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HomeMy WebLinkAbout942802 it RECORDATION REQUESTED BY: Firsl Bank of Idaho, fsb, dba Firsl Bank of the Telons Jackson - Main Office 1 85 Powderhorn Lane PO Box 1 2860 Jackson, WY 83002 RECEIVED 10/10/2008 at 11 :23 AM RECEIVING # 942802 BOOK: 706 PAGE: 708 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY WHEN RECORDED MAIL TO: Firsl Bank of Idaho, fsb, dba First Bank of Ihe Telons Jackson - Main Office 185 Powderhorn Lane PO Box 1 2860 Jackson, WY 83002 SEND TAX NOTICES TO: Firsl Bank of Idaho, fsb, dba First Bank of the Telons Jackson - Main Office 185 Powderhorn Lane PO Box 12860 Jackson, WY 83002 ÚOû70B SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY 1 '-.> CONSTRUCTION MORTGAGE THIS MORTGAGE dated October 7, 2008, is made and executed between Daniel A. Edwards, a single man (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"). GRANT OF MORTGAGE. For valuable consideration, Grantor mortgages and conveys 10 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, righls of way, and appurtenances; all water, waler rights, walercourses and ditch rights (including slock in ulilities with ditch or irrigation rights); and all other rights, royalties, and profits relatinq to the real property, including without limitation all minerals, oil, gas, geothermal and similar matters, (the "Real Property") located In Lincoln County, State of Wyoming: LOT FIVE (5) OF THE DOUBLE K MEADOWS SUBDIVISION RECORDED SEPTEMBER 14, 2005 AS INSTRUMENT NO. 911843 AND MAP NO. 241-B, IN THE OFFICE OF THE CLERK, LINCOLN COUNTY, WYOMING The Real Property or its address is commonly known as 90 Silver Spur Trail, Etna, WY 83118. The Real Property tax identification number is 12-3619-34-4-00-109.00. Grantor presently assigns to Lender all of Grantor's right, title, and interest in and to all present and fulure leases of the Property and all Renls from the Property. In addition, Grantor grants to Lender a Uniform Commercial Code security interest in Ihe 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 ANY AND ALL OBLIGATIONS UNDER THE NOTE, THE RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, 15 ALSO GIVEN TO SECURE ANY AND ALL OF GRANTOR'S OBLIGATIONS UNDER THAT CERTAIN CONSTRUCTION LOAN AGREEMENT BElWEEN GRANTOR AND LENDER OF EVEN DATE HEREWITH. ANY EVENT OF DEFAULT UNDER THE CONSTRUCTION LOAN AGREEMENT, OR ANY OF THE RELATED DOCUMENTS REFERRED TO THEREIN, SHALL ALSO BE AN EVENT OF DEFAULT UNDER THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: PAYMENT AND PERFORMANCE. Excepl as otherwise provided In Ihis Mortgage, Grantor shall pay 10 Lender all amounls secured by this Mortgage as they become due and shall strictly perform all of Grantor's obligalions under this Mortgage. CONSTRUCTION MORTGAGE. This Mortgage is a "conslructlon mortgage" for the purposes of Sections 9-334 and 2A-309 of Ihe Uniform Commercial Code, as those sections have been adopled by Ihe Slate of Wyoming. POSSESSION AND MAINTENANCE OF THE .PROPERTY. Grantor agrees that Grantor's possession and use of the Property shall be governed by the following provisions: Possession and Use. Unlil the occurrence of an Event of Default, Grantor may (1) remain in possession and conlrol of Ihe Property; (2) use, operate or manage the Property; and (3) collect the Rents from the Property. Duty to Maintain. Grantor shall maintain the Property in tenantable 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 Environmental Laws, (b) any use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, aboul or from the Property by any prior owners or occupanls 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 10 and acknowledged by Lender in writing, (a) neilher Grantor nor any 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 wilh all applicable federal, state, and local laws, regulations and ordinances, including without limitation all Environmental Laws. Grantor aulhorizes Lender and its agents 10 enter upon the Property to make such inspeclions and lesls, at Granlor's expense, as Lender may deem appropriale to determine compliance of the Property with this section of the Mortgage. Any inspeclions 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 Granlor or 10 any other person. The representations and warranties contained herein are based on Grantor's due diligence in invesligating the Property for Hazardous Subslances. Grantor hereby (1) releases and waives any future claims against Lender for indemnity or contribution in the event Granlor becomes liable for cleanup or olher costs under any such laws; and (2) agrees 10 indemnify, defend, and hold harmless Lender againsl 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 seclion of the Mortgage or as a consequence of any use, generation, manufaclure, storage, disposal, release or threatened release occurring prior to Grantor's ownership or'interest in the Property, whelher or nol the same was or should have been known to Grantor. The provisions of this seclion of the Mortgage, including the obligation to indemnify and defend, shall survive the paymenl of the Indebtedness and the satisfaction and reconveyance of the lien of this Mortgage and shall not be affected by Lender's acquisition of any interest in the Property, whether by foreclosure or otherwise. Nuisance, Waste, Grantor