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HomeMy WebLinkAbout943779 , This, ?ocwt'fnt, ~Cctto.:xf by AllIance I ¡ lIe and l~sçlow of Wyoming, LLC as a courtesy {Jnly. .......-" MORTGAGE AND SECURITY AGREEMENT úO\l595 Note: This document also serves as a fixture filing under the Uniform Commercial Code - Secured Transactions as adopted by the State of Wyoming. The Mortgagee is a Florida limited liability company. THIS MORTGAGE AND SECURITY AGREEMENT (the "Mortgage") is made this 6th day of November, 2008, by ANTHON T. STAUFFER, an individual (the "Mortgagor" or "Maker"), and member of FEATHERED HOOK PROPERTIES, LLC, a Utah Limited Liability Company registered in the State of Wyoming as a foreign LLC ("Feathered Hook"), whose address is 3615 South 2700 East, Salt Lake City, UT 84092, in favor of BISON CAPITAL, LLC, a Florida Limited Liability Company (together with its successor holder or holders of its New Note the "Mortgagee"), whose address is 981 Ridgewood Avenue Suite 105, Venice, FL 34285. Recitals Pursuant to a certain Real Estate Purchase Contract (the "Purchase Agreement") dated January 17, 2006, among Feathered Hook and Mauri Ventures, LLC, Feathered Hook purchased the Land (as defined below) and certain personal property (the "Personal Property") related thereto from Mauri Ventures, LLC. In connection with that purchase, Feathered Hook executed and delivered to Mortgagee a Promissory Note (as amended, extended or renewed from time to time, the "Note") date February 9Ú\ 2006, in the original principal amount of Five Million Two Hundred Twenty-Five Thousand Seven Hundred and Forty Two and 83/100 Dollars ($5,225,742.83). Feathered Hook defaulted on the Note. At the time of default, Feathered Hook held no equity in the land. In consideration of Mortgagee's agreement to accept a deed in lieu of foreclosure, Feathered Hook has executed a New Note, of even date herewith and Mortgagor has agreed to execute this Mortgage as additional security for the obligations of Feathered Hook with respect to the New Note. The final payment on the New Note is due twelve (12) months from the date hereof. The New Note in the amount of Seven Hundred Fifteen Thousand Eight Hundred Forty One Dollars and Seventy Six Cents ($715,841.76) is by reference made a part hereof to the same extent as though set forth in full herein. NOW, THEREFORE, for value received and in consideration of direct benefits to Mortgagor, to secure the payment and performance by the Maker of its obligations (the "Obligations") now existing or hereafter arising under the Note, this Mortgage and all other instruments now or hereafter evidencing or securing the Note, and in order to charge the properties, interests and rights hereinafter described with such payment and performance and for and in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the Mortgagor does hereby mortgage, transfer and assign to the Mortgagee and, as applicable, grant a security interest in, all of the Mortgagor's right, title and interest, whether now existing or hereafter acquired, in the following: (A) All of the land (the "Land") in Lincoln County, Wyoming, described in Exhibit "A" attached hereto and made a part hereof, to have and to hold the same, together with all rights, privileges, tenements, hereditaments, rights-of-way, easements, appendages, projections, appurtenances, water rights (including riparian and littoral rights), streets, ways, alleys, strips and gores of land now or hereafter in any way belonging to, adjoining, appurtenant to, crossing, or pertaining to the Land. Mortgagor agrees the subject property is non-agricultural land. (B) All buildings, betterments, structures, improvements and fixtures of any nature now or hereafter constructed or located, in whole or in part, on the Land, regardless of whether physically affixed thereto or now or hereafter severed or capable of severance from the Land (collectively, the "Improvements"). RECEIVED 11/21/2008 at 3:09 PM RECEIVING # 943779 Mortgage And Security Agreement BOOK: 709 PAGE: 595 Page 1 of 13 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER WY éOû596 (C) All rights of the Mortgagor in and to all awards or payments, including interest thereon and the right to receive the same, growing out of or resulting from any exercise of the power of eminent domain (including the taking of all or any part of the Land or the Improvements), or any alteration of the grade of any street upon which the Land abuts, or any other injury to, taking of, or decrease in the value of the Land or the Improvements or any part thereof. (D) All rights of the Mortgagor in and to any hazard, casualty, liability, or other insurance policy carried for the benefit of the Mortgagor or the Mortgagee or either of them with respect to the Improvements, including without limitation any unearned premiums and all insurance proceeds or sums payable in lieu of or as compensation for any loss of or damage to all or any portion of the Improvements. (E) All proceeds (and proceeds of proceeds), products, replacements, additions, betterments, extensions, improvements, substitutions, renewals and accessions of or to any of the foregoing. Everything referred to in subparagraphs (A) through (E) above and any additional property hereafter acquired by the Mortgagor and subject to the lien of this Mortgage or any part of these properties is herein referred to as the "Mortgaged Property. II This Mortgage constitutes a security agreement within the meaning of, and shall create a security interest under, the Uniform Commercial Code-Secured Transactions as adopted by the State of Wyoming, as in effect from time to time, or under the Uniform Commercial Code in force from time to time, in any other state to the extent the same is applicable law with respect to the Improvements included in the Mortgaged Property and all proceeds and products thereof, and all supporting obligations