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HomeMy WebLinkAbout940851 fb , & Iii rii !If: 'Rß ISI l'~ RECORDATION REQUESTED BY: First Interstate Bank Jackson Main Branch 842 West Broadway P. O. Box 11095 Jackson, WY 83002-1095 RECEIVED 7/28/2008 at 4:31 PM RECEIVING # 940851 BOOK: 700 PAGE: 897 JEANNE WAGNER LINCOLN COUNTY CLERK. KEMMERER, WY 000897 WHEN RECORDED MAIL TO: First Interstete Bank Jackson Main Br.nch 842 West Broadway P. O. Box 11095 Jackson, WY 83002.1095 SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY UFhtHe...WeBark MORTGAGE MAXIMUM LIEN. The lien of this Mortgage shall not exceed at anyone time $100,000.00. THIS MORTGAGE dated July 16, 2008, Is made and executed between Tony V Scaffide and Shay Scaffide, not personally but as Trustees on behalf of Scaffide Trust II dated March 10, 2003, 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 mortg.ges and convsys to Lender all of Grantor's right, title, and Interest In and to the following described real property, together with all existing or subsequently erected or affixed buildings, Improvements and fixtures; all easements, rights of way, and appurtenances; all water. water rights. watercourses and ditch rights (Including stock In utilities with ditch or Irrigation rights); and all other rights. royalties. and profits relating to the real property, Including, without limitation all minerals. 011, gas, geothermal and similar matters, (the "Real Property") located In Lincoln County, State of Wyoming: Lot 6 of Packsaddle Subdivision 3rd Filing, Lincoln County, Wyoming as described on the official plat thereof. THIS MORTGAGE IS GIVEN TO SECURE THE BORROWINGS OF TONY V. SCAFFIDE AND SHAY SCAFFIDE AS EVIDENCED BY THAT CERTAIN HOME EQUITY ADVANCELlNE CREDIT AGREEMENT AND DISCLOSURE OF EVEN DATE AND LIKE AMOUNT. THIS MORTGAGE WILL REMAIN IN EFFECT FOR THE TERM OF SAID CREDIT AGREEMENT 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 36190910001400. REVOLVING LINE OF CREDIT. This Mortgags securas the Indebtedness Including, without IImltetlon, a revolving line of credit. which obllg.tes Lender to maka adnnces to Borrower so long .s Borrower complies with .11 the terms of the Credit Agreement. Such .dvsnce. may be made, rep.ld, and rem.de from time to time. subject to the limitation that the totel outstanding bal.nce owing at .ny one time. not Including finance charges on .uch balance .t a fixed or variable rate or sum as provided In tha Credll Agreement, any tampor.ry over.ges, other charges, .nd .ny amounts expended or advanced as provided In either the Indebtedness paragraph or this p.ragraph, shall not exceed the Credit Limit .s provided In the Credit Agreement. It Is the Intention of Grantor and Lender that this Mortgage secures the balance outstendlng under the Credit Agreemant from time to time from zero up to the Credit Limit as provided In the Credit Agreement and .ny Intermedl.te balance. Grantor presently assigns tq Lender all of Grantor's right, title, and Interest In and to all present and future leases of the Property and all Rents from the Property. In addition, Grantor grants to Lender a Uniform Commercial Code security Interest In the Personal Property and Rents. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT OF THE INDEBTEDNESS AND (B) PERFORMANCE OF EACH OF GRANTOR'S AGREEMENTS AND OBLIGATIONS UNDER THE CREDIT AGREEMENT, THE RELATED DOCUMENTS, AND 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 "antl-deficlency" law, or eny 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 after Lender's commencement 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 provisions 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 order applicable to Grantor; (d) Grantor has established adequate means of obtaining from Borrower on a continuing basis Information ebout 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 all Borrower's and Grantor's obligations undar this Mortgage. POSSESSION AND MAINTENANCE OF THE PROPERTY. Borrower and Grantor agree that Borrower's and Grantor's possession and use of the Property shall be governed 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 Property; (2) use, operate or manage the Property; and (3) collect the Renls from the Property. Duty to Maintain. Grantor shall maintain the Property In good condition and promptly perform all repairs. replacements, and maintenance necessary to preserve 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 Hazardous Substance by any person on, under, about or from the Property; (2) Grantor has no knowledge of. or reason to believe that there has been, except as previously disclosed to and acknowledged by Lender In writing. (a) any breach or violation of any Envlronmantal 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 previously disclosed to and ecknowledged by Lender in writing, (a) neither Grantor nor eny tenant. contractor. agent 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 