t e tate of ?¿' ' . 7"7 ''7- -7. ' My commission sxplrss 7/ C.,[¡;, / ,/ £,. r7L. -: /U ( LAlERPRO l.enlilne. v.,. $.31.00.003 Copr. HlrIMcI FIMnMI........ Inc. 1...,. 2007. HI Rlghll .......... . wv It:\CFN..PL\G01.I'C TfI:.11t711 PR~'D BOBBI L. ROCKEFELLER - NOTARY PUBLIC Slale of Wyoming County of Lincoln My Commission Expires May 10, 2010