shall nol cause, conduct or permil any nuisance nor commil, 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 10 remove, any timber, minerals (including oil and gas), coal, clay, scoria. soil, gravel or rock products withoul Lender's prior written consent. Removal of Improvements. Grantor shall not demolish or remove any Improvements from the Real Property without Lender's prior written consent. As a condition to the removal of any Improvemenls, Lender may require Granlor to make arrangements satisfactory to Lender to replace such Improvemenls with Improvements of al least equal value. Lender's Righi 10 Enter. Lender and Lender's agents and representalives may enter upon the Real Property at all reasonable times to attend to Lender's interesls and to inspect the Real Property for purposes of Grantor's compliance with the terms and conditions of this Mortgage. Compliance with Governmental Requirements. Grantor shall promptly comply with all la~s, ordinances, and regulations, now or hereafter in effecI, of all governmental authorities applicable to the use or occupancy of the Property, including without limitation, the Americans With Disabilities Act. Grantor may contest in good faith any such law, ordinance, 01 regulation and withhold compliance during any Loan No: 494030166 MORTGAGE (Continued) OOô709 Page 2 proceeding, including appropriale 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 Ihe Property are not jeopardized. Lender may require Grantor to post adequate securily or a surety bond, reasonably satisfactory to Lender, to protecl Lender's Interest. Duty to Protect. Granlor agrees neither to abandon or leave unattended the Property. Grantor shall do all olher acts, In addition to those acts sel forlh above In this section, which from the character and use of Ihe Property are reasonably necessary 10 prolecl and preserve the Property. CONSTRUCTION LOAN. If some or all of Ihe proceeds of Ihe loan creating the Indebtedness are 10 be used to conslruct or complele conslruclion of any Improvements on Ihe Property, Ihe Improvemenls shall be compleled no laler than Ihe maturity dale of Ihe Note (or such earlier date as Lender may reasonably establish) and Grantor shall pay in full all cosls and expenses in connection with the work. lender will disburse loan proceeds under such terms and condilions as Lender may deem reasonably necessary 10 insure Ihal the interest crealed by Ihis Mortgage shall have priority over all possible liens, including Ihose of malerial suppliers and workmen. Lender may require, among olher Ihings, that disbursement requests be supported by receipled bills, expense affidavils, waivers of liens, construclion progress reports, and such other documentation as lender may reasonably request. DUE ON SALE - CONSENT BY LENDER. Lender may, al Lender's option, declare immediately due and payable all sums secured by this Mortgage upon the sale or transfer, without Lender's prior written consent, of all or any part of the Real Property, or any interest in the Real Property. A "sale or Iransfer" means the conveyance of Real Property or any right, litle or interesl In the Real Property; whether legal, beneficial or equitable; whether voluntary or involuntary; whether by outright sale, deed, installmenl sale contract, land contract, contract for deed, leasehold Interest with a lerm greater than Ihree (3) years, lease-option conlract, or by sale, assignment, or Iransfer of any beneficial inleresl In or to any land Irusl holding title to Ihe Real Property, or by any other method of conveyance of an interest in the Real Property. However, this option shall not be exercised by Lender if such exercise is prohibited by federal law or by Wyoming law. TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property are part of this Mortgage: Payment. Grantor shall pay when due (and in all events prior to delinquency) all taxes, payroll taxes, special taxes, assessments, waler charges and sewer service charges levied against or on account of the Property, and shall pay when due all claims for work done on or for services rendered or material furnished to Ihe Property. Grantor shall maintain the Property free of any liens having priority over or equal to Ihe interesl of Lender under this Mortgage, except for those liens specifically agreed to in wriling by Lender, and except for Ihe lien of laxes and assessmenls nol due as further specified in the Right 10 Contest paragraph. Righi 10 Contest. Grantor may withhold payment of any lax, assessment, or claim in connection with a good faith dispule over Ihe obligation to pay, so long as lender's interest in the Property is not jeopardized. If a lien arises or is filed as a result of nonpayment, Grantor shall within fifteen (15) days after the lien arises or, if a lien is filed, within fifteen (15) days after Grantor has notice of the filing, secure the discharge of the lien, or if requesled by Lender, deposit with Lender cash or a sufficiénl corporate surely bond or olher security salisfaclory to Lender in an amount sufficlenl 10 discharge Ihe lien plus any cosls and reasonable attorneys' fees, or other charges Ihat could accrue as a result of a foreclosure or sale under the lien. In any conlest, Grantor shall defend itself and Lender and shall satisfy any adverse