federal, state. and local laws, regulations and ordinances. Including without limitation all Environmental Laws, Grantor authorizes Lender and its agents to enter upon the Property to make such Inspections and tests. at Grantor's expense. as Lender may deem appropriate to determine compliance of the Property with this section of the Mortgage. Any inspections or tests made by Lender shall be for Lender's purposes only and shall not be construed to create any responsibility or liability on the part of Lender to Grantor or·to any other person. The representations and warranties contained herein are based on Grantor's due diligence In Investigating the Property for Hazardous Substances, Grantor hereby (1) releases and waives any future claims against Lender for Indemnity or contribution In the MORTGAGE (Continued) Page 2 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. liabilities, damages. penalties. and expenses which lender may directly or Indirectly sustain or suffer resulting from a breach of this section of the Mortgaga or as a consequence of any use, generation, manufacture. storage, disposal. release or threatened release occurring prior to Grantor's ownership or Interest In the Property, whether or not the same was or should have been known to Grentor. The provisions of this section of the Mortgage. Including the obligation to Indemnify and defend, ehall eurvive the payment of the Indebtedness and the satisfaction and reconveyance of the lien of this Mortgage and shall not be affected by Lender's 000898 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 oil and gas). coal, clay, scoria, soli, gravel or rock products without lender's prior written consent. Removal of Improvements. Grantor shail not demolish or remove any Improvements from the Real Property without lender's prior written consent. As a condition to the removal of any Improvements, Lender may require Grantor to make arrangements satisfactory to lender to replace such Improvements with Improvements of at least equal value, lender'. Right to Enter. lender and lender's agents and representatives may enter upon the Real Property at ail reasonable times to attend to lender's interests and to Inspect the Real Property for purposes of Grantor's compilence with the terms and conditions of this Mortgage, Compll.nce with Governmental Requirements. Grantor shail promptly comply with ail laws, ordinances. and regulations. now or hereafter In affect. of ail governmental authorities appilceble to the use or occupancy of the Property. Grantor may contast In good faith any euch law, ordinance, or regulation and withhold compliance during any proceeding, Including appropriate appeals. so long as Grantor has notified lender In writing prior to doing so and so long as, in lender's sole opinion. lender's Interests In the Property are not Jeopardized. lender may raqulre Grantor to post adequate security or a surety bond, reasonably satisfactory to lender. to protect lender's Interest. Duty 10 Protect Grantor agrees neither to abandon or leave unattended the Property. Grantor shall do ail other acts, In addition to those acts set forth above In this section. which from the character and use of tha Property are reasonably nacessary to protect and preserve tha Property. DUE ON SALE - CONSENT BY lENDER. lender may. at lander's option. declare Immadiataly due and payable eil sums eecured by this Mortgage upon the sale or transfer, without lendar's prior written consent. of ail or any part of the Real Proparty. or any Interest In the Raal Property. A "sala or transfer" means the conveyance of Real Property or any right, title or Interest In the Real Property; whether legal. beneficial or equitable; whether voluntary or Involuntary; whether by outright sale. deed, instailment sale contract. land contract. contract for deed, leasehold Intarest with a term greater than three (3) years, lease-optlon contract, or by sale. assignment, or transfer of any benaficiallntarest 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 shail 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 ilens on the Property are part of this Mortgage; Payment. Grantor shail pay whan due (and in all events prior to deilnquency) ail taxes. payroil taxes, special taxes, assessments, water charges and sewer service charges levied against or on account of the Property. and shail pay when due all claims for work done on or for sarvices rendered or material furnished to the Property, Grantor shall maintain the Property free of any ilens having priority over or equal to the Interest of lender under this Mortgage. except for the Existing Indebtedness referred to In this Mortgage or those ilens specifically agreed to In writing by lender. and except for the ilen 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 obilgatlon to pay, so long as lender's Interest In the Property is not Jeopardized. If a lien arises or Is filed as a resuit of