ancillary to or arising in any way in connection therewith (collectively, the "Improvements "). A carbon, photographic or other reproduction of this Mortgage or of any financing statement shall be sufficient as a financing statement. The debtor's principal place of business and the secured party's address is set forth in the introductory paragraph to this Mortgage. The Mortgagor shall execute and deliver to the Mortgagee, in form and substance satisfactory to the Mortgagee, such financing statements, continuation statements and such further assurances as either or both of the Mortgagee may from time to time consider reasonably necessary to create, perfect, preserve and maintain in full force and effect the Mortgagee' lien upon the Improvements. The Mortgagee, at the expense of the Mortgagor, may cause such statements and assurances to be recorded and rerecorded, filed and re-filed, in the name of the Mortgagor, and the Mortgagor hereby constitutes and irrevocably appoints the Mortgagee its true and lawful attorney- in-fact, which appointment is coupled with an interest, with full power of substitution, and empowers such attorney or attorneys in the name of the Mortgagor, but at the option of such attorney or attorneys-in-fact, to execute and file any and all financing statements. In addition to the foregoing, the Mortgagor hereby authorizes the Mortgagee at any time and from time to time to file any initial financing statements, amendments thereto and continuation statements with or without signature of the Mortgagor as authorized by applicable law, as applicable to the Mortgaged Property. For purposes of such filings, the Mortgagor agrees to furnish any information requested by Mortgagee promptly upon request of such Mortgagee. The Mortgagor also ratifies its authorization for Mortgagee to have filed any such initial financing statements, amendments thereto or continuation statements if filed prior to the date of this Mortgage. The Mortgagor hereby irrevocably constitutes and appoints the Mortgagee and any officer or agent of Mortgagee, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of the Mortgagor or in the Mortgagor's own name to execute in the Mortgagor's name any such documents and to otherwise carry out the purposes of this section, to the ..J Mortgage And Security Agreement Page 2 of 13 ûOû597 extent that the Mortgagor's authorization above is not sufficient. To the extent permitted by law, the Mortgagor hereby ratifies all acts such attorneys-in-fact shall lawfully do, have done in the past or cause to be done in the future by virtue hereof. This power of attorney is a power coupled with an interest and shall be irrevocable. The parties intend that this Mortgage shall continue in full force and effect until satisfied by a written satisfaction executed and delivered by Mortgagee to the Mortgagor after payment in full of all Obligations. The lien of this Mortgage shall secure all Obligations as more fully set forth herein together with future advances or other extensions of credit as more fully set forth herein. The Mortgagor specifically agrees as follows: 1. Compliance with Note and the Mortgage and Warranty of Title. The Mortgagor shall comply or cause the Maker to comply with all provisions hereof, of the Note, and of every other instrument securing the Note, and will promptly pay to the Mortgagee the principal with interest thereon and all other sums required to be paid by the Mortgagor under the Note, this Mortgage and all other instruments securing the Note. The Mortgagor covenants and warrants that: (a) the Mortgagor is indefeasibly seized of the Mortgaged Property; (b) the Mortgaged Property is not subject to any liens or encumbrances, other than liens for taxes which are not yet due, which are superior to the lien of this Mortgage (other than those matters, if any, described in Exhibit IIBII attached hereto; (c) the Mortgagor has lawful authority to convey, mortgage and ëncumber the Mortgaged Property; (d) the Mortgagee shall have the right to peaceably and quietly enjoy the Mortgaged Property to the extent of their rights as Mortgagee; (e) the Mortgagor will defend title to the Mortgaged Property against the claims of all persons whomsoever; and (f) the Mortgagor will provide such further assurances as may be necessary or convenient to perfect title in the Mortgagee. 2. Payment of Taxes and Liens. (a) The Mortgagor shall pay promptly, when due, and shall promptly upon request of Mortgagee deliver to such Mortgagee copies of receipts therefor, all taxes, assessments, rates, dues, charges, fees, impositions, obligations and encumbrances of every kind whatsoever now or hereafter imposed, levied or assessed upon or against the Mortgaged Property or any part thereof, or upon or against this Mortgage or the Obligations or other sums secured hereby, or upon or against the interest of the Mortgagee in the Mortgaged Property, as well as all income taxes, assessments and other governmental charges levied or imposed by any taxing authority upon or against the Mortgagor, the Mortgaged Property or any part thereof and any charge which, if unpaid, would become a lien or charge upon the Mortgaged Property. (b) The Mortgagor shall not permit any mortgage, mechanics', laborer's, materialmen's, statutory or other lien to be created or to remain a lien upon any of the Mortgaged Property. (c) The Mortgagor shall promptly pay all yearly taxes, assessments, and other similar charges against the Mortgaged Property as they become due (before any interest attaches or any penalty is incurred), and shall promptly upon request of Mortgagee deliver to such Mortgagee copies of receipts therefor. 