judgment before enforcement againsl the Property. Grantor shall name Lender as an additional obligee under any surety bond furnished in Ihe contest proceedings. Evidence of Payment. Grantor shall upon demand furnish to Lender satisfactory evidence of paymenl of the taxes or assessments and shall authorize the appropriate governmental official to deliver to Lender at any time a written statemenl of the taxes and assessments against the Property. Notice of Conslructlon. Grantor shall notify lender al leasl fifteen (15) days before any work Is commenced, any services are furnished, or any male rials are supplied to the Property, if any mechanic's lien, materialmen's lien, or other lien could be asserted on accounl of Ihe work, services, or materials. Grantor will upon request of Lender furnish to Lender advance assurances salisfactory to Lender Ihal Grantor can and will pay Ihe cosl of such improvemenls. PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the Property are a part of this Mortgage: Mainlenance of Insurance. Grantor shall procure and maintain policies of fire insurance wilh standard exlended coverage endorsements on a replacement basis for the full insurable value covering all Improvements on the Real Property in an amount sufficienl to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of Lender. Grantor shall also procure and maintain comprehensive general liability insurance in such coverage amounts as Lender may request with Lender being named as additional insureds in such liability insurance policies. Additionally, Grantor shall maintain such other insurance, including bul not limited to hazard, business interruption and boiler insurance as Lender may require. 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 conlaining a stipulation that coverage will not be cancelled or diminished without a minimum of fifteen (15) 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 acI, omission or default of Grantor or any other person. Should Ihe Real Property be located in an area designated by the Director of the Federal Emergency Managemenl Agency as a special flood hazard area, Grantor agrees to obtain and maintain Federal Flood Insurance, if available, within 45 days after notice is given by Lender thai the Property is located in a special flood hazard area, for the full unpaid principal balance of the loan and any prior liens on the property securing the loan, up to the maximum policy limits set under the National Flood Insurance Program, or as otherwise required by Lender, and to maintain such insurance for the term of the loan. Application of Proceeds. Grantor shall promptly notify Lender of any loss or damage to the Property. Lender may make proof of loss if Grantor fails to do so within fifteen (15) days of the casualty. Whether or not Lender's security is impaired, Lender may, at Lender's election, receive and retain Ihe proceeds of any insurance and apply the proceeds to Ihe reduction of the Indebledness, payment of any lien affecting Ihe Property, or the resloration and repair of Ihe Property. If Lender elects to apply Ihe proceeds 10 restoration and repair, Grantor shall repair or replace the damaged or destroyed Improvements in a manner satisfactory 10 lender. Lender shall, upon satisfactory proof of such expenditure, payor reimburse Grantor from the proceeds for the reasonable cost of repair or restoration If Grantor is not in default under this Mortgage. Any proceeds which have not been disbursed within 180 days after their receipt and which Lender has not committed to the repair or restoration of the Property shall be used 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 paymenl in full of the Indebtedness, such proceeds shall be paid to Granlor as Grantor's ¡nlerests may appear. LENDER'S EXPENDITURES. If any action or proceeding Is commenced thai would materially affect Lender's inlerest in Ihe Property or if Granlor fails to comply with any provision of Ihis Mortgage or any Relaled Documents, including bul not limited to Grantor's failure 10 discharge or pay when due any amounts Grantor is required 10 discharge or pay under this Mortgage or any Relaled Documents, Lender on Granlor's behalf may (but shall not be obligated to) take any action Ihal Lender deems appropriate, including but not limited 10 discharging or paying all laxes, liens, security interests, encumbrances and other claims, at any time levied or placed on the Property and paying all cosls for insuring, maintaining and preserving the Property. All such expenditures incurred or paid by Lender for such purposes will then bear interesl at the rate charged under the Note from Ihe date incurrFJd or paid by Lender 10 Ihe dale of repaymenl by Grantor. All such expenses will become a part of the Indebledness and, at Lender's option, wili (AI be payable on demand; (8) be added to ¡he balance of the Note and be apportioned among and be p¡¡yable W\th 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 Mortgage 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. W~RRANTY; DEFENSE OF TITLE, The following provisions relating to ownership of the Property 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, free and clear of all liens and encumbrances other than those set forth in the Real Property description or in any title insurance