nonpayment. Grantor shail within fifteen (15) days after the lien arises or, If a ilen Is filed. within fifteen (15) days after Grantor has notice of the filing. secure the discharge of the lien, or If requested by lender. deposit with lender cash or a sufficient corporate surety bond or other security satisfactory to lender In an amount sufficient to discharge the ilen plus any costs and reasonable attorneys' fees. or other charges that could accrue as a result of a foreclosure or sale under the ilen, In any contest. Grantor shail defend Itself and lender end shail satisfy eny adverse judgment before enforcement against the Property. Grantor shail name lender as an additional obilgee under any surety bond furnished in the contest proceedings. Evidence of Payment. Grantor shail 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 mechanlc's lien, materlalmen's lien, or other lien could be asserted on account of the work, services. or materlala 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: Malnten.nce of Insurance. Grantor shall procure and maintain policies of fire 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 application of any coinsurance clause. and with a standard mortgagee clause In favor of lender, Policies shall be written by such Insurance companies and In such form as may be reasonably acceptable to lender. Grantor shall deliver to lender certificates of coverage from each Insurer containing a stipulation that coverage will not be cancelled or diminished without a minimum of 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 tha Director of the Federal Emargency Management Agency as a special flood hazard area. Grantor agrees to obtain and maintain Federal Flood Insurance. If available, for the maximum amount of Borrower's credit line and the full unpaid principal balance of any prior liens on the property securing the loan. up to the maximum polley limits set under the National Flood Insurance Program. or as otherwise required by lender, and to maintain such Insurance for the term of the loan, Application of Proceeds, Grantor shall promptly notify lender of any loss or damage to the Proparty If the estimated cost of repair or replacement exceeds $3,000,00. lender may maka proof of loss If Grantor falls to do so within fifteen (15) days of the casualty, Whether or not lender's security Is Impaired, lander 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 replaca the damaged or destroyed Improvements In a manner satisfactory to 19J1der, 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 bean disbursed within 180 days after their receipt and which Lander has not committed to the repair or restoration of the Property shall be used first to pay any amount owing to lender under this Mortgage. then to pay accrued Interest. and the remainder, If any. shall be applied to the principal balance of the Indebtedness, If lender holds any proceeds after payment in full of the Indebtedness. such proceeds shall be paid to Grantor as Grantor's Interests may appear. Compliance with Existing Indebtedness. During the period In which any Exlsling Indebtedness described below is In effect, compliance with the Insurance provisions contained In the Instrument evidencing such Existing Indebtedness shall constitute compliance with the Insurance provisions under this Mortgage, to the extent compliance with the terms of this Mortgage would constitute a duplication of Insurance requirement. If any proceeds from the Insurance become payable on loss, the provisions in this Mortgage for division of proceeds shall apply only to that portion of the proceeds not payable to the holder of the Existing Indebtedness, TAX AND INSURANCE RESERVES. Subject to any limitations set by applicable law, lender may require Grantor to maintain with lender reserves for payment of annual taxes. assessments, and Insurance premiums, which reserves shall be created by advance payment or monthly payments of a sum estimated by Lender to be sufficient to produce, amounts at least aqual to the taxes, assessments. and insurance premiums to be paid. The reserve funds shall be held by lender as a general deposit from Grantor, which lender may satisfy by payment of the taxes, assessments, and Insuranca premiums required to be paid by Grantor as they become due, lender shall have the right to draw upon the reserve funds to pay such Items, and lender shall not be required to detarmlne the validity or aCcuracy of any Item before paying It. Nothing In the Mortgage shall be construed as raqulrlng lender to advance other monies for such purposes. and lender shall not Incur any liability for anything It may do or omit to do with respect to the resarve account. Subject to any limitations set by applicable law, If the reserve funds disclose a MORTGAGE (Continued) Page 3 shortage or deficiency. Grantor shall pay such shortage or deficiency as required by Lender. All amounts In the reserve account are hereby