3. Insurance. The Mortgagor will maintain or cause to be maintained upon and relating to the Mortgaged Property policies of property, liability and casualty insurance in amounts satisfactory to the Mortgagee. All insurance policies relative to the Mortgaged Property must be issued by an insurer, and be in an amount, satisfactory to the Mortgagee and must include provisions for a minimum 3D-day advance written Mortgage And Security Agreement Page 3 of 13 00\1598 notice to the Mortgagee of any intended policy cancellation or non-renewal. All liability insurance policies shall name the Mortgagee as additional insured parties with respect to the Mortgaged Property, and each such property insurance policy shall name the Mortgagee as loss payees, and shall provide by way of endorsements, riders or otherwise that (i) proceeds will be payable to each Mortgagee as its interest may appear; (ii) the Mortgagee will be loss payees for all proceeds; (iii) such insurance policy shall be renewed, if renewal is available, and shall not be canceled and further, shall not be endorsed, altered or reissued to effect a change in coverage in any manner materially adverse to the Mortgagee, for any reason and to any extent whatsoever unless such insurer shall have first given the Mortgagee thirty (30) days I prior written notice thereof; (iv) such insurance policy shall not be impaired by any act or neglect of the Mort agor or any use of the Mortgaged Property for purposes more hazardous than are per itted by such policy; and (v) the Mortgagee may, but shall not be obliged to, make pre ium payments to prevent any nonrenewal, cancellation, endorsement, alteration or reiss ance and such payments shall be accepted by the insurer to prevent the same. Each Mortgagee shall be furnished with an original certificate of insurance and a copy of th original policy if requested by such Mortgagee (or an original certificate and a copy of the blanket policy) coincident with the execution of this Mortgage and satis actory evidence of renewal thereof not less than thirty (30) days prior to the expi ation of the initial or each preceding renewal policy together with receipts or other evid nce that the premiums thereon have been paid, with a copy of each renewal policy or a ertificate with a duplicate of such renewal policy to follow as soon as available or, in a y such case, an appropriate broker's certificate in respect thereto. In addition, the Mor agor will promptly comply in all material respects with any and all requirements of a y insurer of any portion of the Mortgaged Property and any and all rules and regu ations of any insurance commission or board of fire underwriters having juris iction over the Mortgaged Property. 4. Loss or Casualty. (a) In the event of loss, each insurance company concerned is hereby authorized and directed to make payments for such loss directly to the Mortgagee instead of to the Mortgagor or to the Mortgagor and the Mortgagee jointly. Except as otherwise set forth in subparagraph (b) below, the Mortgagee may at its option apply the insurance proceeds or any part thereof after deducting therefrom all of the Mortgagee's expenses, including attorneys' fees, either to the reduction of the Obligations or to the repair or restoration of the property damaged. The Mortgagee is hereby authorized, at its option, to settle and compromise any claims, awards, damages, rights of action and proceeds, and any other payment or relief under any insurance policy. The Mortgagee shall not be responsible for any failure to collect any insurance proceeds due under the term of any policy regardless of the cause of the failure. (b) Notwithstanding the foregoing subparagraph (a), the Mortgagor shall be entitled, upon written request given to the Mortgagee within 30 days of loss or damage to the Mortgaged Property, to use all insurance proceeds payable as the result of such loss or damage to repair or restore the Mortgaged Property if: (i) No Event of Default shall have occurred hereunder on or before the date of the payment of such insurance proceeds; (ii) The insurance proceeds are paid into an escrow account with the Mortgagee; (iii) The Mortgagor, prior to commencing such repairs or restoration, deposits into the escrow account described in (ii) above a sum Mortgage And Security Agreement Page 4 of 13 ¡~ ('Oú599 necessary to complete the repairs or restoration in the event the insurance proceeds are insufficient to complete such repairs or restoration; (iv) All repairs or restorations are carried out pursuant to plans and specifications which are: (aa) provided to the Mortgagee within three months after such loss or damage; and (bb) are acceptable to the Mortgagee; and (c) The Mortgagee shall have a lien on all funds held in the escrow account pursuant to the foregoing subparagraph (b) as further security for the Obligations. 5. Condemnation. (a) The Mortgagee shall be entitled to all compensation, awards, damages, claims and rights of action, together with all proceeds thereof, if all or any part of the Mortgaged Property shall be damaged or taken through condemnation (which term when used herein shall include any damage or taking by any government authority or any other authority lawfully authorized to so damage or take, and any transfer by private sale in lieu thereof). The Mortgagee is hereby authorized, at its option, to commence, appear in and prosecute, in its own name or in the name of the Mortgagor, any action or proceeding relating to any condemnation, and to settle or compromise any claim in connection therewith. In the event that Mortgagee elects to act as provided in the immediately preceding sentence then prior to taking any such action, the Mortgagee shall grant (by delivery of written notice) Mortgagor the right to prepay all Obligations secured by this Mortgage. If Mortgagor elects to pre-pay then such pre-payment shall be delivered to Mortgagee within seven days of the delivery of notice to Mortgagor and Mortgagee shall promptly deliver full satisfaction to Mortgagor upon payment. All compensation, awards, damages, claims, rights of action and proceeds derived from or relating to any such