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RECEIVED 3/6/2008 at 3:51 PM
RECEIVING # 937424
BOOK: 688 PAGE: 840
JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER, WY
MORTGAGE, ASSIGNMENT OF RENTS AND
SECURITY AGREEMENT
000840
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THIS MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
.. (the "Mortgage") is made this 6th day of March, 2008 between Steve Chichinsky, (the
...J "Grantor,,) and Eastern Savings Bank, fsb, a federally chartered savings bank (the
"Lender").
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WHEREAS, the Grantor is justly indebted to Lender in the principal amount of T wo
Hundred Fifty Five Thousand and 00/100 Dollars ($255,000.00) representing the balance of a
commercial loan of even date to Grantor which sum the Grantor has promised to pay to Lender
pursuant to the terms of a Promissory Note (the "Note") to Lender of even date herewith in the
aforementioned amount, due and payable on or before April 1, 2038; and
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WHEREAS, it is a condition precedent to such loan by Lender to the Grantor that the
Grantor execute and deliver this Mortgage to Lender and subsequent holders of the Note as
security for the payment of the principal and interest payable under the Note.
NOW, THEREFORE, WITNESSETH: That for and in consideration of the foregoing
and in order to secure the payment by the Grantor of the debt evidenced by the Note and any
other sums payable under the Note or hereunder, the Grantor does hereby mortgage, grant and
convey unto Lender, and its successors and assigns, all the right, title and interest of Grantor
in and to those parcels of land termed the "Real Property" being located in Lincoln County,
Wyoming, and more particularly described in Exhibit "A", attached to this Mortgage, and
incorporated in it by reference.
TOGETHER with all of the Grantor's right, title and interest in and to (i) all buildings
and improvements now or hereafter situated thereon or therein; (ii) all rights, privileges,
easements, hereditaments and appurtenances now or hereafter thereunto belonging or
appertaining; (iii) all fixtures and equipment now or hereafter installed in, on or about the
aforesaid property by or on behalf of the Grantor or any owner of the aforesaid property and
used or for use therein, thereon or thereabout - all of said property being declared by the
parties hereto to be real fixtures and part of the aforesaid real estate whether attached to the
free-hold or not; provided, however, that trade fixtures and other personal fixtures of any
tenant now or hereafter installed on or about the aforesaid property are not intended to be
included in this provision except to the extent of Grantor's interest therein; (iv) all warranties
of every nature conveyed herein or encumbered hereby, and all after acquired properties
conveyed herein or encumbered hereby; (v) all of the property conveyed above or otherwise
conveyed to Lender herein or hereafter and each and every part thereof;
TOGETHER with aU right, title and interest of Grantor, now owned or hereafter Ù0084~
acquired in and to all tangible personal property (the "Personal Property") owned or leased by
Grantor and now or at any time hereafter located on or at the Mortgaged Property or used in
connection therewith;
TOGETHER with aU right, title and interest of Grantor in all policies of insurance,
insurance proceeds and condemnation proceeds pertaining to the Real Property (subject to the
limitations set forth herein);
TOGETHER with aU plats, drawings, engineering studies, contracts, agreements,
licenses, approvals or other intangibles relating to the development of the Reil Property;
TOGETHER with aU and singular the rights, aUeys, ways, waters, easements,
tenements, privileges, advantages, accessions, hereditaments and appurtenances belonging or
in any way appertaining to the aforesaid land and other property, and the reversions and
remainders, rents, issues and profits thereof and including any right, title, interest or estate
hereafter acquired by Grantor in the aforesaid land and other property;
TO HAVE AND TO HOLD the said Real Property with improvements thereupon and aU
the rights, easements, rents, profits and appurtenances and aU other property described above
(all of which is hereinafter sometimes caUed the "Mortgaged Property" or the "Property")
belonging unto and to the use of Lender, and its successors and assigns;
For the benefit and security of Lender and for the enforcement of the payment of the
principal and interest under the Note and compliance with the terms, covenants and conditions
of this Mortgage and of the Note executed of even date herewith, (collectively, the "Loan
Documents").
Provided, however, that if the principal and interest payments under the Note and aU
other sums payable under the Note and hereunder are paid when due, and if aU of the
covenants of the Grantor set forth in the Loan Documents shall be performed by the Grantor,
all without fraud or delay, and upon satisfactory proof being given to Lender that the principal
debt and aU interest payable under the Note and aU other sums secured hereunder have been
paid, Lender shaU release this Mortgage and reconvey the Mortgaged Property to the Grantor.
This Mortgage is made upon the following terms, conditions and covenants:
1. The Grantor covenants and agrees to pay all installments of interest under the Note
and any other sums payable under the Note or hereunder promptly when due and
shall comply with aU covenants and obligations set forth in the Loan Documents.