pledged to further secure the Indebtedness. and Lender Is hereby authorized to withdraw and apply such amounts on the Indebtedness upon the occurrence of an Event of Default. Lender shall not be required to pay any Interest or eamlngs on the reserve funds unless required by law or agreed to by Lender In writing. Lender does not hold the reserve funds in trust for Grantor. and Lender Is not Grantor's agent for payment of the taxes and assessments required to be paid by Grantor. lENDER'S EXPENDITURES. If Grantor falls (A) to keep the Property free of all taxes, liens. security Interests, encumbrances. and other claims, (B) to provide any required Insurance on the Proparty, (C) to make repairs to the Property or to comply with any obligation to maintain Existing ,Indebtedness In good standing as required below, 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 Grantor'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 Credit Agreement from the date incurred or paid by Lender to the date of repayment by Grantor. All such expenses will become a part of the Indebtedness and, at lender's option. will (A) be payable on demand; (B) be added to the balance of the Credit Agreament and be apportioned among and be payable with any installment payments to become due during either (1) the term of any applicable Insurance policy; or (2) the remaining term of the Credit Agreement; or (C) be treated as a balloon payment which will be due and payable at the Credit Agreement'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 remedies to which lender may be entitled on account of any default. Any such action by lender shall not be construed as curing the default so as to bar Lender from any remedy that It otherwise would have had. WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the Proparty are a part of this Mortgage; Title. Grantor warrants that: (a) Grantor holds good and marketable title of record to the Property In fee simple, frae and clear of all liens and encumbrances other than those set forth In the Real Property description or in the Existing Indebtedness section below or In any title insurance policy. titie report, or final title opinion Issued In favor of. and accepted by, Lender In connection with this Mortgage. and (b) Grantor has the full right. power, and authority to execute and deliver this Mortgage to Lender, Defense 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 th,e event any action or proceeding Is commenced that questions Grantor's title or the intarest of Lender under this Mortgage. Grantor shall defend the action at Grantor's expense, Grantor may be the nominal party In such proceeding, but Lender shall be enUtled to participate In the proceeding end to be represented in the proceeding by counsel of Lender's own choice, and Grantor will daliver, or cause to ba delivered, to Lender such Instruments as Lender may request from time to time to permit such particlpaUon. Compliance With laws. Grantor warrants that the Property and Grantor's use of the Property complies with all existing applicable laws, ordinances. and regulations of governmental authorities. Survival of Promises. 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 Borrower's Indebtedness Is paid In full. EXISTING INDEBTEDNESS. The following provisions concerning Existing Indebtedness are a part of this Mortgage: Existing Lien. The lien of this Mortgage securing the Indebtedness may be secondary and Inferior to an existing lien. Grantor expressly covenants and agrees to pay, or see to the payment of. the Existing Indebtedness and to prevent any default on such Indebtedness. any default under the Instruments evidencing such indebtedness. or any default under any security documents for such Indebtedness, No Modlllcatlon. Grantor shall not enter Into any agreement with the holder of any mortgage. deed of trust, or other security agreement which has priority over this Mortgage by which that agreement Is modified. amanded. extended. or renewed without the prior written consent of Lender. Grantor shall neither request nor accept any future advances under any such security egreement without the prior written consent of Lender. CONDEMNATION. The following provisions relating to condemnation proceedings are a part of this Mortgage: Proceedings. If any proceeding In condemnation Is flied, Grantor shall promptly notify Lender In writing. and Grantor shall promptly take such steps as may be necessary to defend the action and obtain the award. Grantor may be the nominal party In such proceeding, but Lender shall be entitled to participate In the proceeding and to be represented in the proceeding by counsel of Its own 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 participation, Application of Net Proceed.. If all or any part of the Property I. condemned by eminent domain proceedings or by any proceeding or purchase In lieu of condemnation, Lender may at Its election require that