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HomeMy WebLinkAbout877343RECORDATION REQUESTED BY: The Jackson State. Bank P.O. Box 1788 112 Center Street Jackson, WY 83001 8 7 7 3 0 ' WHEN RECORDED MAIL TO: The Jackson State Sank P.O. Box 1788 ~:'~"" ¢ ..... ,, ...... ~,,~ ,~ ~ :,. f 112 Center Street ' ~,, SEND TAX NOTICES TO: ~'}t~; The Jackson State Bank ~- 'qOr~[~.lW~.q~' "['~t~- % r~ "'"~ ' ' P.O. Box 1788 112 Center Street ~ ~, Jackson~ WY 83001 SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY MORTGAGE MAXIMUM LIEN. The lien of this Mortgage shall nOt exceed at any one time $150,000.00. THIS MORTGAGE dated November 2, 2001, is made and executed betWeen Elizabeth D. Talermo, wife, whose address is PO Box 4557, Jackson, 'WY 83001 and Harry V. Talermo, husband, whose address is PO Box 4557, Jackson, WY 83001 (referred to below as "GrantOr") and The Jackson State Bank, whose address is P.O. Box 1788, 112 Center Street, Jackson, WY 83001 (referred to below as "Lender"). GRANT OF MORTGAGE. For valuable consideration, Grantor mortgages and conveys to Lender all of Grantor's right, title, and interest in and to the following described real prope.rty, together With all existing or subsequently erected or affixed buildings, improvements and fixtures; al~ easements, rights of way, and appurtenances; all water, water rights, watercourses and ditch rights (including stock in utilities with ditch or irrigation rights); and all other rights, royalties, and profits relating to the real property, including without limitation ail minerals, oil, gas, geothermal and similar matters, (the "Real Property") located in Lincoln County, State of Wyoming: See Exhibit 'A', which is attached to this Mortgage and made a part of this Mortgage as if fully set forth herein. The Real Property or its address is commonly known as Alpine Hills Drive, Alpine, WY 83128. REVOLVING LINE OF CREDIT. Specifically, In addition to the amounts specified in the Indebtedness definition, and without limitation, this Mortgage secures a revolving line of credit, which obligates Lender to make advances to Borrower so long as Borrower complies with all the terms of the Note, Grantor presently assigns to Lender all of Grantor's right, title, and interest in and to ail present and future leases of the Property and all Rents from the Property. In addition, Grantor grants to Lender ~ Uniform Commercial Code security interest in the Personal Property and Rents. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT OF THE INDEBTEDNESS AND (B) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: GRANTOR'S WAIVERS; Grantor waives all rights' or defenses arising by reason Of any "oho action" or "anti-deficiency" law, or any other law whici~ may prevent Lender from bringing any action against Grantor, including a claim for deficiency to the extent Lender is otherwise entitled to a claim for deficiency, before or after Lender's commencement or completion of any foreclosure action, either judicially or by exercise of a Power of sale. GRANTOR'S REPRESENTATION.S AND WARRANTIES. Grantor warrants that: (a) this Mortgage is executed at Borrower's request and not at the ~ f request of Lender (b) Grantor has ~e~full power, right, and authority to enter into this Mortgage and to hypothecate the Property; (c) the provlmons o this Mortgage do not conflict With, 0r result in a default under any agreement or other instrument binding Upon Grantor and do not resu t n a vic at on of any law, regulation, court decree or' order applicable to Grantor; (d) Grantor has established adequate means of obtaining from Borrower on a continuing basis information about Borrower's financial condition; and (e) Lender has made no representation to Grantor about Borrower (including without limitation the creditworthiness of Borrower). PAYMENT AND PERFORMANCE. Except as otherwise provided, in this Mortgage, Borrower shall pay to Lender all Indebtedness secured by this Mortgage as it becomes due, and Borrower and Grantor shall strictly perform all Borrower's and Grantor's obligations under this Mortgage. POSSESSION AND MAINTENANCE OF THE PROPERTY. Borrower and Grantor agree that Borrower's and Grantor's possession and use of thePropedy shall be governed by the following provisions: Possession and Use. Until the occurrence of an Event of Default, Graritor may (1) remain in possession and control of the 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, about or from the Property by any prior owners or occupants of the Property, or (c) any actual or threatened litigation or claims of any kind by any person relating to such matters; and (3) ..Except as. previous!y disclosed to and acknowledg)d bY Lender i~ writing,. (a) neither Grantor nor any tenant, contractor, agent or other authorized user of the Property' shail 'use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from the Property; and (b) any subh activity shall be conducted in compliance with all applicable federal, State, . and local laws, regulations and ordinances, including without limitation all Environmental Laws. Grantor authorizes Lender and its agents to enter upon the Property to make such inspections and tests, at Grantor's expense, as Lender may deem appropriate to determine compliance of the Property