2. The Grantor covenants and agrees to pay to the Lender on the day monthly
payments are due under the Note, until the Note is paid in full, a sum ("Funds,,)
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ú00842
for: (a) yearly taxes and assessments which may attain priority over this Security
Instrument as a lien on the Property; (b) yearly leasehold payments or ground rents
on the Property, if any; (c) yearly hazard or property insurance premiums; (d)
yearly flood insurance premiums, if any; ( e) yearly mortgage insurance premiums,
if any; and (f) any sums payable by Grantor to Lender, in lieu of the payment of
mortgage insurance premiums. These items are called "Escrow Items". Lender
may estimate the amount of Funds due on the basis of current data and reasonable
estimates of expenditures of future Escrow Items or otherwise in accordance with
applicable law. The Funds are pledged as additional security for all sums secured
by this Security Instrument.
If the amount of the Funds held by Lender at any time is not sufficient to pay the
Escrow I tems when due, Lender may so notify Grantor in writing, and, in such
case, Grantor shall pay to Lender the amount necessary to make up the deficiency.
Upon payment in full of all sums secured by this Security Instrument, Lender shall
promptly refund to Grantor any Funds held by Lender. If Lender shall acquire or
sell the Property, Lender, prior to the acquisition or sale of the Property, shall
apply any Funds held by Lender at the time of acquisition or sale as a credit against
the sums secured by this Security Instrument.
3. The Grantor covenants and agrees not to make, suffer or permit any use of the
Property which will create or cause to exist a fire or other hazard, nor will Grantor
in any way increase the risk caused by an existing or future hazard.
4. The Grantor covenants and agrees to allow any authorized representative of Lender
access to the Property (i) at any time without limitation during an emergency as
determined solely by Lender and (ii) otherwise during normal business hours and
without advance notice, such right of access being granted herein for the purpose of
allowing Lender or its designed to ascertain whether the terms, covenants and
conditions of this Mortgage and all other Loan Documents are being fulfilled.
5. The Grantor covenants and agrees not to commit any waste of the mortgaged
Property nor permit nor suffer any waste thereof by others, and to keep the
Mortgaged Property in good order and repair.
6. The Grantor covenants and agrees to maintain adequate financial records:
a. The Grantor will keep adequate records and books of account pertaining to the
Mortgaged Property in accordance with generally accepted accounting
principles and will permit Lender, by its agents, accountants, and attorneys to
examine the financial records and books of account and to discuss its affairs,
finances, and accounts with the Grantor at such reasonable times as may be
requested by Lender.
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b. The Grantor and the Guarantors, if any, on request by Lender will furnish to Ù'00843
Lender with reasonal?le promptness, copies of income and net worth
statements for their respective most recent fiscal years.
c. The Grantor, within ten (10) days of any request by Lender, will furnish a
written statement, duly acknowledged, of the amount of the outstanding
indebtedness to Lender secured by this Mortgage, the amount of accrued
interest as of a specified date, and whether any offsets or defenses exist
against the indebtedness secured hereby.
7. The Grantor covenants and agrees to keep the Mortgaged Property free from all
statutory liens and from liens, encumbrances and claims of every kind whether
junior or senior to the lien of this Mortgage. The Grantor covenants and agrees to
pay or bond off from time to time when the same shall become due, all lawful
claims and demands of mechanics, material men, laborers and others which, if
unpaid, might result in, or permit creation of, a lien on the Mortgaged Property or
any part thereof, or on the revenues, rents, issues, income and profits arising
therefrom, and in general the Grantor covenants to do or cause to be done
everything necessary so that the lien hereof shall be fully preserved, at the cost of
the Grantor, without expense to Lender.
8. The Grantor covenants and agrees, at its expense, to maintain a general public
liability insurance policy covering the Mortgaged Property with limits of not less
than $1,000,000.00 for bodily injury and death of one or more persons and
$100,000.00 for property damage. The Grantor shall furnish Lender with a
certificate of such policy and for all renewals thereof, together with evidence of the
payment of any premiums coming due during the loan term at least twenty (20)
days before the expiration of the existing policy. The Grantor shall at all times
maintain workmen's compensation insurance in accordance with applicable state
law.