policy, title report, or final title opinion issued in favor of, and accepted by, Lender in connection with this Mortgage, and (b) Grantor has the full right, power, and authority to execute and deliver this Mortgage to Lender. Defense of Title. Subject 10 the exception in the paragraph above, Grantor warrants and will forever defend the litle to the Property against the lawful claims of all persons. In the event any action or proceeding is commenced that questions Grantor's title or the Interest of Lender under this Mortgage, Grantor shall defend the action at Grantor's expense. Grantor may be Ihe nominal party In such proceeding, but Lender shall be entitled to participate In Ihe proceeding and to be represenled in the proceeding by counsel of Lender's own choice, and Grantor will deliver, or cause to be delivered, to Lender such instruments as Lender may request from time to time to permit such participation. Compliance Wilh Laws. Grantor warrants that the Property and Grantor's use of the Property complies wilh all existing applicable laws, Loan No: 494030166 MORTGAGE (Continued) 00ü71.0 Page 3 ordinances, and regulalions of governmental aU1horities. Survival of Represenlalions and Warranties. All represenlations, warranlies, and agreements made by Granlor in this Mortgage shall survive Ihe execulion and delivery of Ihis Mortgage, shall be continuing in nalure, and shall remain in full force and effect unlil such time as Granlor's Indebtedness shall be paid in full. ¡ CONDEMNATION. The following provisions relating \0 condemnation proceedings are a part of this Mortgage: Proceedings. If any proceeding in condemnatiJn is filed, Grantor shall promptly notify lender in writing, and Grantor shall promptly take such steps as may be necessary to defend th~ action and obtain the award. Grantor may be Ihe nominal party in such proceeding, but lender shall be enlitled 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 10 lender such instrumenls and documentalion as may be requesled by lender from lime 10 lime 10 permil such participation. Application of Net Proceeds. If all or any part of Ihe Property is condemned by eminent domain proceedings or by any proceeding or purchase in lieu of condemnalion, lender may al its election require thai all or any portion of Ihe nel proceeds of Ihe award be applied 10 the Indebtedness or the repair or restoration of Ihe Property. The nel proceeds of the award shall mean Ihe award after payment of all reasonable cosls, 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: Currenl Taxes, Fees and Charges. Upon request by lender, Grantor shall execute such documents in addition 10 this Mortgage and take whalever other action is requesled by lender to perfect and continue lender's lien on the Real Property. Granlor shall reimburse lender for all laxes, as described below, together with all expenses incurred in recording, perfecting or conlinuing 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 10 which this section applies: (1) a specific lax upon Ihis Iype of Mortgage or upon all or any part of the Indebledness secured by Ihis Mortgage; (2) a specific lax on Grantor which Grantor is authorized or required 10 deduct from paymenls on the Indebledness secured by this type of Mortgage; (3) a tax on this type of Mortgage chargeable againsl Ihe lender or the holder of the Nole; and (4) a specific lax on all or any portion of Ihe Indebledness or on paymenls of principal and interesl made by Granlor. Subsequent Taxes. If any tax to which this section applies is enacted subsequenl 10 the dale of Ihis Mortgage, this evenl shall have Ihe same effect as an Event of Default, and lender may exercise any or all of its available remedies for an Event of Default as provided below unless Grantor either (1) pays the tax before it becomes delinquent, or (2) contesls Ihe lax as provided above in the Taxes and Liens section and deposits with lender cash or a sufficient corporate surety bond or other security satisfactory 10 lender. SECURiTY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to this Mortgage as a security agreemenl are a part of this Mortgage: Securily Agreement. This instrument shall constitule a Security Agreement to Ihe extenl any of the Property conslitutes fixtures, and lender shall have all of the rights of a secured party under the Uniform Commercial Code as amended from time to time. Securily Inlerest. Upon request by lender, Granlor shall take whatever action Is requested by lender to perfect and continue lender's security interesl In the Rents and Personal Property. In addition to recording this Mortgage in the real property records, lender may, at any time and without further authorization from Grantor, file executed counterparts, copies or reproductions of this Mortgage as a financing slalement. Grantor shall reimburse lender for all expenses incurred in perfecting or continuing Ihis security interest. Upon default, Grantor shall not remove, sever or delach Ihe Personal Property from the Property. Upon defaull, Grantor shall assemble any Personal Property nol affixed 10 the Property in a manner and at a place reasonably convenient to Grantor and lender and make it available to lender within Ihree (3) days after recelpl of written demand from lender to Ihe exlent permitted by applicable