all or any portion of the net proceeds of the award be applied to the Indebtedness or the repair or restoration of the Property, The net proceeds of the award shall mean the award after payment of ell 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 charges are a part of this Mortgage; Current Taxe., Fe... and Charges. Upon request by Lender, Grantor shall execute such documents In eddltion to this Mortgage and take whatever other action Is requested by Lender to perfect and continue Lender's lien on the Real Property, Grantor shell reimburse Lender for all taxes. as described below. together with all expenses 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) e 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 Credit Agreement; and (4) a speclllc tax on all or any portion of the Indebtedness or on payments of principal and Interest made by Borrower, Subsequent Taxe.. ' If any tax to which this section applies Is enacted subsequent to the date of this Mortgage, this event shall have the sam a effect as an Event of Default. and Lender may exercise any or all of Its available remedies for an Event of Default as provldad below unless Grantor either (1) pays the tax before It becomes delinquent. or (2) contests the tax as provided above 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 amendad from tima to time. Security Intarest, Upon request by Lender. Grantor shall take whatever action is requested by Lender to perfect and continue Lender's security Interest in the Personal Property, In addition to recording this Mortgage In the resl proparty records, Lender may, at any time and without further authorization from Grantor. IIle executad counterparts, copies or reproductions of this Mortgage as a IInanclng 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 default. Grantor shall assemble any Personal Property not affixed to the Property In a manner and at a placa reasonably convenient to Grantor and Lender and make It available to Lender within three (3) days after receipt of written demand from Lender to the extent permitted by applicable law. Addre.s... The mailing addresses of Grantor (debtor) and lender (secured party) from which Information concerning the security Interest granted by this Mortgage may be obtained (each as required by the Uniform Commercial Code) are as stated on the firet page of this Mortgage. FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating to further assurances and attomey-In-fact are a part of this Mortgage; Further Aesurance.. At any time. and from time to time. upon request of Lander. Grantor will make, execute and deliver, or will cause to be made. executed or delivered. to Lender or to Lender's designee. and when requested by Lender, cause to be IIled. recorded. refiled. or rerecorded. as the case may be, at such times and In such offices and places as Lender may deem appropriate, any and all such mortgages. deeds of trust, security deeds, security agreements. financing statements, continuation statements. Instruments of further assurance, certlllcates. and other documents as may. In the sole opinion of Lender. be necessary or desirable In order to effectuate, complete, perfect, 000899 MORTGAGE (Continued) Page 4 continue, or preserve (1) Borrower's and Grantor's obligations under the Credit Agreement, this Mortgage, and the Relatad Documents, and (2) the liens and security Interests created by this Mortgage 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 Lander for all costs and expenses incurred In connection with the matters referred to in this paragraph, Attorney-In-Fact. If Grantor falls to do any of the things refarred to In the preceding paragraph, Lendar may do so for and In the name of Grantor and at Grantor's expense, For such purposes, Grantor hereby Irrevocably appoints Lander as Grantor's attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and doing all other things as may be necessary or desirable, in Lender's sole opinion, to accómpllsh the matters referred to in the preceding paragraph. FULL PERFORMANCE. If Borrowar and Grantor pay all the Indebtedness when due, tenninates the credit line account, and Grantor otherwise perfonns all the obllgetlons imposed upon Grantor under this Mortgage, Lendar shall execute snd deliver to Grantor a suitable satisfaction of this 0, 0090'0' Mortgage and suitable statements ,of tenninatlon of any financing statement on file evidencing Lender's security Interest in the Rents and the Personal Property, Grantor will pay, If pennltted by sppllcable law, any reasonable termination fee as detennlned by Lender from time to time, EVENTS OF DEFAUt. T. Grantor will be In default under this Mortgage If any of the following happen: (A) Grantor commits fraud or makes a materiel misrepresentation at any time In connection with the Credit Agreement. This can Include, for example, e false statement about Borrower's or Grantor's Income, assets, liabilities, or any other