9. The Grantor covenants and agrees to keep any improvements upon sa:id Property
constantly insured against loss by fire with extended coverage in an amount
reasonably satisfactory to Lender in all respects so as to avoid any claim on the part
of the insurers for co-insurance and, in addition, to keep in full force and effect
policies of insurance insuring against such other hazards, casualties, and
contingencies as Lender may reasonably require. Such policies will be on such
forms, in such companies, for such periods, and in such amounts as Lender may
require from time to time with loss payable to Lender. The Grantor covenants and
agrees to deliver the policy or policies required herein or pursuant hereto to Lender
as additional security; and, where renewal policies are necessary in the performance
of this covenants, the Grantor covenants and agrees to deliver such policies to
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000844
Lender at least twenty (20) days before the expiration of the existing insurance,
together with a receipt showing all premiums paid in full. All fire and hazard
insurance proceeds may be applied, at Grantor's request, to the restoration of the
Improvements provided that the following conditions are satisfied: (i) in Lender's
judgement, sufficient funds are available and/or committed, including insurance
proceeds, to complete the restoration; (ii) no event of default exists under any of the
Loan Documents, and no event or condition has occurred which with the giving of
notice or passage of time or both will constitute an Event of Default under any of
the Loan Documents; (iii) Lender shall have received, reviewed and approved all
plans and specifications to be used for such restoration; and (iv) the proceeds shall
be held by Lender and the disbursement of all funds held for such restoration shall
be controlled by Lender and accomplished in a manner satisfactory to Lender in its
sole discretion. If the Property is abandoned by Grantor, or if Grantor fails to
respond to Lender within 30 days from the date notice is mailed by Lender to
Grantor that the insurance carrier offers to settle a claim for insurance benefits,
Lender is authorized to collect and apply the insurance proceeds at Lender's option
either to restoration or repair of the Property or to the sums secured by this
Mortgage. Unless Lender and Grantor otherwise agree in writing, any such
application of proceeds to principal shall not extend or postpone the due date of the
monthly installments referred to in Paragraph 1 hereof. If the Property is acquired
by Lender, under the terms of this Mortgage, all right, title and interest of Grantor
in and to any insurance policies and in and to the proceeds thereof resulting from
damage to the Property prior to the sale or acquisition shall pass to Lender to the
extent of the sums secured by this Mortgage immediately prior to such sale or
acquisition.
10. The Grantor covenants and agrees promptly to comply with and obey all laws,
ordinances, rules, regulations, requirements and orders of every duly constituted
governmental or other public authority with respect to:
a. all restrictions, specifications, or other requirements pertaining to products
that it sells or to the services it performs;
b. the conduct of its business;
c. the use, maintenance, and operation of the real and personal properties owned
or leased by it in the conduct of its business;
d. the obtaining of all necessary licenses and permits necessary to engage in its
business; and
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000845
e. the making, storing, handling, treating, disposing, generating, transporting, or
release of hazard substances.
11. The Grantor covenants and agrees not to allow any lien or claim of title prior to the
lien or title created by or conveyed in this Mortgage or prior to the lien or title
created by or conveyed in any of the other Loan Documents, to attach to said
Property or any other realty or personalty conveyed in or encumbered by any of the
Loan Documents after the date hereof and covenants to take such actions as the
Lender shall deem necessary or desirable in Lender's exclusive opinion to protect
the Lender's rights, titles or interest herein, and in all other Loan Documents. The
Grantor covenants not to default in any agreement or obligation of any nature
whatsoever affecting the Mortgaged Property or any part thereof or the occupants
thereof or which affect, directly or indirectly, the value of the Mortgaged Property
or any or all of the Loan Documents, or the rights, titles or interests of the Lender
thereunder.
12. a.
Grantor covenants and agrees to pay when due all rents and other payments to
be paid by it, and to perform all covenants, agreements and undertakings to be
performed by it under any lease, sublease or ground lease which may affect or
constitute a portion of, or an interest in, the Mortgaged Property. Grantor
further covenants and agrees that it will not, without the prior written consent
of Lender, which consent shall not be unreasonably withheld, assign, consent
to the cancellation of or surrender of, or accept prepayment of rents under,
any lease now or hereafter covering any part of the Mortgaged Property, nor
modify any such lease so as to shorten the term, decrease the rent, or
accelerate payment of rent, and any such purported assignment, cancellation,
surrender, prepayment or modification made without consent of Lender shall
be void as against Lender and shall constitute an event of default hereunder.
b. Grantor further covenants and agrees that should, at any time, any recordation
or transfer taxes or documentary stamps be assessed in connection with this
Mortgage, Grantor will pay the same within fifteen (15) days of receiving
notice of the assessment (under protest if Grantor desires).
c. Grantor covenants and agrees not to cause, allow or permit the sale,
assignment or transfer, voluntarily, involuntarily, or by operation of law,
directly or indirectly as by the sale of stock in any corporate owner, by any
person, firm, or company, of the title or the equity of redemption or transfer
of any partnership interest, or any legal or equitable interest, in the Mortgaged
Property, in whole or in part, unless such sale, assignment or transfer is
consented to in writing by Lender which consent shall be in the sole and
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000846
absolute discretion of Lender after submission by the Grantor of such financial
statements and such other documents which Lender may require
Notwithstanding the foregoing, the shareholders in Grantor may transfer
shares in Grantor to a spouse or lineal descendent by inter vivos gift or
otherwise for estate planning purposes.
d. If required by Lender, Grantor agrees to execute an Assignment of Security
Deposits in form and content satisfactory to Mortgagee.