law. Addresses. The mailing addresses of Granlor (debtor) and Lender (secured party) from which information concerning the security Interesl granled by this Mortgage may be obtained (each as required by the Uniform Commercial Code) are as slated on the firsl page of Ihls Mortgage. FURTHER ASSURANCES; ATTORNEY·IN·FACT. The following provisions relating to further assurances and attorney-in-fact are a part of Ihls Mortgage: . Further Assurances. AI any time, and from time to time, upon request of lender, Granlor will make, execute and deliver, or will cause 10 be made, executed or delivered, 10 lender or 10 lender's designee, and when requested by lender, cause to be filed, 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 trusI, security deeds, security agreemenls, financing stalements, continuation slatements, Instruments of further assurance, certificates, and other documents as may, In the sole opinion of lender, be necessary or desirable in order 10 effectuate, complete, perfect, continue, or preserve (1) Grantor's obligations under the Note, this Mortgage, and the Related Documents, and (2) the liens and security inleresls created by Ihls Mortgage as firsl and prior liens on the Property, whether now owned or hereafter acquired by Grantor. Unless prohibited by law or lender agrees 10 the contrary in wriling, Granlor shall reimburse lender for all cosls and expenses incurred In connection wilh the matters referred 10 in Ihis paragraph. Attorney-in-Fact. If Grantor fails to do any of Ihe Ihlngs referred 10 in the preceding paragraph, Lender may do so for and In Ihe name of Grantor and al Grantor's expense. For such purposes, Grantor hereby irrevocably appoints Lender as Granlor's attorney-In-fact for Ihe purpose of making, executing, delivering, filing, recording, and doing all other things as may be necessary or desirable, in lender's sole opinion, to accomplish the matters referred to in Ihe preceding paragraph. FUll PERFORMANCE. If Grantor pays all the Indebledness when due, and olherwise performs all the obligalions imposed upon Grantor under this Mortgage, lender shall execuleand deliver to Granlor a suitable satisfaction of this Mortgage and suitable stalemenls of terminalion of any financing statement on file evidencing lender's security interest in Ihe Rents and the Personal Property. Grantor will pay, if permitted by applicable law, any reasonable termination fee as determined by lender from time to time. EVENTS OF DEFAULT. Each of the following, at lender's option, shall constitute an Event of Default under this Mortgage: Paymenl Default. Grantor fails to make any payment when due under the Indebtedness. Default on Olher Payments. Failure of Grantor within the time required by this Mortgage 10 make any payment for taxes or insurance, or any other payment necessary to prevent filing of or to effect discharge of any lien. Olher Defaults. Grantor fails to comply with or 10 perform any other term, obligation, covenant or condition contained in this Mortgage or 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 in Favo.r of Third Parties. Should Grantor default under any loan, extension of credit, securily agreemenl, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Grantor's property or Grantor's abilily to repay the Indebtedness or Grantor's ability to perform Grantor's obligations under Ihis Mortgage or any related document. False Slalemenls. Any warranty, represenlation or statement made or furnished to Lender by Grantor or on Grantor's behalf under Ihls Mortgage or Ihe Relaled Documenls is false or misleading in any malerial respecl, either now or at Ihe time made or furnished or becomes false or misleading al any lime Ihereafter. Defective Collateralizatlon. This Mortgage or any of the Related Documents ceases to be in full force and effect (including failure of any collaleral document to creale a valid and perfected security interest or lien) at any time and for any reason. Death or Insolvency. The death of Grantor. the insolvency of Grantor, the appointment of a receiver for any part of Grantor's property, any assignmenl for the benefit of creditors, any Iype of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or againsl Grantor. Creditor or Forfeilure Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any olher melhod, by any creditor of Grantor or by any govern menial agency againsl any property securing the Indebtedness. This includes a garnishment of any of Grantor's accounts, including deposit accounts, with Lender. However, Ihis Event of Default shall not apply if there is a good faith dispute by Grantor as 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 or forfeiture proceeding and deposits with lender Loan No: 494030166 MORTGAGE (Continued) OOô71.1. Page 4 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 or bond for Ihe dispute. Breach of Other Agreement. Any breach by Grantor under the terms of any other agreement between Grantor and Lender that is not remedied within any grace period provided Iherein, including wilhoul limilalion any agreemenl concerning any indebledness or olher obligation of Grantor to Lender, whether existing now or laler. Evenls Affecting Guaranlor. Any of the preceding events occurs with respect to any guarantor, endorser, surety, or accommodation party of