aspects of Borrower's or Grantor's financial condition. (B) Borrower does not meet the repaymenl tenns of the Credit Agreement. (C) Grantor's action or Inaction adversely affects the collateral or Lender's rights in the collateral. This can Include, for example, failure to maintain required insurance, waste or destructive use of the dwelling, failure to pay taxes, death of all persons liable on the account, transfer of title or sale of the dwelling, creation of a senior lien on the dwelling without Lender's permission, foreclosure by the holder of another lien, or the use of funds or the dwelling for prohibited purposes, RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default and at any time thereafter but subject to any limitation In the Credit Agreement or any limitation In this Mortgage, Lender, at Lender's option, may exarcise anyone or more of the following rights and remedias, In addition to any other rights or remedies provided by law: Accelerate Indebtedness. Lander shall have the right at its option without notice to Borrower or Grantor to declare the entire Indebtedness immediately due and payable, Including any prepeyment penalty that Borrower would ba required to pay. UCC Remedies. With respect to all or any part of the Parsonal Proparty, Lander shall hava all the rights and ramadles of a secured party under the Uniform Commercial Code, Collect Rents. Lender shall have the right, without notice to Borrower or Grantor, to take possasslon of the Property, Including during the pendency of foreclosura, whethar Judicial or non-judicial, and collect the Rants, Including amounts past due and unpaid, and apply the net proceeds, over and above Lender's costs, agalnsttha Indebtedness, In furtherance of this right, Lendar may require any tenant or othar user of the Property to make payments of rent or usa fees diractly to Lender, If the Rents are collected by Lender, then Grantor Irrevocably designates Lender as Grantor's attorney-in-fact to endorse Instruments racelved in payment thereof In the name of Grantor and to negotiate the same and collect the proceeds, Payments by tenants or other users to Lender In response to Lender's demend shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the demand existed, Lender may exercise Its rights under this subparagraph alther In person, by agent, or through a receiver. Appoint Receiver. Lender shall have the right to have a receiver appointed to take possasslon 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, snd to collect the Rents from the Property and apply the proceeds, over and above the cost of the receivership, against the Indebtedness, Tha receiver may serve without bond If permitted by law. Lender's right to the appointment of a receiver shall exist whether or not the apparant value of the Proparty 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 Grantor's interest In all or any part of the Property, Nonjudlcl.1 S.le, 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 permitted by applicable law, Lender may obtain a judgment for any deficiency remaining In the Indebtednass due to Lander after application of all amounts recalved from the exercise of the rights provided in this section, Tenancy .t Sufferance. If Grantor remains In possession of the Property after the Property is sold as providad above or Lender otherwise becomes entitled to possession of the Property upon default of Borrower or Grentor, Grantor shall become a tenant at sufferance of Lander or the purchaser of the Property and shall, at Lender's option, either (1) pay a reasonable rantal for the use of the Property, or (2) vacate the Property Immediately upon the demand of Lender, Othar Remedies. Lender shall hava all other rights and remedies provided in this Mortgage or the Credit Agreement or available at law or In equity. Sale of the Property. To the extent permitted by applicable law, Borrower and Grantor hereby waive any and all right to have the Property marshalled. In exercising its rights and ramedies, Lender shall be free to sell all or any part of the Property together or separately, In one sale or by separate sales. Lender shall be entitled to bid at eny public sale on all or any portion of the Property, Notice of Sale. Lender will give Grantor reasoneble 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 Qefore 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, Elecllon of Remedies. All of Lender's rights and remedies will be cumulative and may be exercised alone or together. An election by Lender to choose anyone remedy will not bar Lender from using any other remedy, If Lender decides to spenq money or to perform 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 declare Grantor In default and to exercise Lender's remedies, Attorneys' F.e.; Expenses, If Lender Institutes any suit or action to enforce any of the terms of this Mortgage. Lender shail be entitled to recover such sum as the court may adjudge