13. Lender may, at any time and from time to time, without affecting the priority or the
validity of the lien of this Mortgage or the liability of any person (other than the
person released pursuant hereto) and without notice of any kind:
(i) Waive or amend any of the covenants, terms or conditions of this Mortgage or
of the Note or other Loan Documents, or grant any forbearances or extensions
in the performance thereof; or
(ii) Release any portion of the Mortgaged Property with or without payment upon
the principal debt secured hereby, or waive the priority of the lien of this
Mortgage on all or any part of the Mortgaged Property; or
(iii) Release any person primarily or secondarily liable for the payment of the Note
or the performance of the Grantor's covenants under this Mortgage; or
(iv) Accept additional security of any kind.
14. If the Grantor should fail to pay any taxes, water or sewer rents, assessments,
charges, claims, costs, expenses or fees required to be paid under the terms of this
Mortgage, or to maintain insurance, or to make all necessary repairs to the
Property, as provided herein, or if the Grantor fails to perform or observe any other
term, covenant or condition of this Mortgage or other Loan Documents after any
required notice from Lender and after the expiration of any applicable grace period,
Lender shall have the right and is hereby authorized without order of any court to
make advances or payments on behalf of the Grantor in order to rectify the default
and to engage counsel in connection therewith; and all such advances or payments
made by Lender and all reasonable legal and other expenses incurred by Lender in
connection with the rectification of such default or in order to protect the lien and
security of this Mortgage or enforce any of the covenants and conditions contained
herein shall be added to the indebtedness hereby secured and payable by the Grantor
to Lender promptly upon demand, together with interest thereon until paid at the
rate which is set forth in the Note; and such sums and interest shall be deemed
secured by this Mortgage.
15. Until the occurrence of an event of default hereunder (but not thereafter) the
Grantor shall be entitled to possession of the Mortgaged Property, the use and
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000847
enjoyment thereof and the right to receive the rents and profits thereof. Upon the
occurrence of any event of default under this Mortgage, Lender, its successors and
assigns, shall be entitled to the rents and profits of the Mortgaged Property, and for
such purpose such rents and profits are hereby assigned to Lender as additional
security. Grantor represents and warrant that such rents and profits have not been
assigned to another party as security for another debt. If this representation is false,
it shall constitute an event of default under this Mortgage. Upon the occurrence of
an event of default hereunder Lender shall also be entitled, at its election, to the
immediate appointment of a receiver for the Mortgaged Property, without notice to
the Grantor and without regard to the adequacy or inadequacy of the property as
security for the payment of the Note.
16. Under the temlS of the Note, Lender and subsequent holders of the Note may
declare the entire principal, accrued interest and other sums secured thereunder and
under this Mortgage to be fully due and payable immediately upon the occurrence
of an event of default under this Mortgage. Without any limitation on the
obligations of the Grantor or any Guarantor, in addition to any other act defined as
a default in any of the Loan Documents, the happening of one or more of the
following events shall constitute an event of default under this Mortgage, and the
other Loan Documents:
a. failure by the maker of the Note to make payment within the time period set
forth therein, of any sum required to be paid to the holder of the Note under
the terms of the Note and such failure continues after any applicable grace
period set forth in this Note;
b. failure of the Grantor to keep the Property properly insured or to deliver
insurance policies to Lender as above required;
c. failure of the Grantor to perform or observe any of the other terms,
covenants, or conditions to be performed or observed by the Grantor
hereunder or under the Promissory Note or other Loan Documents which is
not cured within thirty (30) days after written notice to Grantor except that if
such failure cannot be cured during such 30 days then such additional time as
may be necessary so long as Grantor is diligently pursuing such cure, as
determined by Lender.
d. if the Grantor of the Note makes a deed of assignment for the benefit of
creditors or files a petition for relief under any law of the United States or any
state pertaining to bankruptcy or insolvency, or suffers the filing against it of
any involuntary petition under the laws of any state or of the United States of
America pertaining to bankruptcy or insolvency and such involuntary petition
is not dismissed within sixty (60) days after filing;
e. creation of any unpermitted lien or encumbrance on all or any part of the
Property, whether or not junior to the lien of this Mortgage; provided,
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ù00848
however, that a judgement against Grantor, any attachment or other levy
against the Property, any mechanic's lien, or a lien by operation of law shall
not be considered a violation of this prohibition if it is paid, stayed on appeal,
discharged, bonded or dismissed within thirty (30) days;
f. sale, assignment or transfer, voluntarily, involuntarily, or by operation of law,
directly or indirectly as by the sale of stock in any corporate owner or transfer
of any partnership interest, by any person, firm, or company, of the title or
the equity of redemption, or any legal or equitable interest, in the Mortgaged
property, in whole or in part, unless such sale, assignment or transfer is
permitted hereunder or consented to in writing by Lender; provided, however,
that if the Mortgaged Property consists of individual lots or parcels, the
Grantor may convey such individual lots contained in the Property if Lender is
paid the Release Fee, and if Grantor is not in default under any of the Loan
Documents;
g. failure of the Grantor to perform or observe any of the terms, covenants,
conditions, or obligations of the Grantor to be performed or observed by the
Grantor under the provisions of any other promissory note or loan documents
executed by the Grantor as a part of any other loan transaction with Lender
hereunder.