any of Ihe Indebledness or any guarantor, endorser, surety, or accommodation party dies or becomes incompelenl, or revokes or dispules Ihe validity of, or liabilily under, any Guaranty of the Indebledness. Adverse Change. A material adverse change occurs in Grantor's financial condition, or Lender believes Ihe prospect of paymenl or performance of Ihe Indebledness is impaired. Insecurity. Lender in good faith believes itself insecure. Righi to Cure. If any default,other Ihan a default in paymenl is curable and if Grantor has not been given a notice of a breach of the same provision of this Mortgage wilhin Ihe 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, Immedialely initiales sleps which Lender deems in Lender's sole discretion to be sufficient to cure 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 Ihe occurrence of an Event of Default and at any time thereafter, Lender, at Lender's option, may exercise anyone or more of the following rights and remedies, in addition to any other rights or remedies provided by law: Accelerate Indebledness. Lender shall have the righl al its option without notice to Grantor to declare Ihe entire Indebtedness immedlalely due and payable, including any prepayment penalty that Grantor would be required to pay. UCC Remedies. With res peel 10 all or any part of Ihe Personal Property, Lender shall have all Ihe righls and remedies of a secured party under the Uniform Commercial Code. Collect Rents. Lender shall have the right, without notice to Grantor, to take possession of the Property, including during the pendency of foreclosure, whether judicial or non-judicial, and 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 may require any tenanl or other user of the Property to make payments of rent or use fees direclly to Lender. If the Rents are collected by Lender, then Grantor irrevocably designates Lender as Grantor's attorney-in-fact to endorse instruments received 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 demand shall satisfy the obligations for which Ihe payments are made, whelher or not any proper grounds for the demand existed. Lender may exercise its rights under this subparagraph either in person, by agent, or through a receiver. Appoinl Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any part of the Property, with Ihe power to protect and preserve Ihe Property, to operate the Property preceding foreclosure or sale, and to collecl the Renls from Ihe Property and apply Ihe proceeds, over and above the cost of the receivership, against the Indebtedness. The receiver may serve withoul bond if permitted by law. Lender's righl 10 the appoinlment of a receiver shall exist whether or not the apparenl value of Ihe Property exceeds the Indebtedness by a substantial amount. Employment by Lender shall nol disqualify a person from serving as a receiver. Judicial Foreclosure. Lender may obtain a judicial decree foreclosing Grantor's Inlerest in all or any part of the Property. Nonjudicial Sale. Lender may foreclose Grantor's inlerest in all or in any part of Ihe 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 oblain a judgment for any deficiency remaining In Ihe Indebledness due to Lender after application of all amounts received from the exercise of the rights provided in Ihls section. Tenancy al Sufferance. If Granlor remains in possession of the Property after the Property is sold as provided above or Lender otherwise becomes entitled to possession of Ihe Property upon default of Grantor, Grantor shall beoome a tenant at sufferance of Lender or the purchaser of the Property and shall, al Lender's option, either (1) pay a reasonable renlal for the use of the Property, or (2) vacate the Property immediately upon the demand of Lender. Olher Remedies. Lender shall have all other rig his and remedies provided in this Mortgage or the Note or available at law or in equity. Sale of the Property. To the extent permitted by applicable law, Grantor hereby waives any and all right 10 have the Property marshalled. In exercising its rights and remedies, Lender shall be free to sell all or any part of Ihe Property logether or separately, in one sale or by separale sales. Lender shall be entitled to bid at any public sale on all or any portion of Ihe Property. Notice of Sale. Lender shall give Grantor reasonable notice of the time and place of any public sale of the Personal Property or of the time after which any private sale or other inlended disposition of the Personal Property is to be made. Reasonable notice shall mean notice given at least len (10) days before the time of the sale or disposition. Any sale of the Personal Property may be made in conjunction with any sale of the Real Property. Election of Remedies. 