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HomeMy WebLinkAbout942397 RECORDATION REQUESTED BY: First Bank of Idaho, fsb, dba First Bank of the Tetons Jackson . Main Office 185 Powderhorn Lane PO Box 12860 Jackson, WY 83002 RECEIVED 9/22/2008 at 4:08 PM RECEIVING # 942397 BOOK: 705 PAGE: 348 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY WHEN RECORDED MAIL TO: First Bank of Idaho, fsb, dba First Bank of the Tetons Jackson . Main Office 18 5 Powderhom Lane PO Box 12860 Jackson, WY 83002 ûOû348 SEND TAX NOTICES TO: First Bank of Idaho, fsb, dba First Bank of the Tetons Jackson . Main Offlce 185 Powderhorn Lene PO Box 12860 Jackson. WY 83002 SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY ASSIGNMENT OF RENTS THIS ASSIGNMENT OF RENTS dated September 2, 2008, is made and executed between ALPINE COMMERCIAL DEVELOPMENT INC (referred to below as "Grantor") and First Bank of Idaho, fsb, dba First Bank of the Tetons, whose address is 185 Powderhorn Lane, PO Box 12860, Jackson, WY 83002 (referred to below as "Lender"). ASSIGNMENT. For valuable consideration, Grantor hereby assigns, grants a continuing security interest In, and conveys to Lender all of Grantor's right, title, and interest in and to the Rents from the following described Property located In Lincoln County, State of Wyoming: LOT FOUR (4) OF THE SNAKE RIVER JUNCTION FIRST FILING SUBDIVISION, RECORDED ON DECEMBER 15, 2006, AT DOCUMENT NUMBER 925355, MAP NUMBER 294-A, IN THE OFFICE OF THE CLERK, LINCOLN COUNTY, WYOMING The Property or its address is commonly known as 9 Sunbeam Drive, Alpine, WY 83128. The Property tax identification number Is 12-3718-29-2-00-019.00. THIS ASSIGNMENT IS GIVEN TO SECURE (1) PAYMENT OF THE INDEBTEDNESS AND (2) PERFORMANCE OF ANY AND ALL OBLIGATIONS OF GRANTOR UNDER THE NOTE, THIS ASSIGNMENT, AND THE RELATED DOCUMENTS. THIS ASSIGNMENT IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: PAYMENT AND PERFORMANCE. Except as otherwise provided in this Assignment or any Related Documents, Grantor shall pay to Lender all amounts secured by this Assignment as they become due, and shall strictly perform all of Grantor's obligations under this Assignment. Unless and until Lender exercises Its right to collect the Rents as provided below and so long as thera Is no default under this Assignment, Grantor may remain In possession and control of and operate and manage the Proparty and collect the Rents, provided that the granting of the right to collact the Rents shall not constitute Lender's consent to the use of cash collateral in a bankruptcy proceeding. GRANTOR'S REPRESENTATIONS AND WARRANTIES. Grantor warrants that; Ownership. Grantor Is entitled to receive the Rents free and clear of all rights, loans, liens, encumbrances, and claims except as dlsclosad to and accepted by Lender In wrlllng. Right to Assign. Grantor has the full right, power and authority to enter Into this Assignment and to assign and convey the Rents to Lendar. No Prior Assignment. Grantor has not previously assignad or conveyed the Rents to any other person by any Instrument now in force. No Further Transfer. Grantor will not sell, assign, encumber, or otherwise dispose of any of Grantor's rights in the Rents except as provided In this Assignment. LENDER'S RIGHT TO RECEIVE AND COLLECT RENTS. lender shall have the right at any time, and even though no defeult shall have occurred under this Asslgnmant, to collect and receive the Rants. For this purpose. Lender is hereby given and granted the following rights, powers and authority: Notice to Tenants. lender may send notices to any and all tenants of the Property advising them of this Assignment and directing all Rents to be paid directly to Lender or Lander's agent. Enter the Property. lender may enter upon and take possession of the Property; demand, collect and receive from the tanants or from any other persons liable therefor, all of the Rents; institule and carryon all legal proceedings necessary for the protection of the Property, including such proceedings as may be necessary to recover possession of the Property; collect the Rents and remove any tenant or tenants or other persons from the Property. Maintain the Property. Lender may enter upon the Property to maintain the Property and keep the same In repair; to pay the costs thereof and of all services of all employees, including their equipment, and of all continuing costs and expenses of maintaining the Property in proper repair and condition, and also to pay all laxes, assessments and water utilities, and the premiums on fire and other insurance effected by Lender on the Property. Compliance with laws. Lendar may do any and all things to execute and comply with the laws of tha State of Wyoming and also all other laws, rules, orders, ordinances and requirements of all other governmental agencies affecting the Property. lease the Property. lender may rent or lease the whoie or any part of the Property for such tarm or terms and on such conditions as Lender may deem appropriate. Employ Agents. Lender may engage such agent or agents as Lender may deem appropriate, either in lender's name or in Grantor's name, to rent and manage the Property, Including the collection and