cond~mnation, and any other payments or relief and the right thereto, are hereby assigqed by the Mortgagor to the Mortgagee, who, after deducting therefrom all its exþenses including attorneys' fees, may release any monies so received by it withdut affecting the lien of this Mortgage or may, except as set forth in I subpqragraph (b) below, apply the same, in such manner as the Mortgagee shall deteninine, to the reduction of the sums secured hereby. Any balance of such I moniés then remaining shall be paid to the Mortgagor. The Mortgagor agrees to execute such further assignments of any compensations, awards, damages, claim~, rights of action and proceeds as the Mortgagee may require. ! i ¡ (b) Notwithstanding the foregoing subparagraph (a), if the amount of any such damage or taking by condemnation does not exceed $100,000, then the Mortgagor shall be entitled, upon written request made to the Mortgagee within 30 days of such damage or taking, to use all condemnation proceeds payable as the r~sult of such damage or taking to repair or restore any damage to the Mortgaged Property caused by such condemnation if: (i) No Event of Default shall have occurred hereunder on or I before the date of the payment of such condemnation proceeds; (ii) The condemnation proceeds are paid into an escrow account with the Mortgagee; (iii) The Mortgagor, prior to commencing such repairs or restoration, deposits into the escrow account described in (ii) above a sum Mortgage And Security Agreement Page 5 of 13 ûOû600 necessary to complete the repairs or restoration (as determined by the Mortgagee in its discretion) in the event the condemnation proceeds are insufficient to complete such repairs or restoration; (iv) All repairs or restorations are carried out pursuant to plans and specifications which are: (aa) provided to the Mortgagee within three months after such damage or taking; and (bb) are acceptable to the Mortgagee; and (v) The proceeds held in escrow (both the condemnation proceeds and the Mortgagor's funds) are disbursed in accordance with the Mortgagee' standard construction loan administration procedures. (c) The Mortgagee shall have a lien on all funds held in the escrow account pursuant to the foregoing subparagraph (b) as further security for the Obligations. 6. Care and Use of the Mortgaged Property. The Mortgagor shall not cut or remove any material amount of timber, sever, remove or grant any rights in any water, oil, gas, minerals, lime rock, phosphate, soil or other materials or remove or demolish any building or other property forming a part of the Mortgaged Property without the prior written consent of the Mortgagee in the Mortgagee' sole discretion. Except as such may be the result of the activities of Mortgagee, the Mortgagor shall not permit, commit or suffer any waste, impairment or deterioration of the Mortgaged Property or any part thereof, and shall keep the same and improvements thereon in good condition and repair. The Mortgagor shall notify the Mortgagee in writing within five (5) days of the discovery of any material damage or impairment of the Mortgaged Property. The Mortgagor shall comply with all laws and regulations applicable to the Mortgaged Property, including, without limitation, all zoning, environmental, land use and toxic or hazardous waste disposal laws. 7. The Mortgagee Right to Make Certain Payments. In the event the Mortgagor fails to complete or adequately maintain any improvements to the Mortgaged Property, payor discharge the taxes, assessments, levies, liabilities, obligations (including obligations under any leases) or encumbrances affecting the Mortgaged Property, or fails to keep the Mortgaged Property insured or to deliver the polides, premiums paid, or fails to repair the Mortgaged Property as herein agreed, or fails to make any payment required under any other mortgage or security agreement relating to the Mortgaged Property (whether or not the existence of such mortgage or security agreement is permitted by this Mortgage), or the Mortgagor otherwise defaults in any covenant herein, the Mortgagee may at its option, after providing Mortgagor with notice and opportunity to cure as provided in paragraph 13, without waiving or curing any default by the Mortgagor, expend funds to complete such improvements, accomplish such maintenance, payor discharge the taxes, assessments, levies, liabilities, and to payoff or cure any default under, obligations and encumbrances or any part thereof, procure and pay for such insurance or make and pay for such repairs and take such action to preserve the value of the Mortgaged Property and otherwise perform any action required to be performed by the Mortgagor. The Mortgagee shall have no obligation on its part to determine the validity or necessity of any payments thereof and any such payment shall not waive or affect any option, lien, equity or right of the Mortgagee under or by virtue of this Mortgage. The full amount of each and every such payment shall be immediately due and payable and shall bear interest from the date thereof until paid at the Default Rate, as defined below, and together with such interest, shall be secured by the lien of this Mortgage. Nothing herein contained shall be construed as requiring the Mortgagee to advance or expend monies for any of the. purposes mentioned in this paragraph. No such payments shall be deemed to waive or cure any default hereunder, Mortgage And Security Agreement Page 6 of 13 éOv601 8. Payment of Expenses. The Mortgagor shall pay all of the costs, advances, charges and expenses, disbursements and cost of abstracts of title, and documentary stamp (and any penalties or interest with respect thereto) incurred in connection with the Note or this Mortgage or the enforcement thereof or paid at any time by either of the Mortgagee due to the failure on the part of the Mortgagor promptly and fully to perform, comply with and abide by each and every stipulation, agreement, condition and covenant of the Note and this Mortgage or in the enforcement of the Mortgagee' rights hereunder. Such costs, charges and expenses shall be immediately due and payable, whether or not there be notice, demand, attempt to collect or suit pending. The full amount of each and every such payment shall bear interest from the date thereof until paid at the Default Rate, as hereinafter defined. All such costs, charges and expenses so incurred or paid, together with such interest, shall be secured by the lien of this Mortgage and any other instrument securing the Note. No such payments shall be deemed to waive or cure any default hereunder. 