with this section of the Mortgage. Any inspections or tests made by Lender shall be for Lender's purposes only and shall not be construed to create any responsibility or liability on the part of Lender to Grantor or to any other person. The representations and warranties contained herein are based on Grantor's due diligence in investigating the Property for Hazardous Substances. Grantor hereby (1) releases and waives any future claims against Lender for indemnity or contribution in the event Grantor becomes liable for cleanup or other costs under any such laws; 'and (2) agrees to indemnify and hold harmless Lender against any and all claims, losses, liabilities, damages, penalties, and expenses which Lender may directly or indirectly sustain or suffer resulting from a breach of this section of the Mortgage or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release occurring prior to Grantor's ownership or interest in the Property, whether or not the same was or should have been known to Grantor. The provisions of this section of the Mortgage, including the obligation to indemnify, shall survive the payment 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 not cause, conduct or permit any uisance nor commit, permit, or suffer any stripping of or waste on or to the Property or any portion of the Property. Without limiting the generality of the foregoing, Grantor will not remove, or grant to any other party the right to remove, any timber, minerals (including oil and gas), coal, clay, scoria, soil, gravel or rock products without Lender's prior written consent. Removal of Improvements. Grantor shall not demolish or remove any Improvements from the Real Properly without Lender's prior written cohsen't As a condition to the removal of any Improvements, Lender may require Grantor to make arrangements satisfactory to Lender to replace such Improvements with Improvements of at least equal value. Lender's Right to Enter, Lender and Lender's agents and representatives may enter upon the Real Properly at all reasonable times to attend to Lender's interests and to inspect the Real Property for purposes of Grantor's compliance with the terms and conditions of this Mortgage. Loan No: 33011610 Ml[cl~ (Continued) (~ ~ ~) Page 2 Compliance with Governmental Requirements, Grantor shall promptly comply with all laws, ordinances, and regulations, now or hereafter in effect, 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, or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Grantor has notified Lender in writing prior to doing so and so long as, in Lender's sole opinion, Lender's interests in the Property are not jeopardized. Lender may require Grantor to post adequate security or a surety bond, reasonably satisfactory to Lender, to protect Lender's interest. Duty to Protect. Grantor agrees neither to abandon or leave unattended the Property. Grantor shall do all other acts, in addition t~ those acts Set forth above in this section, which from.the character and use of the Property are reasonably necessary to protect and preserve the Property. DUE ON SALE - CONSENT BY LENDER. Lender may, at Lender's option, decJare immediately due and payable all sums secured by this Modgage upon the sale or transfer, without Lender's prior;written consent, of all or any part of the Reai Property, or any interest in the Real PrOperty. A "sale or transfer" means the conveyance ~)f Real Property or any right, title or interest in the Real Property; whether legal, beneficial or equitable; whether voluntary or involuntary;- whether by outright sale, deed, installment sale contract, land contract, contract for deed, leasehold interest with a,term greater than three (3) years, lease-option contract, or by sara, assignment, or transfer of any beneficial interest in or to any land trust holding title to the Real Property, or by any Qther 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, water 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 the Property. Grantor shall maintain the Property free of any liens having priority over or equal to the interest of Lender under this Mortgage, except for the Existing Indebtedness referred to in this Mortgage or those liens specifically agreed to in writing by Lender, and except for the lien of taxes and assessments not due as further specified in the Right to Contest paragraph. Right to Contest. Grantor may withhold payment of any tax, assessment, or claim in connection With a good faith dispute over the obligation to pay, so long as Lender's interest in the Property is not jeopardized. Ii 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 requested by Lender, deposit with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender In an amount sufficient to discharge the lien pius any costs and reasonable attorneys' fees, or other charges that could accrue as a result of a foreclosure or sara under the lien. In any contest, Grantor shall defend itself and Lender and shall satisfy any adverse judgment before enforcement against the Properly. Grantor shall name Lender as an additional obiigee under any surety bond furnished in the contest proceedings. Evidence of Payment. Grantor shall upon demand furnish to Lender satisfactory evidence of payment of the taxes or assessments and