application of Rents. Other Acts. Lander may do all such olher things and acts with raspect to the Property as Lender may deem appropriate and may act exclusively and solely In tha place and stead of Grantor and to have all of the powers of Grantor for the purposes stated above. No Requirement to Act. Lender shall not be required to do any of the foregoing acls or things, and the fact that lender shall have performed one or more of the foregoing acts or things shall not require Lender to do any other specific act or thing. APPLICATION OF RENTS. All costs and expenses Incurred by lender In connection with the Property shall be for Grantor's account and Lender may pey such costs and expenses from the Rents. lender, in Its sole discretion, shall determine the application of any and all Rents received by It; however. any such Rents received by lender which are not applied to such costs and expenses shall be applied to the Indebtedness. All expenditures made by lender under this Assignment and not reimbursed from Ihe Rents shall become a part of the Indebtedness secured by this Assignment, and shall be payable on demand, with Interest at the Note rate from date of expenditure until paid. FUll PERFORMANCE. If Grantor pays all of the Indebtedness when due and otherwise performs all the obligations Imposed upon Grantor under this Assignment, the Note, and the Related Documents, lender shall execute and deliver to Grantor a suitable satisfection of this Assignment and suitable statements of termination of any financing statement on file evidencing lender's security interest in the Rents and the Property. Any termination fee required by law shall be paid by Granlor, If permitted by applicable law. lENDER'S EXPENDITURES. If any action or proceeding is commenced that would materially affect lender's Interest in the. Property or If Grantor Loan No: 494029945 ASSIGNMCI'4 I vr RENTS (Continued) Page 2 falls to comply with any provision of this Assignment or any Related Documents, including but not limited to Grantor's failure to discharge or oo,n'349 pay when due any amounts Grantor is required to discharge Dr pay under this Assignment or any Related Documents, lender on Grantor's V behalf may (but shall not be obligated to) take any action that lender deems appropriate, Including but not limited to discharging or paying all taxes, liens, security Interests, encumbrances and other claims, at any time levied Dr placed on the Rents or the Property and paying all costs for Insuring, maintaining and preserving the Property. All such expenditures Incurred or paid by lander for such purposes will then bear Interest at tha rate charged under the Note from the date Incurred or paid by lender to the date of repayment by Grantor. All such expenses will become a part of the Indebtedness and, at lender's option, will (A) be payable on demand; (S) be added to the balance of the Note and be apportioned among and be payable with any Installment payments to become due during either (1) the term of any applicable Insurance policy; or (2) the remaining term of the Note; or (C) be treated as a balloon payment which will be due and payable at the Note's maturity, The Assignment also will secure payment of these amounts. Such right shall be In addition to all other rights and remedies to which lender may be entitled upon Default. DEFAULT. Each of the following, at lender's option, shall constllute an Evenl of Default under this Assignment: Payment Default. Grantor falls to make any payment when due under the Indebtedness. Other Defeults. Grantor fails to comply with or to perform any other term, obligation, covenant or condition contained in this Assignment Dr In any of the Related Documents or to comply with or to perform any term. obligation, covenant or condition contained In any other agreement between lender and Grantor. Default on Other Payments. Failure of Granlor within the time required by this Assignment to make any payment for taxes or Insurance, or any other payment necessery to prevent filing of or 10 effect discharge of any lien. Default In Favor of Third Parties. Any guarantor Dr Grantor defauits under any loan, extension of credit, security agreement, purchase Dr sales agreement, or any other agreement, ,in favor of any other creditor or person that may materially affect any of any guarantor's or Grantor's property or ability to perform their respective obligations under this Assignment or any of the Related Documents. False Statements. Any warranty, representation or statement made or furnlshad to lender by Grantor or on Grantor's behalf under this Assignment or the Related Documents Is false or misleading In any material respect, either now or at the time made Dr furnished or becomes false or misleading at any time thereafter. Defective Collateraltzatlon. This Assignment Dr any of the Related Documents ceases to be In full force and effect (Including failure of eny collateral document to create a valid and perfecled security interesl Dr lien) al any time and for any reason. Insolvency. The dissolution Dr termination of Grantor's existence as a going business, the Insolvency of Grantor, the appointment of a receiver for any part of Grantor's