9. No Transfer or Further Encumbrance. The Mortgagor shall not sell, convey, transfer, lease or further encumber any interest in or any part of the Mortgaged Property without the prior written consent of the Mortgagee, and any such sale, conveyance, transfer, lease or encumbrance made without the Mortgagee's prior written consent may, at the Mortgagee' option, be declared null and void by the Mortgagee. Mortgagor acknowledges that although Mortgagee may, in its sole discretion, execute partial releases necessary for Mortgagor to sell portions of the Mortgaged Property, it shall not execute such releases unless it has determined, in its sole discretion, that all of the sale proceeds less reasonable expenses of closing are applied to reduce the Note and the net sale proceeds fairly represent the value of the portion of the Mortgaged Property released. If any person should obtain an interest in all or any part of the Mortgaged Property pursuant to the execution or enforcement of any lien, security interest or other right, whether superior, equal or subordinate to this Mortgage or the lien hereof, such event shall be deemed to be a transfer by the Mortgagor and a default hereunder. 10. Additional Documents. At any time and from time to time, upon the request of Mortgagee or Mortgagor, the Mortgagor and Mortgagee respectively shall make, execute and deliver or cause to be made, executed and delivered to such Mortgagee or Mortgagor, as the case may be, and, where appropriate, Mortgagor shall cause to be recorded or filed and from time to time thereafter to be recorded or refiled at such time and in such offices and places as shall be deemed desirable by such Mortgagee any and all such further mortgages, instruments of further assurance, certificates and other documents as such Mortgagee may consider necessary or desirable in order to effectuate, complete, enlarge or perfect, or to continue and preserve the obligations of the Mortgagor under such Mortgagor's Note and this Mortgage, and the lien of this Mortgage upon all of the Mortgaged Property, whether now owned or hereafter acquired by the Mortgagor. 11. Events of Default. Subject to the provisions of paragraph 13, anyone of the following shall constitute an Event of Default: (a) The occurrence of any Event of Default under the Note. (b) Failure by the Mortgagor to pay, as and when due and payable, any installments of principal, interest or other amounts due under the Note. (c) Failure by the Mortgagor to duly keep, perform and observe any other covenant, condition or agreement in the Note, this Mortgage, or any other instrument securing the Note for a period of fifteen (15) days after the Mortgagee gives written notice specifying the failure. Mortgage And Security Agreement Page 7 of 13 (:OU602 (d) If the Mortgagor or any guarantor or endorser of the Note: (i) files a voluntary petition in bankruptcy, or (ii) is adjudicated as a bankrupt or insolvent, or (iii) files any petition or answer seeking or acquiescing in any reorganization, management, composition, readjustment, liquidation, dissolution or similar relief for itself under any law relating to bankruptcy, insolvency or other relief for debtors, or (iv) seeks, consents to or acquiesces in the appointment of any trustee, receiver, master or liquidator of itself or of all or any part of the Mortgaged Property, or (v) makes any general assignment for the benefit of creditors, or (vi) makes any admission in writing of its insolvency or inability to pay its debts generally as they become due. (e) If: (i) a court of competent jurisdiction enters an order, judgment or decree approving a petition filed against the Mortgagor seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief, under any present or future federal, state, or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, which order, judgment or decree remains un-vacated and un-stayed for an aggregate of sixty (60) days whether or not consecutive from the date of entry thereof; or (ii) any trustee, receiver or liquidator of the Mortgagor or of any part of the Mortgaged Property is appointed without the prior written consent of the Mortgagee, which appointment shall remain un-vacated and un-stayed for an aggregate of sixty (60) days whether or not consecutive. (f) Any breach of any warranty or any material untruth of any representation of the Mortgagor contained in the Note or this Mortgage. 12. Acceleration. If an Event of Default shall have occurred, the Mortgagee may, after compliance with paragraph 13, declare all amounts due under the Note held by such Mortgagee and any interest accrued thereon, and all other bums secured hereby with respect to such Mortgagee, to be due and payable immediately. Upon such declaration all principal and interest and other sums owed to such Mortgagee shall immediately be due and payable without demand or notice. 