17. Upon the happening of an event of default, at the option of Lender:
a. Lender shall have the right to declare the amount of principal of the Note then
unpaid, with interest thereon as provided in the Note, to be due and payable
immediately and upon such declaration the principal of, and interest on, the
Note then outstanding shall forthwith become and be due and payable as fully
and to the same effect as if the date of such declaration was the date originally
specified for the maturity of the unpaid balance of the Note;
b. the Grantor shall, at any time or times, upon demand of Lender, forthwith
surrender to Lender possession of the Mortgaged Property, or any portion
thereof, as for condition broken, and without process of law, either by
applying for appointment of a receiver, obtaining an assignment of rents or
otherwise, Lender immediately shall have the right to enter upon, take and
maintain possession of all or any part of the Mortgaged Property, together
with all records, documents, leases, books, papers and accounts of the Grantor
relating thereto (including without limitation of the foregoing enumeration, all
sets of plans, specifications, building drawings, licenses and permits), and as
the attorney-in-fact or agent of the Grantor (irrevocable) or in its own name,
acting under the assignment of rents herein made, and under the powers
herein granted, Lender shall have the right to hold, operate and manage the
Mortgaged Property and to receive and dispose of income, rents and profits
therefrom, and to make and file reports with respect thereto, to deduct
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000849
reasonable costs of collection, management fees, and administration expenses,
to apply the net rentals to the payment of operating expenses and/or on
account and in reduction of principal and interest due under the Note, in
Lender's sole discretion, all as the Grantor is required to do under this
Mortgage prior to the occurrence of such event of default, but without any of
the restrictions placed upon the Grantor under this Mortgage;
c. then and from thenceforth the Grantor hereby irrevocably authorizes and
empowers the prothonotary, clerk of court or attorney or any court of record
of any appropriate jurisdiction to appear for and confess judgement against the
Grantor, as well as against all persons claiming under, by or through
Grantor, and in favor of Lender, its successors or assigns, as of any term,
past, present or future, with or without declaration, for possession and/or
control of the Property (without the necessity of filing any bond and without
any stay of execution or appeal) for which this instrument (or a copy thereof
verified by affidavit) shall be a sufficient warrant; whereupon, appropriate
process to obtain possession and/or control of the Property (including levy and
execution) may be issued forthwith, without any prior writ or proceeding
whatsoever, Grantor hereby releasing and agreeing to release Lender and said
attorneys from all procedural errors and defects whatsoever of a procedural
nature in entering such judgement(s) or in causing such writs or process to be
issued or in any proceeding thereon or concerning the same, provided that
Lender shall have filed in such action( s) an affidavit( s) made by someone on
Lender's behalf setting forth the facts necessary to authorize the entry of such
judgement( s) according to the terms ofthis instrument, of which facts such
affidavit( s) shall be prima facia evidence; and it is hereby expressly agreed
that if, for any reason after any such action(s) has been commenced, and the
same shall be discontinued, marked satisfied of record or be terminated, or
possession of the Property remains in or is restored to the Grantor or anyone
claiming under, by or through the Grantor, Lender may, whenever and as
often as Lender shall have the right to, again take possession of the Property,
bring one or more further confessions in the manner hereinbefore set forth to
recover possession of the Property, and the authority and power above given
to any such attorney shall extend to all such further confessions;
d. then and from thenceforth it shall be lawful for Lender, its legal
representatives or assigns, to sell, transfer and set over the mortgaged
Property or any portion or parcel thereof, and all other right, title and interest
of the Grantor of, in and to the same, at public auction, as provided by law;
and as the attorney of the Grantor for that purpose by these presents duly and
irrevocably authorized, constituted and appointed, to make, seal, execute and
deliver to the purchaser or purchasers thereof, a good and sufficient
assignment, transfer or other conveyance in the law, for the Mortgaged
Property or any portion or parcel thereof, with the appurtenances; which sale,
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so to be made, shall forever be a perpetual bar, both in law and equity,
against the Grantor and against all persons who may at any time claim the
Mortgaged Property or any such portion or parcel thereof, by, from or under
it;
e. Lender shall have the right:
(i) to cause the Mortgaged Property, or portions or parcels thereof in such
manner and order as Lender in its sole discretion see fit, to be sold upon
such terms and conditions and in such manner as it may deem advisable,
at public or private auction, at some convenient place in Lincoln
County, Wyoming, upon giving to the Grantor not less than ten (10)
days notice in writing of the time and place of such sale; to adjourn any
such sale from time to time by announcement at the time and place
appointed by such sale or for such adjourned sale; and upon the