shall authorize the appropriate governmental official to deliver to Lender at any time a written statement of the taxes and assessments against the Property. Notice of. Construction. Grantor shall notify Lender at least fifteen (15) days before any work is commenced, any services are furnished, or any materials ~re supplied to the Property, if any mechanic's lien, materia]men's lien, or other lien could be asserted on account of the work, services, or materials. Grantor will upon request of Lender furnish to Lender advance assurances satisfactory to Lender that Grantor can and will pay the cost of such improvemenls. PROPERTY DAMAGE INSURANCE, The following provisions relating to insuring the Property are a part of this Mortgage: Maintenance of Insurance. Grantor shall procure and maintain policies of fire insurance with standard extended coverage endorsements on a replacement basis for the full insurable value covering all Improvements on the Real Property ir~ an amount sufficient 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 r~amed as additional insureds in such liability insurance policies. Additionally, Grantor shall maintain such other insurance, including but 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. Gra'ntor shall deliver to Lender certificates of coverage from each insurer containing a stipulation that coverage will not be cancelled or diminished without a minimu~m of ten (10) days' prior writte~l notice to Lender and not containing any disclaimer of the insurer's liability for failure to give such notice. Each insbrance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired in any way by any act, omission or default of Grantor or any other person. Should the Real Property be located in an area designated by the Director of the Federal Emergency Management Agency as a special flood hazard area, Grantor agrees to obtain and maintain Fe~leral Flood Insurance, if available, within 45 days after notice is g~ven by Lender that the Property is located in a special flood hazard area, for the full ur~paid principal balance of tile loan and any prior liens on the~ prol~erty 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 ides 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 the proceeds of any insurance and apply the proceeds to the reduction of the Indebtedness, payment of any lien affecting the Property, or the restoration and repair of the Property, If Lender elects to apply the proceeds to restoration and repair, Grantor shall repair or replace the damaged or destroyed Improvements in a manner satisfactory to Lender. Lender shall, upon satisfactory proof of such expenditure, pay or reimburse Grantor from tile 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 payment in full of the Indebtedness, such proceeds shall be paid to Grantor as Grantor's interests may appear. Unexpired Insurance at Sale. Any Unexpired insurance shall inure to the benefit of, and pass to, the purchaser of the P~operty covered by this Mortgage at any trustee's sale or other sale held under the provisions of this Mortgage, or at any foreclosure sale of such Property. Compliance with Existing Indebtedness. During the period in which any Existing Indebtedness described below is in effect, compliance with the insurance provisions contained in the instrument evidencing such Existing indebtedness shall constitute compliance with the insurance provisions under this Mortgage, to the extent compliance with the terms of this Mortgage would constitute a duplication of insurance requirement. If any proceeds from the insurance become payable on loss, the provisions in this Mortgage for division of proceeds shall apply only to that portion of the proceeds not payable to the holder of the Existing Indebtedness. LENDER'S EXPENDITURES. If any action or proceeding is commenced that would materially affect Lender's interest in the Property or if Grantor fails to comply with any provision of this Mortgage or any Rerated Documents, including but not limited to Grantor's failure to comply w,.th any obligation to maintain Existing indebtedness in good standing as required below, or to discharge or pay when due any amounts Grantor is required to discharge or pay under this Mortgage or any Related Documents, Lender on Grantor's behalf may (but shall not be obligated to) take any action that Lender deems appropriate, including but not limited to discharging or paying all taxes, liens~ security interests, encumb*rances and other claims, at any time levied or placed on the Property and paying ail costs for insuring, maintaining and preserving the Property. All such expenditures incurred or paid by Lender for such purposes will then bear interest at the rate charged under the Note from the date incurre-d or paid by Lender to the date of repayment by Grantor. All such expenses will become a part of the indebtedness and, at Lender's option, will lA) be payable on demand; lB) be added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (1) the term of any applicable insurance policy; or (2) the remaining term of the Note; or lC) be treated as a balloon payment which will be due and payable at the Nora'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. WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the Property