13. Mortgagor Notice and Right to Cure. Notwithstanding any provision of this Mortgage or the Note to the contrary, the Mortgagee shall have the right to pursue its remedies in the Event of Default under this Mortgage or the Note, without first complying with the notice and cure provisions set forth here as follows: (a) Mortgagee shall notify Mortgagor in writing, by certified mail, of the Event of Default; (b) of the default. The notice shall provide sufficient detail as to the nature and extent (c) The notice shall provide Mortgagee suggested method for curing the default. (d) The Mortgagor shall have five (5) days to cure any payment default, and fifteen (15) days to attempt to cure any non-payment default ("Cure Period "). (e) If, in the opinion of the Mortgagee, at the expiration of the Cure Period, the default is continuing, then Mortgagee shall have the option to immediately demand full payment of all Obligations. (f) If Mortgagee demands full payment of all Obligations, then such Mortgage And Security Agreement Page 8 of 13 00\1603 demand shall be in writing and include (i) the total amount necessary to satisfy all Obligations; (ii) documentation supporting Mortgagee computation of the amount; and wiring instructions for the payment. (g) Mortgagor shall have seven days to tender payment. (h) Mortgagee shall immediately deliver to Mortgagor a written satisfaction upon receipt of full payment. (i) If Mortgagor fails to timely tender payment then Mortgagee shall no longer be subject to the provisions of this Paragraph 13. 14. Remedies After Default. (a) If an Event of Default shall have occurred, the Mortgagee may, after compliance with the provisions of paragraph 13, exercise any or all of the following rights, remedies and recourses: (i) The Mortgagee may foreclose by advertisement and sale as provided by Wyoming statute or institute judicial proceedings, for the complete foreclosure of this Mortgage to the fullest extent permitted by law; or institute a proceeding or proceedings, judicial or otherwise, for the partial foreclosure of this Mortgage, as permitted by applicable law for the portion of the Obligations then due and payable, with this Mortgage then continuing unimpaired and without loss of priority so as to secure the balance of the Obligations. (ii) To the extent permitted by applicable law, the Mortgagee may sell or offer for sale the Mortgaged Property, in such portions, order and parcels as the Mortgagee or Mortgagee, as the case may be, may determine, with or without having first taken possession of same, to the highest bidder for cash in lawful money of the United States at public auction in accordance with applicable law, or the Uniform Commercial Code - Secured Transactions as adopted by the State of Wyoming, and in the event of a sale, by foreclosure or otherwise, of less than all of the Mortgaged Property, this Mortgage shall continue as a lien and security interest on the remaining portion of the Mortgaged Property. The Mortgagee may postpone any sale by public announcement at the time and place noticed for the sale. If the Mortgaged Property consists of several lots, parcels or items of property, the Mortgagee, in its sole discretion and to the extent permitted by applicable law: (i) designate the order in which such lots, parcels or items shall be offered for sale or sales, or (ii) elect to sell such lots, parcels or items through a single sale, or through two or more successive sales or in any other manner that the Mortgagee deems in its best interest. Should the Mortgagee desire that more than one sale or other disposition of the Mortgaged Property or any portion thereof be conducted simultaneously, or successively, on the same day, or at such different days or times and in such order as the Mortgagee may deem to be in its best interests, no such sale shall terminate or otherwise affect the lien and security interest of this Mortgage on any part of the Mortgaged Property not sold until all the Obligations have been fully satisfied and the Mortgage shall have been satisfied. The Mortgagor shall pay the expenses of any sale of the Mortgaged Property, whether one or more, and of any judicial proceedings wherein the same may be made, including reasonable compensation of the Mortgagee, its agents and counsel, and shall pay all expenses, liabilities and advances made or incurred by the Mortgagee in connection with such sale or sales, together Mortgage And Security Agreement Page 9 of 13 OOiì604 with interest on all such advances made by the Mortgagee at the Default Rate. Upon any sale hereunder, the Mortgagee shall execute and deliver to the purchaser or purchasers a deed or deeds conveying the property so sold, but without any covenant or warranty whatsoever, express or implied, whereupon such purchaser or purchasers shall be let into immediate possession; and the recitals in any such deed or deeds of facts, such as default, the giving of notice of default and notice of sale, and other facts affecting the regularity or validity of such sale or disposition, shall be conclusive proof of the truth of such facts; and any such deed or deeds shall be conclusive against all persons as to such facts recited therein. (b) Prior to, upon or at any time after, commencement of foreclosure of the lien provided for herein or any legal proceedings pursuant hereto, Mortgagee may make application to a court of competent jurisdiction for appointment of a receiver of the Mortgaged Property. Such application may be made as a matter of strict right and without notice to the Mortgagor (unless notice is required by applicable law and such right of notice may not be waived) or regard to the adequacy of the Mortgaged Property or insolvency of the Mortgagor or any person who may be legally or equitably liable to pay the Obligations and without giving bond to the Mortgagor (unless bond is required by applicable law and such right of bond may not be waived), and the Mortgagor does hereby irrevocably consent to such appointment. Any such receiver shall have all the usual powers and duties of receivers in similar cases, including the full power to rent, maintain and otherwise operate the Mortgaged Property all upon such terms as may be approved by the court. (c) To the extent permitted by applicable