completion of any such sale to execute or cause to be executed such
deed, assignment, bill of sale, certificate or other assurance to the
purchaser as may be necessary to pass the title to the property so sold,
and such sale, when made, shall forever be a perpetual bar, both in law
and equity, against the Grantor and against all persons who may at any
time claim the Mortgaged Property or such portion or parcel thereof, by,
from or under the Grantor;
(ii) to institute judicial proceedings for the complete foreclosure of this
Mortgage under any other applicable provision of law; and the Grantor
hereby assents to a decree for the sale by Lender of the Mortgaged
Property or any portion or parcel thereof after an event of default
hereunder;
(iii) to protect and enforce their rights under the Note and this Mortgage, or
any of them, either by suit or suits in equity or at law, in any court or
courts of competent jurisdiction, whether for specific performance of any
covenant or agreement contained herein, or in aid of execution of any
powers herein granted, or for any foreclosure under this Mortgage, or
for any other sale of the Mortgaged Property or any portion or parcel
thereof, so far as may be authorized by law, or for the enforcement of
such other or additional appropriate legal or equitable remedies as
Lender may deem most effective to protect and enforce such rights;
(iv) to exercise any and all other rights and remedies available to it by law or
equity, without further stay, any law, usage or custom to the contrary
notwi thstanding;
f. Lender, as a matter of strict right and without notice to the Grantor or anyone
claiming under it, and without regard to the then value of the Mortgaged
Property, shall have the right to apply to any court having jurisdiction in the
premises to appoint a receiver or receivers of the Mortgaged Property, and the
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000851
Grantor hereby irrevocably consents to such appointment and waives notice of
any application therefor;
any such receiver or receivers shall have all the usual powers and duties of
receivers in like or similar cases and all the powers and duties of the Trustees
in case of entry as provided in Subparagraph (b) of this Paragraph 17, and
shall continue as such and exercise all such powers until the date of
confirmation of sale, unless such receivership is sooner terminated;
g. each of the then Lessees, if he or it is the occupant of the Mortgaged Property
or any part thereof, shall, upon demand of Lender, immediately surrender
possession of the premises occupied to Lender, and if such occupant is
permitted to remain in possession, the possession shall be as tenant of Lender
and such occupant shall, on demand, pay monthly in advance to Lender rental
for the space as provided in the lease or otherwise agreed with Lender, and in
default thereof such occupant may be dispossessed by the usual summary
proceedings; in case of foreclosure and the appointment ofa receiver of rents,
the covenants contained in this subparagraph may be enforced by such
receIver;
h. Lender may, but shall not be required to, complete construction of, and
market, the Improvements contemplated by the Loan Documents at Grantor's
expense, and perform such other acts as may be deemed necessary by Lender
to protect the estate herein granted, and any sums expended by Lender shall
become part of the sums secured hereby; and, all rights and remedies hereby
granted or otherwise available to Lender shall be cumulative and concurrent
and may be pursued singly, successively or together at the sole option of
Lender, and may be exercised from time to time and as often as occasion
therefor shall occur until the indebtedness hereby secured, with all interest
thereon, is paid in full.
18. Upon any default sale of the Property, the net proceeds of the sale after adjustment
of taxes, other expenses of the property and the cost of transfer, pursuant to the
terms of sale, shall be applied as follows:
a. First, to the repayment of all expenses incident to such sale, including a
counsel fee of fifteen percent (15%) of the outstanding balance and accrued
interest and late charges, and a commission to the party making the sale of the
property equal to the commission allowed trustees for making sale of property
in the County in which the property is located by virtue of a decree of the
Court having equity jurisdiction.
b. Second, to the payment of all claims of Lender under the Note, or Loan
Documents, whether the same shall have matured or not, and all claims of
Lender under this Mortgage. All payments hereunder shall be applied first to
12
c.
late penalties and other sums owing Lender under the Note or Loan
Documents, and to accrued interest before being applied to principal.
Third, to the payment of all claims of Lender on any other loan between the
Grantor and Lender, if any such other loan is in any respect in default.
And the surplus (if any) to the Grantor, its personal representatives,
successors or assigns or whomever may be entitled to the same.
ù00852
d.
19. The failure of Lender to exercise any right hereunder or the delay in the exercise of
any right or remedy hereunder shall not in any way affect this Mortgage or the
rights of Lender or be deemed a waiver of such rights or remedies exercisable with
respect thereto. Any rights, powers, options or remedies contained herein or
available to Lender at law or in equity with respect hereto, shall be construed and
deemed as cumulative, and no one or more of them as exclusive of any other or of
any rights or remedies now or hereafter given or allowed by law.