are a part of this Mortgage: Title. Grantor warrants that: la) Grantor holds good and marketable title of record to the Property in fee simp[e, free and clear of all liens and encumbrances other than those set forth in the Real Property description or in the Existing Indebtedness section below or in any title insurance policy, title report, or final title opinion issued in favor of, end accepted by, Lender in connection with this Mortgage, and lb) Grantor has the fuli right, power, and authority to execute and deliver this Mortgage to Lender. Def~mse of Title; Subiect to the exception in the paragraph above, Grantor warrants and will forever defend the title to the Property against the lawful claims of all persons. In the event ar~y action or proceeding is commenced that questions Grantor's title or the interest of Lender under this Mortgage, Grantor shaJI defend the action at Grantor's expense. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of 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 With Laws. Grantor warrants that tile Property and Grantor's use of the Property complies with all existing applicable laws, MORTGAGE 0 ~ [ Loan No: 33011610 M1E1 (~'['~"~'~'Y~'~,'~ (Continued) Page 3 ordinances, and regulations of governmental authorities. Survival of Representations and Warranties, All representations, warranties, and agreements made by Grantor in this Mortgage shall survive the execution and delivery of this Mortgage, shall be continuing in nature, and shalt remain in full force and effect until such time as Borrower's Indebtedness shall be paid in full. EXISTING INDEBTEDNESS. The following provisions concerning Existing Indebtedness are a part of this Mortgage: Existing Lien. The lien of this Mortgage securing the Indebtedness' may be secondary and inferior to an existing lien. Grantor expressly covenants and agrees to pay, or see to the payment of, the Existing indebtedness and to prevent any default on such indebtedness, any default under the instruments evidencing such indebtedness, or any default under any security documents for such indebtedness. No Modification. Granter shall not enter'into any agreement with the holder of any mortgage, deed of trust, or other security agreement which has priority over this Mortgage by which that agreement is modified, amended, extended, or renewed without the prior written consent of Lender. Granter shall neither request nor accept any future advances under any such security agreement without the prior written consent of Lender. CONDEMNATION. The following provisions relating to condemnation proceedings are a part of this Mortgage: Proceedings, tf any proceeding in condemnation is filed, Grantor shall promptly notify Lender in writing, and Grantor shall promptly take such steps as may be necessary to defend the action and obtain the award. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of its own choice, and Grantor will deliver or cause to be delivered to Lender such instruments and documentation as may be requested by Lender from time to time to permit such participation. Application of Net Proceeds. If all or any part of the Property is condemned by eminent domain proceedings or by any proceeding or purchase in lieu of condemnation, Let)der may at its election require that all or any portion of.the net proceeds o! the :award be applied to the Indebtedness or the repair or restoration of the Property. The net proceeds of the award shall mean the award after payment of all reasonable costs, expenses, and attorneys' fees incurred by Lender in connection with the condemnation. IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating to governmental taxes, fees and charges are a part of this Mortgage: Current Taxes, Fees and Charges. Upon request by Lender, Grantor shall execute such documents in addition to this Mortgage and take whatever other action is requested by Lender to perfect and continue Lender's lien on the Real Property. Grantor shall reimburse Lender for all taxes, as described below, together with all expenses incurred in recording, perfecting or continuing this Mortgage, including without limitation all taxes, fees, documentary stamps, and other charges for recording or registering this Mortgage. Taxes, The following shall constitute taxes to which this section applies: (1) a specific tax upon this type of Mortgage or upon all or any pad of the Indebtedness secured by this Mortgage; (2) a specific tax on Borrower which Borrower is authorized or required to deduct from payments on the Indebtedness secured by this type of Mortgage; (3) a tax on this type of Mortgage chargeable against the Lender or the holder of the Note; and (4) a specific tax on all or any portion of the Indebtedness or on payments of principal and interest made by Borrower. Subsequent Taxes. If any tax to which this section a~)plies is enacted subsequent to the date of this Mortgage, this event shall have the 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) contests the tax as provided above in the Taxes and Liens section and deposits with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender. SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to this Mortgage as a sec. urity agreement are a part of this Mortgage: Security Agreement. This