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 Mortgage, after Grantor's failure to perform, shall not affect Lender's right to declare a default and exercise its remedies. Nolhing under this Mortgage or otherwise shall be construed so as to limit or restricl Ihe rights and remedies available to Lender following an Evenl of Default, or in any way to limit or reslricl Ihe rig his and abilily of Lender 10 proceed directly againsl Grantor and/or against any other co-maker, guarantor, surety or endorser and/or to proceed against any other collateral directly or indirectly securing Ihe Indebledness. Attorneys' Fees; Expenses. If Lender institutes any suit or action to enforce any of the terms of this Mortgage, Lender shall be entitled to reoover such sum as the court may adjudge reasonable as attorneys' fees at Irial and upon any appeal. Whether or nol any court action is involved, and to the extenl not prohibited by law, all reasonable expenses Lender incurs Ihat in Lender's opinion are necessary at any time for the protection of its interesl or the enforcement of its rights shall beoome a part of the Indebtedness payable on demand and shall bear inlerest al Ihe Nole rale from Ihe date of the expenditure unlil repaid. Expenses covered by Ihis paragraph Include, wilhoul limitalion, however subjecl to any limits under applicable law, Lender's reasonable attorneys' fees and Lender's legal expenses whelher or nol Ihere is a lawsuit, including reasonable attorneys' fees and expenses for bankruplcy proceedings (including efforts 10 modify or vacate any automalic slay or injunclion), appeals, and any anlicipaled post-judgmenlcollection services, Ihe cost of searching reoords, obtaining title reports (Including foreclosure reports), surveyors' reports, and appraisal fees and title insurance, 10 the extenl permitted by applicable law. Granlor also will pay any court cosls, in addition to all other sums provided by law. NOTICES. Any notice required 10 be given under Ihis Mortgage, including without limitalion any nolice of default and any notice of sale shall be given in wriling, and shall be effective when actually delivered, when actually received by telefacslmile (unless olherwise required by law), when depositt; d with a nalionally recognized ovarnight courier, or, ;f mailed, when depositßd in the Uniled Stales mall, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Mortgage. Ail copies of notices of foreclosure from the holder of any lien which has priorily over this Mortgage shall be sent to Lender's address, as shown near the beginning of this Mortgage. Any party may change its address for notices under this Mortgage by giving formal written notice to the olher 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 currenl 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 nolice given to all Granlors. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Mortgage: Amendments. This Mortgage, together with any Related Documenls, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Mortgage. No alteration of or amendment to this Mortgage shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Annual Reports. If the Property is used for purposes other than Grantor's residence, Grantor shall fumish to Lender, upon request, a certified slatement of nel operaling income received from the Property during Grantor's previous fiscal year in such form and delail as Lender shall require. "Net operating income" shall mean all cash receipls from the Property less all cash expenditures made in connection with the operalion of Ihe Property. Caption Headings. Caplion headings in this Mortgage are for convenience purposes only and are not to be used 10 interpret or define the Loan No: 494030166 MORTGAGE (Continued) OOü7j.2 Page 5 provisions of this Mortgage. Governing Law. This Mortgage will be governed by federal law applicable 10 Lender and, to Ihe extent nol preempled by federal law, Ihe laws of the Slale of Wyoming wlthoul regard 10 lis confilcls of law provisions. This Mortgage has been accepled by Lender In Ihe Slale of Wyoming. No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Mortgage unless such waiver is given in writing and signed by Lender. No delay or omission on Ihe part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Mortgage shall not prejudice or constilule a waiver of Lender's righl olherwise 10 demand slrict compliance wilh Ihal provision or any other provision of Ihis Mortgage. No prior waiver by Lender, nor any course of dealing between Lender and Grantor, shall conslitute a waiver of any of Lender's rig his or of any of Granlor's obligations as 10 any fulure Iransactions. Whenever the consent of Lender is required under this Mortgage, Ihe granling of such consenl by Lender in any instance shall nol conslilute conlinuing consent 10 subsequent instances where such consenl is required and in all cases such consenl may be granted or wilhheld in Ihe sole discretion of Lender. Severability. If a court of compelent jurisdiction finds any provision of this Mortgage to be illegal, invalid, or unenforceable as 10 any clrcumslance, Ihat finding shall not make the offending provision illegal, Invalid, or unenforceable as to any other circumstance. If feasible, Ihe offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannol be so modified, il shall be considered deleled from this Mortgage. Unless otherwise required by law, Ihe illegality, invalidily, or unenforceability of any provision of this Mortgage shall not affect the legality, validily or enforceability of any other provision of this Mortgage. Merger. There shall be no merger of the interesl or estate created by this Mortgage with any other Interest or estate In the Property at any time held by or for the benefit of Lender in any capacity, without the written consent of Lender. Successors 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 