property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy Dr Insolvency laws by or against Grantor. Creditor or Forfeiture Proceedings. Commencemenl of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Grantor or by any govemmental agency against the Rents Dr any property securing the Indebtedness. This includes a gamlshment of any of Grantor's accounts, including deposit accounts, with lender. However, this Event of Default shell not apply if there Is a good felth dispute by Grantor es to the validity or reasonableness of the claim which Is the basis of the creditor or forfeiture proceeding and If Grantor gives lender written notice of the creditor Dr forfeiture proceeding and deposits with lender monies or a surety bond for the creditor or forfeiture proceeding, In an amount determined by lender, in its sole discretion, as being an adequate reserve Dr bond for the dispute. Property Damage or loss. The Property Is lost, slolen, substantially damaged, sold, Dr borrowed against Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the Indebtedness or any Guaranlor dies or becomes incompetent, or revokes or disputes the valldlly of, or liability under, any Guaranty of the Indebtedness. Adverse Change. A material adverse change occurs In Granlor's financial condition, or lender believes the prospect of payment or performance of the Indebtedness is impaired. Insecurity. lender In good faith believes itself Insecure. Cure Provisions. If any default. other lhan a default in payment Is curable end if Grantor has not been given a notice of a breach of the same provision of this Assignment within the preceding twelve (12) months. it may be cured if Grantor. after receiving written notice from lender demanding cure of such default: (1) cures the default within fifteen (15) days; or (2) if the cure requires more than fifteen (15) days, Immediately initiates steps which lender deems In lender's sole discretion to be sufficient to cu.re the default and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of sny Evenl of Default and at any time thereafter, lender may exercise anyone Dr more of the fOllowing rights and remedies, in addition to any olher rights Dr remedies provided by law; Accelerate Indebtedness. lender shall have the right at Its option without notice to Grantor to declare the entire Indebtedness Immediately due and payable, Including any prepayment penalty that Grantor would be required to pay. Collect Rents. lender shall heve the right without notice 10 Grantor, to take possession of the Property end collect the Rents, Including amounts past due and unpaid, and apply the net proceeds, over and above lender's cosls, against the Indebtedness. In furtherance of this right, lender shall have all the rights provided for in the lender's Right to Receive and Collecl Rents Section, above. If the Rents are collected by lender, then Grentor Irrevocably designates Lender as Grantor's attorney-In-fact to endorse Instruments received In payment thereof In the name of Grentor and to negotiate the same and collect the proceeds. Payments by tenants Dr other users 10 Lender In response to lender's demand shall satisfy the obligations for which the payments are made. whether Dr not any proper grounds for the demand existed. lender may exercise Its rights under this subparagraph ellher in person, by agent, Dr through a receiver. Appoint Receiver. lender shall have the right to have a receiver appointed to take possession of all or eny part of the Property, with Ihe power to protect and preserve lhe Property, to operate the Property preceding foreclosure or sale, and to collect the Rents from the Property and apply the proceeds, over and above the cost of the receivership, against the Indebtedness. The receiver may serve without bond If permilled by law. lender's right to the appointment of a receiver shall exist whether Dr not the apparent value of the Property exceeds the Indebtedness by a substantial amount. Employment by lender shall not disqualify a person from serving as a receiver. Other Remedlas. lender shall have all other rights and remedies provided In Ihls Assignment or the Note Dr by law. Elecllon of Remedies. Election by lender to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Grantor under this Assignment, after Grantor's failure to perform, shall not affect lender's right to declare a default and exercise its remedies. Attorneys' Fees; Expenses. If Lender institutes any suit or action to enforce any of the terms of this Assignment, lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys' fees at trial and upon any appeal. Whether or not any court action is Involved, and to the extent not prohibited by law, all reasonable expenses lender Incurs that in Lende~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 demand and shall bear Interest at the Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph Include. without limitation, however subject to any limits under applicable law, lender's reasonable attorneys' fees and lender's lagal expenses whether or not there Is a lawsuit, Including reasonable attorneys' fees and expenses for benkruptcy proceedings (Including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-Judgment collection services, the cost of searching records, obtaining title reports (Including foreclosure reports), surveyors' reports, and eppralsal fees. title Insurance, and fees for the Trustee, to the extent permitted by applicable, law. Grantor also will pay any court costs, in addition to all other sums provided by law. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Assignment: Amendments. This Assignment, together wllh any Related Documents, constitutes the entire understending and agreement of lhe parties es to the matters set forth In this Assignment. No alteration of or amendmenl to this Assignment shall be effective unless given in writing end signed by the party Dr parties sought to be charged Dr bound by the alteration Dr amendment. Caption Headings. Caption headings In this Assignment are for convenience purposes only and are not to be used to Interpret Dr define the provisions of this Assignment. Governing law. This Assignment will be govemed by federal law applicable to lender and, to the extent not preempted by federal law. the laws of the State of Wyoming without regard to Its conflicts of law provisions. This Assignment has been accepted by lender In the State of Wyoming. Loan No: 494029945 A::»::»Il:íNMI:N I UI" KI:N I» (Continued) Page 3 Merger. There shell be no merger of Ihe Interest or estata creatad by this assignment with any other Interest or eslata In the Property at any tlma hald by or for tha benaflt of Lender in any capacity, without the written consent of Lender. '>'~O "':] 1':'0 Interpretation. (1) In all cases where there is more than one Borrower or Grantor, then all words used in this Assignment In the singular \.: V .;,) > shall be deemed 10 have been used In the plural where the context and construction so require. (2) If more than one person signs this Assignment as "Grantor," the obligations of each Grantor are joint and several. This means that If Lender brings a lawsuit, Lender may sue eny one or more of the Grantors. If Borrower and Grantor are not the same person, Lender need not sue Borrower first, and that Borrower need not be joined In any lawsuit. (3) The names given to paragraphs or sections In this Assignment are for convenience purposes only. They ere not to be used to Interpret or define the provisions of this Assignment. No Waiver by Lender. Lender shall not be deemed 10 have waived any rights under this Assignment unless such watver Is given In writing and signed by Lender. No delay or omission on the part of Lander In axarclsing any right shall oparate as a walvar of such right or any othar right. A waiver by Lendar of a provision of Ihis Assignment shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Assignment. No prior waiver by Lender, nor any course of dealing between Lender and Grantor, shell constitute a waiver of any of Lender's rights or of any of Grantor's obligations as to any future transactions, Whenever Ihe consent of Lender is required under this Assignment, the granting of such consent by Lender In any instance shall not constitute continuing consant to subsaquent Instances where such consent Is required and in all cases such consent may be granted or withheld In the sole discretion of Lender. Notices. Any notice required to be given under this Assignment shall be given in writing. and shall be effective when actually delivered, when actually received by telefacslmlle (unless otherwisa required by law), whan deposited with a nationally recognized overnight courier, or, If mailed, when deposited In the United States mall, as first class, certified or registered mall postage prepaid, directed to the eddresses shown near the beginning of this Assignment. Any party may change Its address for notices under this Assignment by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, Grantor agrees to keep Lender Informed at all times of Grantor's current address. Unless otherwise provided or required by law, If there is more than one Grantor, any notice given by Lender to any Grantor Is deemed to be notice given to all Grantors. Powers of Attorney. The various agencies and powers of attorney conveyed on Lender under this Assignment are granted for purposas of sacurlty and may not be revoked by Grantor until such time as the same are renounced by Lender. Severeblllty. If a court of competent jurisdiction finds any provision of this Assignment to be Illegal, Invalid, or unenforceable as to any circumstance, that finding shall not make the offending provision Illegal, Invalid, or unenforceable as to any other circumstance. If feasible, the offending provision shall be considered modified so that It becomes legal, valid and enforceable. If the offending provision cannot be so modified. It shall be considered deleted from this Assignment. Unless otherwise required by law, the illegality, invalidity. or unenforceablllty of any provision of this Assignment shall not affect the legality, validity or enforceability of any other provision of this Assignment. Successors and Assigns. Subject to any limitations stated in this Assignment on transfer of Grantor's Interest, this Assignment shall be binding upon and Inure to the benefit of the parties, thair successors and assigns. If ownership of the Proparty