instrument shall constitute a Security Agreement to the extent any of the Property constitutes fixtures, and Lender shall have all of the rights of a secured party under the Uniform Commercial Code as amended from time to time. Security Interest. Upon request by Lender, Grantor shaI1 execute financing statements and take whatever other action is requested by Lender to perfect and continue Lender's security interest 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 statement, Grantor shall reimburse Lender for all expenses incurred in perfecting or continuing this security interest. Upon default, Grantor shall not remove, sever or detach the Personal Property from the Property. Upon default, Grantor shall assemble any Personal Property not affixed to the Property in a manner and at a place reasonably convenient to Grantor and Lender and make it available to Lender within three (3) days after receipt of written demand from Lender to the extent permitted by applicable law. Addresses. The mailing addresses of Grantor (debtor) and Lender (secured party) from which information concerning the security interest granted by this Mortgage may be obtained (each as required by the Uniform Commercial Code) are as stated on the first page of this Mortgage. FURTHER ASSURANCES; A'CrORNEY-IN-FACT. The following provisions relating to further assurances and attomey-imfact are a part of this Modgage: Further Assurances. At any time, and from time to time, upon request of Lender, Grantor will make, execute and deliver, or will cause to be made, executed or delivered, to Lender or to Lender's designee, and when requested by Lender, cause to be 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 trust, security deeds, security agreements, financing statements, continuation statements, instruments of further assurance, certificates, and other documents as may, in the sole opinion of Lender, be necessary or desirable in order to effectuate, complete, perfect, continue, or preserve (1) Borrower's and Grantor's obligations under the Note, this Mortgage, and the Related Documents, and (2) the liens and security interests created by this Mortgage on the Property, whether now owned or hereafter acquired by Grantor. Unless prohibited by law or Lender agrees to the contrary in writing, Grantor shall reimburse Lender for all costs and expenses incurred in connection with the matters referred to in this paragraph. Attorney-In-Fact. if Grantor fails to do any of the things referred to in the preceding paragraph, Lender may do so for and in the name of Grantor and at Grantor's expense. For such purposes, Grantor hereby irrevocably appoints Lender as Grantor's attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and doing all other things as may be necessary or desirable, in Lender's sole opinion, to accomplish the matters referred to in the preceding paragraph. FULL PERFORMANCE. If Borrower pays all the indebtedness when due, and otherwise performs all the obligations imposed upon Grantor under this Mortgage, Lender shall execute and deliver to Grantor a suitable satisfaction of this Mortgage and suitable statements of termination of any financing statement on file evidencing Lender's security interbst in the 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: Payment Default. Borrower fails to make any payment when due under the indebtedness. Default on Other Payments. Failure of Grantor within the time required by this Mortgage to make any payment for taxes or insurance, or any other payment necessary to prevent filing of or to effect discharge of any lien. Other Defaults. Borrower or Grantor fails to comply with or to 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 Borrower or Grantor. Default in Favor of Third Parties. Should Borrower or any Grantor default under any loan, extension' of credit, security agreen~ent, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially, affect any of Borrower's or any Grantor's property or Borrower's ability to repay the indebtedness or Borrower's or Grantor's ability to perform their respective obligations under this Mortgage or any related document. False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or Grantor or on Borrower's or Grantor's behalf under this Mortgage or the Related Documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter. Defective Collateralization. This Modgage or any of the Related Documents ceases to be in full force and effect (including failure of any collateral ,document to create a valid and perfected security interest or lien) at any time and for any reason. Death or Insolvency. The dissolution of Grantor's (regardless of whether election to continue is made),'.any member withdraws from the limited liability company, or any other termination of Borrower's or Grantor's existence as a going business or the death of any member, the insolvency of Borrower or Grantor, the appointment of a receiver for any part of Borrower's or Grantor's property, any assignment for the benefit of creditors, any Loan No: 33011610 M1E~~'~2~:';~-j ~'~','If:' MORTGAGE ~ _ (Continued) 0 3 2 Page 4 type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower or Grantor. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower or Grantor or by any governmental agency against any property securing the Indebtedness, This includes a garnishment of any of Borrower's or Grantor's accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Borrower or Grantor as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower or Grantor gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute. Existing Indebtedness. The payment oi any insiallment of principal or any interest on the Existing Indebtedness is not made within the time required by the promissory note evidencing such indebtedness, or a default occurs under the instrument securing such indebtedness and is not cured during any applicable grace period in such instrument, or any suit or other action is commenced to foreclose any existing lien on the Propedy. Breach of Other Agreement. Any breach by Borrower or Grantor under the terms of any other agreement between Borrower or Grantor and Lender that is not remedied within any grace period provided therein, including without limitation any agreement concerning any indebtedness or other obligation of Bo!rower or Grantor to Lender, whether existing now or later. Events Affecting Guarantor, Any of the preceding events occurs with respect to any Guarantor of any of the Indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness. In tile event of a death, Lender, at its option, may, but shall not be required to, permit the Guarantor's estate to assume unconditionally the obligations arising under the guaranty.in a manner satisfactory to Lender, and, in doing so, cure any Event of Default. Adverse Change. A material adverse change occurs in Grantor's financial condition, or Lender believes the prospect of payment or performance of the Indebtedness is impaired. Right to Cure. if Such a failure is curable and if Borrower or Grantor has not been given a notice of a breach of the same provision of this Mortgage within the preceding twelve (12) months, it may be cured (and no Event of Default will have occurred) if Borrower or Grantor, a~ter Lender sends written notice demanding cure of such failure: (a) cures the failure within fi~een (15) days; or (b) if the cure requires more than fifteen (15) days, immediately initiates steps sufficient to cure the failure and thereafter continues and compretes a~l reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default and at any time thereafter, Lender, at Lender's option, may exercise any one or more of the following rights and remedies, in add~tion to any other rights or. remedies provided by law: Accelerate Indebtedness, Lender shalt have the right at it option without notice to Grantor to declare the entire indebtedness immediately due and payable, including any prepayment penalty which Grantor wouid be required to pay. UCC Remedies. With respect to all or any pad of the Personal Properly, Lender shall have all the rights and remedies of a secured pady under the Uniform Commercial Code. Collect Rents. Lender shall have the right, without notice to Borrower or Grantor, to take possession of the Properly, 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 costs', against the indebtedness. In fudherance of this right, Lender may require any tenant or other user of the Property to make payments of rent or use fees directly to Lender. If the Rents are collected by Lender, then Grantor irrevocably designates Lender as' Grantor's a~orney-in-[act to endorse instruments received in payment thereof ~n 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 the payments are made, whether or not any proper grounds for the demand existed. Lender may exercise its rights u~der this subparagraph either in person, by agent, or through a receiver. Appoint Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any pad of the Propedy, with the power to protect and preserve the Prope~y, to operate the Properly preceding foreclosure or sale, and to collect the Rents from the Properly and apply the proceeds, ove[ and above the cost of the receivership, against the indebtedness. The receiver may serve without bond if permi~ed by ~aw. Lender's right to the appointment of a rece vet shall exist whether or not the apparent value of the Properly exceeds the Indebtedness by a substantial amount. Employment by Lender shall not disqualify a person from serving as a receiver. Judicial Foreclosure, Lender may obtain a judicial decree foreclosing Grantor's interest in all or any pa~ of the Properly. Nonjudicial Sale. Lender may foreclose Grantor's interest in all or in any pad of the Prope~y by non-judicial sale, and specifically by "power of sale" or "advedisement and sale" fgreclosure as provided by statute. Deficiency Judgment. If permi~ed by applicable law, Lender may obtain a judgment for any deficiency remaining in the Indebtedness due to Lender after application of all amounts received from the exercise of the rights provided in this section. Tenancy at Sufferance. If Grantor remains in possession of the Property after the Properly is sord as provided above or Lender othe~ise becomes entitled to possession of the Properly upon default of Grantor, Grantor shall become a tenant at sufferance of Lender or the purchaser of the Property and shall, at Lender's option, either (1) pay a reasonable rental for the use of the Properly, 0r (2) vacate the Properly