Ihe benefit of the parties, their successors and assigns. If ownership of the Property becomes vested in a person other than Grantor, Lender, withoul nolice 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 Ihe Indebtedness. Time Is of Ihe Essence. Time is of Ihe essence in the performance of this Mortgage. Waiver of Homeslead Exemption, Grantor hereby releases and waives all rights and benefits of the homeslead exemption laws of Ihe State of Wyoming as to all Indebtedness secured by this Mortgage. DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in Ihis Mortgage. Unless specifically stated to the conlrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and lerms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and lerms not olherwise defined in Ihis Mortgage shall have the meanings attributed 10 such terms in the Uniform Commercial Code: Borrower. The word "Borrower" means Daniei A. Edwards and includes all co-signers and co-makers signing Ihe Note and all their successors and assigns. Default. The word "Default" means Ihe Default sel forlh in this Mortgage in the section litled "Default". Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statutes, regulations and ordinances relating to the protection of human health or the environment, including wilhout limitation the Comprehensive Environmental Response, Compensation, and liability Acl of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), Ihe Superfund Amendmenls and Reauthorizalion Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transporlation Acl, 49 U.S.C.Seclion 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable slate or federal laws, rules, or regulations adopted pursuant therelo. Evenl of Default. The words "Event of Default" mean any of the events of default set forlh in this Mortgage in the events of default section of this Mortgage. Granlor. The word "Granlor" means Daniel A. Edwards. Guaranly. The word "Guaranty" means the guaranty from guarantor, endorser, surety, or accommodation party to Lender, including withoul limitation a guaranty of all or part of the Note. Hazardous Subslances. The words "Hazardous Substances" mean materials that, because of their quantity, concentration or physical, chemical or infectious characterislics, may cause or pose a present or potential hazard to human health or the environment when improperly used, Irealed, stored, disposed of, generated, manufactured, transported or otherwise handled. The words "Hazardous Substances" are used in their very broadest sense and include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances" also includes, wlthoul limitation, petroleum and petroleum by-products or any fraction thereof and asbestos. Improvemenls. The word "Improvements" means all existing and future improvements, buildings, struclures, mobile homes affixed on Ihe Real Property, facilities, additions, replacements and other conslruction on the Real Property. Indebledness. The word "Indebtedness" means all principal, interest, and other amounts, costs and expenses payable under Ihe Nole or Related Documents, logether wilh all renewals of, extensions of, modifications of, consolidations of and substitutions for Ihe Note or Related Documents and any amounts expended or advanced 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 Firsl Bank of Idaho, fsb, dba First Bank of the Tetons, its successors and assigns. Mortgage. The word "Mortgage" means this Mortgage between Grantor and Lender. Note. The word "Note" means Ihe promissory nole daled October 7,2008, in the original principal amount of $277,500.00 from Granlor to Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and subslitutions for the promissory nole or agreement. The maturity date of this Mortgage is October 7,2009. Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter owned by Granlor, and now or hereafter attached or affixed to the Real Property; logether wilh all accessions, parts, and additions 10, all replacements of, and all substilutions for, any of such property; and togelher wilh all proceeds (including wilhout limilation 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, interests and rights, as further described in this Mortgage. Relaled Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, eecurity agreements, mortgagos, deeds of Irust, security deeds, collatera! mortgages, and all other instruments, agreemenls and documents, whelher now or hereafter existing, executed in connection with the Indebtedness. Renls. The word "Rents" means all present and future rents, revenues, income, issues, royalties, profits, and other benefits derived from Ihe Property. GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND GRANTOR AGREES TO ITS TERMS. GRANTO.R: . ~J. ~::-/ ß;/~ CiJ;;;/~d:i! ( Loan No: 494030166 MORTGAGE (Continued) OOû713 Page 6 INDIVIDUAL ACKNOWLEDGMENT . Slate of I. -'1"-' l"" 1./1 ') County of Ì't.l-uv", This instrument was acknowledged before me on 10 0.(5 ~C..<:r5 (date) by Daniel A. Edwards. j~~- (Notarial Signàl( re) KATIE LONG NOTARY PUBLIC COUNTY OF . STATE OF TETON WYOMING MY COMMISSION EXPIRES MAY 1, 2012 My commission expires: 0 - , - ;;to I ~ LASER PRO Lending, Ver. 5.41.00.004 Copr. Harland Financial Solutions, Inc. 1997, 2008. N:\CONVERnCFI\LPL\G03.FC TR-6709 PR-REC All Righls Reserved. - WY