law, the Mortgaged Property may be sold in one or more parcels and in such manner and order as the Mortgagee, in its sole discretion, may elect, it being expressly understood and agreed that the right of sale arising out of any Event of Default shall not be exhausted by anyone or more sales. (d) The Mortgagee shall have all rights, remedies and recourses granted in the Note and Mortgage and available at law or equity (including specifically those granted by the Uniform Commercial Code in effect and applicable to the Mortgaged Property) including, without limitation, the right to foreclose by advertisement and sale, or judicially foreclose (i) shall be cumulative and concurrent; (ii) may be pursued separately, successively or concurrently against the Mortgagor or against all or any portion of the Mortgaged Property, in the sole discretion of the Mortgagee; (iii) may be exercised as often as occasion therefor shall arise, it being agreed by the Mortgagor that the exercise or failure to exercise any of same shall in no event be construed as a waiver or release thereof or of any other right, remedy or recourse; and (iv) are intended to be, and shall be nonexclusive. (e) The Mortgagee shall be entitled to receive all costs and expenses of the sale or repossession of the Mortgaged Property including any receiver's fee or commission, if any, title and abstracting charges, attorneys' fees and a auctioneer's fees, and all other costs and expenses incurred in exercising its remedies hereunder. (f) The Mortgagor shall not be relieved of any obligation it has under the Note and Mortgage by reason of (i) the release, regardless of consideration, of any of the Mortgaged Property or any other collateral held pursuant to the Note and Mortgage or the addition of any other property to the Mortgaged Property or any other such collateral; (ii) any agreement or stipulation between any Mortgage And seCUJity Agreement Page 10 (13 COô60S subsequent owner of all or any portion of the Mortgaged Property and the Mortgagee or Mortgagee extending, renewing, rearranging or in any other way modifying the terms of the Note and Mortgage without first having obtained the consent of, given notice to or paid any consideration to the Mortgagor, and in such event the Mortgagor shall continue to be liable to make payment according to the terms of any such extension or modification agreement unless expressly released and discharged in writing by the Mortgagee or Mortgagee, as the case may be; or (iii) any other acts or occurrence, save and except the full payment and performance of all of the Obligations. (g) To the fullest extent permitted by law, the Mortgagee may release, regardless of consideration, any part of the Mortgaged Property without, as to the remainder, in any way impairing, affecting, subordinating or releasing the lien or security interest created in or evidenced by this Mortgage or its status as a first and prior lien and security interest in and to the Mortgaged Property. For payment of the Obligations, to the fullest extent permitted by applicable law, the Mortgagee may resort to any other security in such order and manner as the Mortgagee may elect, and such resort may be taken concurrently or successively and in one or several consolidated or independent judicial actions or lawfully taken non-judicial proceedings, or both. (h) Except as otherwise provided in this Mortgage, to the fullest extent permitted by applicable law, the Mortgagor hereby irrevocably and unconditionally WAIVES and RELEASES (i) all benefits that might accrue to the Mortgagor by virtue of any present or future law exempting the Mortgaged Property from attachment, levy or sale on execution or providing for any appraisement, valuation, homestead exemption, stay of execution, exemption from civil process, redemption or extension of time for payment; (ii) except as otherwise provided in the Note and Mortgage, all notices of any demand, presentment, Event of Default, intent to accelerate or acceleration or the election by the Mortgagee to exercise or the actual exercise of any right, remedy or recourse provided for under the Note and Mortgage; (iii) any right to a marshalling of assets or a sale in inverse order of alienation; (iv) any restrictions or conditions upon the exercise by the Mortgagee of the remedies set forth herein; and (v) rights of redemption. (i) To the extent permitted by applicable law, in case the Mortgagee shall have proceeded to invoke any right, remedy or recourse permitted under the Note and Mortgage and shall thereafter elect to discontinue or abandon same for any reason, the Mortgagee shall have the unqualified right so to do and, in such an event, the Mortgagor and the Mortgagee shall be restored to their former positions with respect to the Note and Mortgage, the Mortgaged Property and otherwise, and the rights, remedies, recourses and powers of the Mortgagee shall continue as if same had never been invoked. G) To the extent permitted by applicable law, all proceeds received from the sale or other dispositions of the Mortgaged Property, shall be applied by the Mortgagee (or the receiver, if one is appointed), as applicable, to the extent that funds are so available therefrom, in accordance with the following priorities: First: to the costs and expenses of the sale or possession of the Mortgaged Property including any receiver's fee or commission, if any, title and abstracting charges, attorneys' fees and an auctioneer's fee if such expense has been incurred; Second: to the satisfaction of the Obligations; Mortgage And Security Agreement Page 11 of 13 COô60G Third: to the payment to whomsoever shall be entitled thereto under applicable law, if the person who made the sale knows who is entitled thereto. Otherwise, the surplus shall be paid to the clerk of the superior, district or circuit court (or other court having jurisdiction). (k) If the Mortgagee shall