20. The Grantor, immediately upon obtaining knowledge of the institution of any
proceeding for the condemnation of the Property or any portion thereof covenants
to notify Lender of the pendency of such proceedings. Lender may participate in
any such proceedings and the Grantor from time to time will deliver to Lender all
instruments requested by it to permit such participation. In the event of such
condemnation proceedings, the award or compensation payable is hereby assigned
to and shall be paid to Lender to the extend permitted under prior recorded deeds of
trust. Lender shall be under no obligation to question the amount of any such
award or compensation and may accept the same in the amount in which the same
shall be paid. In any such condemnation proceedings, Lender may be represented
by counsel selected by Lender and the reasonable cost thereof to be paid by Grantor
upon demand. The proceeds of any award or compensation so received shall, at the
option of Lender, either be applied without premium or penalty to the prepayment
of the Note at the rate of interest provided therein regardless of the rate of interest
payable on the award by the condemning authority, or to be paid over to the
Grantor for restoration of the improvements.
21. Notwithstanding anything herein elsewhere contained, the Grantor shall not be
required, to pay, discharge or remove or cause to be paid, discharged or removed,
any tax, tax lien or assessment, or any mechanic's or laborer's or materialman's
lien, or any forfeiture or other imposition or charge against the Mortgaged Property
or any part thereof or any improvements at any time situated thereon, so long as it
shall in good faith contest the same or the validity thereof by appropriate
proceedings which shall operate to prevent the collection of the tax, lien,
assessment, forfeiture, imposition or charge so contested and the sale of the
Property to satisfy the same, and pending any such legal proceedings Lender shall
not have the right to pay, remove, or cause to be discharged the tax, lien,
13
000853
forfeiture, imposition or charge thereby contested provided that there shall have
been posted such security as may be required or permitted by law to insure such
payment and prevent any sale or forfeiture of said Property in the event that such
proceedings shall be determined adversely to Grantor.
22. Lender shall have full power to exercise all powers and discretions herein granted to
Lender, including the right and power to execute any release of all or any part of
the Mortgaged Property.
23. Any notice, demand or delivery which may be given or made hereunder or with
reference to this Mortgage shall be deemed given 48 hours after the date of mailing,
certified mail, return receipt requested, postage prepaid, and addressed:
To the Grantor:
Steve Chichinsky
8500 S. Henry Road
Jackson, Wyoming 83001
To Lender:
c/o Eastern Savings Bank, fsb,
11350 McCormick Road, Suite 200
Executive Plaza 2
Hunt Valley, Maryland 21031
ATTN: William J. Monacelli
With a copy to:
Richard C. Zeskind, Esquire
Executive Plaza 2, Suite 200
11350 McCormick Road
Hunt Valley, Maryland 21031.
24. Any party may change its notice address by giving notice to the others pursuant to
the provision hereof.
25. The Grantor agrees that in the event of the enactment of any law or ordinance, the
promulgation of any zoning or other government regulation, or the rendition of any
judicial decree restricting or materially adversely affecting the use of the Mortgaged
Property or re-zoning the area wherein the same shall be situate (if the Mortgaged
Property is not covered by a grandfathered or nonconforming use provision
14
000854
permitting the continuance of the existing use of the Mortgaged Property), or any
restriction or loss of the existing improvements, including parking and landscaping
resulting from any encroachment onto adjacent properties, which Lender reasonably
believes materially adversely affects the trust property, Lender may, upon at least
sixty (60) days written notice to the Grantor, require payment of the indebtedness
secured hereby at such time as may be stipulated in such notice and the whole of the
indebtedness secured hereby, shall thereupon become due and payable.
In the event that any specific tax or assessment (other than the Federal or State
Income Tax or franchise taxes presently imposed under applicable law) is assessed
directly or indirectly against the interest, or any part thereof, of Lender herein, or
against the present or future holder or holders of the Note secured hereby, or
against the indebtedness evidenced thereby, the Grantor herein agrees that it will
pay any and all of such taxes before the same shall become delinquent; provided
that if the Grantor shall fail to pay such tax, Lender may pay such tax and add the
amount so paid to the indebtedness of the Grantor secured hereby. Should the
Grantor fail to pay any and all of such tax or taxes before the same shall become
delinquent, or should any law be adopted by virtue of which any such tax cannot be
added to the amount of principal or interest secured hereby, or should a court of
competent jurisdiction render a decision that the undertaking by the Grantor herein
is illegal and in-operative, then, upon the happening of any such events, the whole
indebtedness, including principal and accrued interest herein secured, shall at the
option of the Trustees and/or Lender, become due and payable notwithstanding
anything to the contrary contained herein, or contained in the Note, and default
shall exist hereunder.