becomas vested In a person other than Grantor, Lendar, without notlca to Grantor, may daal with Grantor's successors with reference to this Asslgnmant and tha Indebtedness by way of forbearance or ax tension without relaasing Grantor from the obligations of Ihls Assignment or liability under the Indabtedness. Time Is of the Essence. Time Is of the essence In the performance of Ihis Assignmant. Waiver of Homestead Exemption. Grantor haraby releasas and waives all rights and benefits of Ihe homestead exemption laws of Ihe State of Wyoming as to all Indebtedness secured by this Assignment. Waiver of Right of Redemption. NOTWITHSTANDING ANY OF THE PROVISIONS TO THE CONTRARY CONTAINED IN THIS ASSIGNMENT, GRANTOR HEREBY WAIVES ANY AND ALL RIGHTS OF REDEMPTION FROM SALE UNOER ANY ORDER OR JUDGMENT OF FORECLOSURE ON GRANTOR'S BEHALF AND ON BEHALF OF EACH AND EVERY PERSON, EXCEPT JUDGMENT CREDITORS OF GRANTOR, ACQUIRING ANY INTEREST IN OR TITLE TO THE PROPERTY SUBSEQUENT TO THE DATE OF THIS ASSIGNMENT. DEFINITIONS. The following capitalized words and lerms shall have the following meanings when used in this Assignment. Unlass specifically stated 10 the contrary, ell references 10 dollar amounts shall mean amounls in lawful money of the United States of America. Words and terms used In the singular shall include the plural, and the plural shell include the singular, as the context may require. Words end terms not otherwise defined In this Assignment shall have the meanings attributed to such terms In Ihe Uniform Commercial Code: Assignment. The word "Assignment" means this ASSIGNMENT OF RENTS, as this ASSIGNMENT OF RENTS mily be amended or modified from time to time, together with all exhibits and schedules altached to this ASSIGNMENT OF RENTS from time to titne. Borrower. The word "Borrower" means Alpine Commercial Devalopment, Inc.. Default. The word "Default" means the Default sel forth In this Assignment In the section titled "Default", Event of Default. The words "Event of Default" mean any of the events of default set forlh in this Assignment in the default section of this Assignment. Grantor. The word "Granlor" means Alpine Commercial Development, Inc.. Guarentor. The word "Guerantor" means any guarantor, surety, or accommodalion party of any or all of Ihe Indebtedness. Guaranty. The word "Guaranly" means the guaranty from Guarantor to Lender, Including wlthoulllmllatlon a guaranty of all or part of the Note. Indebtedness. The word >"Indebtedness" means all principal, Interest, and other amounts, cosls and expenses payable under the Note or Related Documents, together with all renewals of, extensions of, modifications of, consolidations of end substitutions for the Note or Related Documents end any amounts expended or advanced by Lander to dlscharga Grantor's obligations or eXþenses Incurred by Lender to enforce Grantor's obligations under this Assignment, together with Interest on such amounts as provided In this Assignment. Lender. The word "Lender" means First Bank of Idaho, fsb, dba First Bank of tha Tetons, its successors and assigns. Note. The word "Note" meens the promissory note daled Septamber 2,2008, in the original principal amount of $610,000.00 from Grantor to lender, together with all renewals of, extensions of. modifications of, refinancings of, consolidations of, end substitutions for the promissory note or agreement. Property. The word "Property" means all of Grantor's right, titie and interest In and to alllhe Property es described In the "Assignment" section of this Assignment. Related Documents. The words "Related Documents" mean all promissory noles, credit agreements, loan agreements, envlronmenlal agreements, guaranties, security egreements, mortgeges, deeds of trust, security deeds, collateral mortgeges, and ell other instruments, agreements and documents, whether now or hereefter exlsllng, executed In connection with the Indebledness. Rents. The word "Rents" means all of Grantor's present and future rights, title and interest in, to and under any and all present and future leases, Including, without limitation, all rents, revenue, income, Issues, royalties, bonuses, accounls receivable, çash or security deposits, advence rentals. profits and proceeds from the Properly, and othar payments and benefits derived or to be derived from such leeses of every kind and nature, whether due now or laler, including without limitation Grantor's right to enforce such leases and to receive and collect payment and proceeds thereunder. THE UNDERSIGNED ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS ASSIGNMENT, AND NOT PERSONALLY BUT AS AN AUTHORIZED SIGNER, HAS CAUSED THIS ASSIGNMENT TO BE SIGNED AND EXECUTED ON BEHALF OF GRANTOR ON SEPTEMBER 2, 2008. Loan No: 494029945 ASSIGNl'm:rll vF RENTS (Continued) Page 4 GRANTOR: 1Âø. OOô:JS1 CORPORATE ACKNOWLEDGMENT Stale of ~bMi t'\ fj County of ~+O f) This instrument was acknowladgad bafore me on \~ ~I\-J. ,ltJO ~dala) by Scott Shepherd, President of Alpine Commercial Development, fne.. ~ ..~ My commission expires: ~ i.f !w t I I . LASER PRO Lending, Ver. 5.41.00.004 Cope. Harland Financial Solullons. Inc. 1997, 2008. N:\CONVERTlCFIILPL\G14.FC TR-6622 PR-RETL All Rights Reserved. - Wy