reasonable as attorneys' fees at trial and upon any appeal. Whether or not any court action is involved, and to the extent not prohibited by law, all reasonable expenses Lender incurs that In Lender's opinion are necessary at any time for the protection of Its Interest or the enforcement of its rights shall become a part of the Indebtedness payable on demMd and shall bear Interest at the Credit Agreement rate from the date of the expenditure until repaid. Expenses covered by this paragraph Include, without, limitation, however subjact to any limits under applicable law, Lander's reasonable attorneys' fees and Lendar's legal expanses whather or not there Is a lawsuit, Including reasonable attorneys' faes after default and referral to an attorney not Lender's salaried employee and expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction). appeels, and any anticipated post-judgment coilectlon services, the cost of searching records, obtaining title reports (including foreclosure reports), surveyors' reports, and appraisal fees and title insurance, to the extent permitted by applicable law, Grantor also will pay any court costs, In addition to ell other sums provided by law, NOTICES, Any notice required to ba given under this Mortgage. Including without limitation any notice of default and any notice of sale shall be given In writing, and shall be effective when actually delivered, when ectuelly received by tele/aealmile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, If mailed, when deposited In the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Mortgage. All copies of notices of foreclosure from the holder of any lien which has priority over this Mortgage shall be sent to Lender's address, as shown near the beginning of this Mortgage, Any,person may chenge his or her address for notices under this Mortgage by giving formal 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, Grantor agrees to keep Lender Informed at all times of Grantor's current address, Unless otherwise provided or required by law, If there Is more than one Grantor, any notice given by Lender to any Grantor is deemed to be notice given to all Grantors. It will be Grantor's responsibility to tell tha others of the notice from Lender. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Mortgage: Amandments. What is written in this Mortgage and in the Related Documents Is Grantor's entire agreement with Lender concerning the matters covered by this Mortgage, To be effective, any change or amendment to this Mortgage must I!e 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. MORTGAGE (Continued) Page 5 Governing Law. This Mortgaga will be governed by federal law appllc.ble to Lender and, to the extent not preempted by federal I.w. the laws of the Slate 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 and Grantor under this Mortgage shall be Joint and several, end ell references to Grentor shall mean each and every Grantor, and all references to Borrower shell mean each end every Borrower. This meens 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 Lender's rights under this Mortgage unless Lender does so In writing, The fact that Lender delays or omits to exercise any right will not mean that Lender hes given up thet right. If Lender does agree In writing to give up one of Lender's rights, that does not mean Grentor will not have to comply with the other provisions of this Mortgege, Grentor also understends thet If Lender does consent to a request. that does not mean thet Grantor will not have to get Lender's consent again If the situation happens again. Grantor further understands that Just because Lender consents to one or more of Grantor's requests, that does not meen Lender will be required to consent to any of Grantor's future requests. Grantor waives presentment, demand for payment, protest, and notice of dishonor, Grantor waives all rights of exemption from execution or similar law In the Property, and Grantor agrees that the rights of Lender In the Property under this Mortgage are prior to Grantor'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 mean that the rest of this Mortgage will not be valid or enforced. Therefore, a court will enforce the rest of the provisions of this Mortgage even If a provision of this Mortgage may, be found to be Invalid or unenforceable. Merger. There shall be no merger of the Interest or eslate created by this Mortgege with any other Interest or estate In the Property et eny time held by or for the benefit of Lender In any capacity, without the written consent of Lender. Successors and Assigns. Subject to any limitations stated In this Mortgage on transfer of Grantor's Interest, this Mortgage shall be binding upon and Inure to the benefit of the parties, their successors and assigns, If ownership of the Property becomes vested In a person other than Grantor, Lender, without notice to Grantor, may deal with Grantor's successors