26. Lender may extend the time of payment or agree to alter the terms of payment of
the indebtedness and grant partial releases of any portion of the property included
herein.
27. Lender may bid and become the purchaser at any sale under this Mortgage.
28. Grantor hereby grants to Lender a security interest in the Personal Property located
on or at the Mortgaged Property, including any and all property described in the
granting clauses of this instrument and any and all property of similar type or kind
hereafter located on or at the Mortgaged Property, and in the proceeds therefrom,
for the purpose of securing all obligations of Grantor contained in any of the Loan
Documents. This instrument shall constitute a Security Agreement as defined by
applicable law.
29. The Grantor hereby grants, assigns and transfers to Lender all of the rents and other
receipts from the Mortgaged Property (including all rents, issues, profits and all
tenants security deposits), whether directly or indirectly or now or hereafter
15
ò00855
accruing with respect thereto, provided that prior to an event of default hereunder,
Grantor shall have a license to collect all such rents and receipts.
30. The Grantor hereby covenants and agrees that the above loan evidenced by the Note
was made or is being made for a commercial purpose to a business or commercial
organization or to a person or persons, owning, operating, or desiring to acquire
and operate a business, and the Grantor further covenants and agrees that the loan is
being transacted solely for the purpose of carrying on or acquiring a business or
commercial investment.
31. Time is of the essence of this Mortgage and each and every term, covenant and
condition herein.
32. The obligations of the Grantor hereunder shall be binding upon its or their heirs,
successors and assigns; and the benefit of all of the provisions hereof shall inure to
all subsequent holders of the Note.
33. Grantor warrants and will defend generally the Property hereby conveyed and
assigned, whether now owned or hereafter acquired, subject only to those
exceptions listed in Schedule B, Part I of the title insurance policy issued to and
accepted by Lender in accordance with the binder previously accepted by Lender.
Grantor covenants to cause the title insurance policy, in accordance with said
binder, to be issued and delivered to Lender within forty-five (45) days from the
date hereof.
34. The Grantor covenants to execute, and cause to be executed, such further
assurances of title to the Property or all or any of the Loan Documents, and to take,
and cause to be taken, such actions, including the institution and conduct of legal
proceedings, as may at any time appear to Lender to be desirable to protect
Lender's rights, titles or interest in the Property, or the Loan Documents, or to
perfect the title thereto in Lender (as the case may be). Grantor covenants to
defend, and cause to be defended, the claim or title of Lender (individually and/or
collectively) in any of the Loan Documents, or the Note, or any part or all of the
Mortgaged Property or of any other security therefore.
35. Cross Default. It is understood and agreed that this Mortgage is subject to the legal
operation and effect of an additional Mortgage dated October 2, 2007 from the herein
borrower to Eastern Savings Bank, fsb in the amount of$320,500.00, and secured by
a Mortgage from the herein borrower to Eastern Savings Bank, fsb, in the amount of
$320,500.00, recorded in Book 674, Page 525 in the Office of the Lincoln County
Clerk, Wyoming, said Mortgage encumbering the premises known as 193 Kibbie
Parkway, Alpine, Wyoming 83128. Any default in the terms, covenants and
16
conditions of the aforesaid additional Mortgage shall constitute a default under the
terms of this Mortgage and the same may become immediately due and payable.
000856
IN WITNESS WHEREOF, the Grantor has executed this Mortgage.
WITNESS/ATTEST:
-(SEAL)
STATE OF WYOMING, County of U LL~ tv-
, to wit:
I hereby certify that on this 6th day of March, 2008, before me, the subscriber, a Notary
Public of the State of Wyoming, in and for the County of [1 u...c.ol r\- ,
personally appeared Steve Chichinsky, known to me or satisfactorily proven to be the person
whose name is subscribed to the within instrument, and acknowledged that he executed the
same for the purposes therein contained.
AS WITNESS WHEREOF, my hand and notarial seal.
N~
My conmlission expires: ~ J:2- S /2bl b
G:\SHARED\FETC\COMMERCL \chichil1sky2.111tg.DOC
NANCY J. BROWN - NOTARY PUBLIC
COUNTY OF . . STATE OF
LINCOLN - , WYOMING
MY COMMISSION EXPIRES ~12.5/'2.D(O
17
EXHIBIT "A"
000857
ALL TIlAT PROPERTY situated in Lincoln County, Wyoming:
A portion of Section 9, T36N, Rl19W, 6th PM, Wyoming, descnòed as follows:
Lots 8 & 7, Proposed Alpine Retreat, Inc., Subdivision #3, as prepared in 1971 by AAA
Engineers, Alden Brewer, Land Surveyor Register No. 526, Salt Lake City, Utah.
The improvements thereon being known as 193 Kibbie Parkway.
TAX ID NO.: 36190940000800