be ordered, in connection with any bankruptcy, insolvency or reorganization of the Mortgagor, to restore or repay to or for the account of the Mortgagor or any of their creditors any amount theretofore received hereunder, the amount for such restoration or repayment shall be deemed to be an Obligation so as to place the Mortgagee in the position it would have been in had such amount never been received by any party hereto. (1) Subject to the provisions of paragraph 13, if an Event of Default shall occur, the Mortgagor will use its best efforts to cooperate with the Mortgagee and promptly do all things reasonably required of it toward obtaining all necessary authority and permission from any governmental authority or otherwise to accomplish any disposition, abandonment or change in use of the Mortgaged Property (or any portion thereof) as Mortgagee may request in connection with the exercise of its rights and powers hereunder and under the other Note and Mortgage. Without limiting the generality of the foregoing, following an Event of Default and reasonable advance notice to the Mortgagor, the Mortgagor agrees to relocate operations located on the Mortgaged Property to accommodate the disposition, abandonment, change in use or foreclosure by the Mortgagee of any portion thereof, provided that such relocation does not materially violate any legal requirement applicable to the Mortgagor or the Mortgaged Property. (m) No delay or omission of Mortgagee or of any holder of any interest in the Note to exercise any right, power or remedy accruing upon any Event of Default shall exhaust or impair any such right, power or remedy or shall be construed to waive any Event of Default or to constitute acquiescence therein. 15. No Waiver. No delay or omission of Mortgagee or of any holder of any interest in the Note or the Mortgage to exercise any right, power or remedy accruing upon any Event of Default shall exhaust or impair any such right, power or remedy or be construed as a waiver of any such Event of Default or constitute acquiescence therein. 16. Non-Exclusive Remedies. No right, power or remedy conferred upon or reserved to Mortgagee by the Note, this Mortgage or any other instrument securing the Note is exclusive of any other right, power or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power or remedy given hereunder or under the Note, or any other instrument securing the Note, or now or hereafter existing at law, in equity or by statute. 17. Successors and Assigns Bound. Whenever one of the parties hereto is named or referred to herein, the heirs, personal representatives, successors and assigns of such party shall be included and all covenants and agreements contained in this Mortgage, by or on behalf of the Mortgagor or the Mortgagee, shall bind and inure to the benefit of their respective heirs, personal representatives, successors and assigns. 18. Invalid or Unenforceable. In the event that any of the covenants, agreements, terms or provisions contained in the Note, this Mortgage or any other instrument securing the Note shall be invalid, illegal or unenforceable in any respect, the validity of the remaining covenants, agreements, terms or provisions contained herein and in the Note and any other instrument securing the Note shall be in no way Mortgage And Security Agreement Page12of13 affected, prejudiced or disturbed thereby, OOû607 19. Obligation of the Mortgagor. The Mortgagor shall pay the cost of releasing or satisfying this Mortgage of record. 20. Interest Rate. The applicable interest rates shall be governed by the terms of the Note. However, at no time shall any interest or charges in the nature of interest be taken, exacted, received or collected which would exceed the maximum rate permitted by law. 21. No Merger. Neither the Mortgagor nor the Mortgagee intend that there be, and there shall not in any event be, any merger of the lien and security interest of this Mortgage with any other right, interest, lien or security interest in the Mortgaged Property held by either Mortgagee, and it is specifically provided that the lien and security interest of this Mortgage on one hand and any other right, interest, lien or security interest of the Mortgagee on the other hand shall be and remain separate and distinct (and the priority of any and all such other rights, interests, liens and security interests is hereby preserved). 22. Waiver of Homestead. Mortgagor hereby relinquishes and waives all rights under and by virtue of the homestead exemption laws of the State of Wyoming. IN WITNESS WHEREOF, the undersigned has executed this instrument as of the day and year above first written. , c--- Jç~~ .,...",... -- }\. .. -"._,- ". Anthon T. Stauffer STATE OF WYOMING ) ) COUNTY OF LINCOLN ) The foregoing instrument was acknowledged before me this L day of November, 2008, by Anthon T. Stauffer. WITNESS my hand and official seal. \J!.,~,~.r,} ";;;:;~ -':"~':';;;';~~'"~'~"'''",..,"t'"'~'' .. '~, '"" ", . , , . !'J...)"L,·\¡·:;y F\) :":\:.. :~:; ,~: ~t, ':.'- d- L' :)( ~~;t8ti:-1 cf i/ ~t,'f ~wi(\~;('¡:~ \r) 4' .'\iY0f~;in~~ .~¿ ~ iI,: .. t ~·w,« ",," "", " ., ."..,., ..:¿'~~33~,:~;;2},,,,,,,J ~/J.~ No y Public My Commission Expires: /',e:¿ O· ~ ð I} ~....~~~,;-~¡:,;:;,~,~'i!!<.,ro~;",,·;::'':!_·t~,,}\:,,"::!\-<~''~~;''''''Ir.~."~~~ :if JILL H, IJ,HSON,'JCi':¡:\iW PUBLIC 1- ~ County of :'3tate of ~ 'æ," Lincoln Vv:'oiî1in~; ~ ~ { ~"",~~~:~~ì~:;~~~.~;,~~,,;;!L~,~\;~:;::2~'~_;2:2~~>'C.J Mortgage And Security Agreement Page 13 of 13 II 5' c. h ,e.d 0( (€_.I If II (:00608 "I. .....'-41...,..,...." ..... .. -.,..---~-_. 'l"bat plU1 ç ~ cþ¡, sYiSW1Aí of ~¡;m 14, ".r.$2N R1l9W ¢fthe 6th P.M., LI.oco!n County, Wyow.hlg, ~!ng part of ~t tract of record in t:b.cOmw of the Clelk ot LlnC01n Cgmuy 1.Q Book 41(1PR vn plt~Q :)94t ~l/)l;(i 114 fQUow~; :6e&irudn& ílt 11 l'Qinl on rru. WéSt line ¢f saX! 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