with reference to this Mortgage and the Indebtedness by way of forbearance or extension without releasing Grantor from the obligations of this Mortgage or liability under the Indebtedness. Time Is of the Essence, Time Is of the essence In the performance of this Mortgage, Waiver of Homestead Exemption, Grantor 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 used in this Mortgage: Borrower. The word "Borrower" means Tony V Scafflde and Shay Scafflde and lncludes all co-signers and co-makers signing the Credit Agreement and all their successors and assigns. Credit AlI"eement. The words "Credit Agreement" mean the credit agreement dated July 16, 2008, with credit limit of $100,000.00 from Borrower to Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the promissory note or agreement. The maturity date of this Mortgage Is July 16, 2018. NOTICE TO GRANTOR: THE CREDIT AGREEMENT CONTAINS A VARIABLE INTEREST RATE. Environmental Laws. The words "Environmental Laws" mean eny and all state, federal end local statutes, regulations and ordinences 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 and Reauthorization Act of 1 9S6, 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. Evant 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. Existing Indebtedness. The words "Existing Indebtedness' mean the Indebtedness described In the Existing ,Liens provision of this Mortgage, ' Grantor. The word 'Grantor" means Scafflde Trust Ii dated March 10, 2003. Hazardous Substances. The words "Hazardous Substances" mean materials that, because of their quantity, concentretlon or physical, chemical or Infectious characteristics, may cause or pose a present or potential hazard to human health or the environment when Improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handled, The words "Hazardous Substances" ere used In their very broedest sense end Include without limitation any and all hazardous or toxic 6ubslances, materials or waste as defined by or listed under the Environmental Laws, The term 'Hazardous Substances" elso Includes, without limitation, petroleum and petroleum by-products or any fraction thereof and asbestos, Improvements. The word "Improvements" means all existing and future Improvements, buildings, structures, mobile homes affixed on the Real Property, facilities, additIons, replacements and other construction on the Real Property, Indebtedness. The word 'Indebtedness" means all principal, Interest, and other amounts, costs and expenses payeble under the Credit Agreement or Related Documents, together with all renewals of, extensions of, modifications of, consolidations of end substllutlons for the Credit Agreement or Related Documents and any amounts expended or edvanced by Lender to discharge Grantor's obligations or expenses Incurred by Lender to enforce Grantor's obligations under this Mortgage, together with Interest on such amounts as provided In this Mortgage. Lender. The word "Lender' means First Interstate Bank, Its successors and assigns. The words "successors or assigns" mean any person or company that acquires any Interest In the Credit Agreement. Mortgage, The word "Mortgage" means this Mortgage between Grantor and Lender, Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter owned by Grantor, end now or hereafter attached or affixed to the Real Property; together with all accessions, parts, and additions to, all replacements of, and all substllutlons for, any of such property; and together with all proceeds (Including without limitation all Insurance proceeds and refunds of premiums) from any sale or other disposition of the Property. Property. The word "Property" means collectively the Real Property and the Personal Property, Real Property, The words "Real Property" mean the real property, Interesls end rights, as further described In this Mortgage, Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgeges. deeds of trust, eecurlty deeds, collateral mortgages, and all other Instruments, egreements end documents, whether now or hereafter existing, executed In connection with the Indebtedness. Rents. The word "Rents" means all present and future rents, revenues, income, Issues, royalties, profits, and other benefits derived from the Property. GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND GRANTOR AGREES TO ITS TERMS, GRANTOR: 000901. MORTGAGE (Continued) Page 6 TRUST ACKNOWLEDGMENT State of Vvl'lOAAlý1j County of '~\()() 0,00902 This instrument was acknowledged before me on (date) by Tony V Scafflde, Trustee of Scafflde Trust II dated March 10,2003 .nd Shay Scafflde, Trustee of Scafflda Trust II dated March 10, 2003. TARA PETERSON· NOTARY PUBLIC '." COUNTY OF" '. STATE OF TETON WYOMING ,i. MY COMMISSION EXPIRES 12/7/2011 ~ A 'Æ,,~....ð"'-- My commission expires: \ Z ' I . 2 () II LASER PRO Lending, Ver, 5,41.00.004 Copr, Harland Financial Solutions, Inc, 1997, 2008. All Rights Reserved, . WY K:ICFIILPLIG03,FC TR·39240 PR-673