immediately upon the demand of Lender. Other Remedies. Lender shall have all other rights and ?medies provided in this Modgage 0r the Note or available at law or in equity, Sale of the Property, To the extent permitted by applicable law, Borrower and Grantor hereby waives any and all right to have the Properly marshatled, In exercising its rights and remedies, Lender shah be free to se~l all or any pad of the Propedy together or separately, in one sale or by separate sales. Lender shall be entitled to bid at any pubJic saie on ail or any potion of the Property. Notice of Sale. Lender shall give Grantor reasonable notice of the time and place of any public s~le of the Personal Properly or of the time after which any private sale or other ~ntended disposition of the Personal Properly is to be made. Reasonable notice shall mean notice given at least ten (10) days before the time of the sate or disposition. Any sa~e of the Personal Properly may be made in conjunction with any sale of the Real Properly. Election of Remedies, Election by Lender to pursue any remedy shall not exclude pursu'it of any other remedy, and an election to make expenditures or to take action to pedorm an obligation of Grantor under this Modgage, after Grantor's failure to pedorm, shall not affect Lender's right to declare a defauJt and exercise ~ts remedies. Nothing under this Modgage or othe~ise shall be construed so as to limit or restrict the rights and remedies available to Lender following an Event of Default, or Jn any way to limit or restrict the rights and ability of Lender to proceed directly against Grantor and/or Borrower and/or against any other co-maker, guarantor, surety or endorser and/or to proceed against any other collateral directly or indirectly securing the Indebtedness. Attorneys' Fees; Expenses. If Lender institutes any suit or action to enforce any of the terms of this Modgage, Lender shatl be entitled to recover such sum as the coud may adjudge reasonabie as a~orneys' fees at trial and upon any appeal. Whether or not any coud action is involved, and to the extent not prohibited by law, afl reasonable expenses Lender incurs that in Lender's opinion are necessary at any time for'the protection of its interest or the enforcement of its rights shall become a pad of the Indebtedness payable on demand and shall bear interest at the Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph include, without mitation however subject to any limits under applicable law, Lender's reasonable a~orneys' fees and Lender's/egal expenses whether or not there is a lawsuit, including reasonable a~orneys' ~ees and expenses for bankruptcy proceedings (including effo~s to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services, the cost of searching records, obtaining title repods (including foreclosure repods), surveyors' repo~s, and appraisal fees and titre insurance, to the extent permiffed by applicable Jaw. Grantor also will pay any cou~ costs, in addition to all other sums provided by law. NOTICES. Any notice required to be given under this Modgage, including without limitation any notice of default and any notice of sale shall be given in writing, and shall be effective when actually deJivered, when actually received by te~efacsimiJe (unless othe~ise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United Stat~s mail, as first class, ce~ified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Mo~gage. All copies of notices of foreclosure from the holder of any lien which has priority over this MoHgage shall be sent to Lender's address, as shown near the beginning of this Modgage. Any pady may change its address for notices under this Modgage by g~ving forma~ written notice to the other padies, specifying that the purpose of the notice is to change the pady's address. For notice purposes, Grantor agrees to keep Lender informed at ail times of Grantor's' current address. Unless othe~ise provided or required by law, if there is more than one Grantor, any notice given by Lender to any Grantor is deemed to be notice given to all Grantors. MORTGAGE ~,~ ~' ~l'~'f'~. Loan No: 33011610 M1E1 ~-~ ~' ~-~'~,', (Continued) 0 3 ~ Page 5 MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Mortgage: Amendments. This Mortgage, together with any Related Documents, 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 Properly is used for purposes other than Grantor's residence, Grantor shall furnish to Lender, upon request, a certified statement of net operating income received from the Property during Grantor's previous fiscal year in such form and detail as Lender shall require. "Net operating income" shall mean all qash receipts from the Property less all cash expenditures made in connection with the operation of the Properly. ' . Caption Headings. Caption headings in this Mortgage are for convenience purposes only and are not to be used to interpret or define the provisions of this Mortgage. ~ , Governing Law. This Mortgage will be governed by, construed and enforced in accordance with federal law and the laws of the State of Wyoming. This Mortgage has been accepted by Lender in the State of Wyoming. - Choice of Venue,' If there is a lawsuit, Grantor agrees upon Lender's request to submit to the jurisdiction of the courts of Teton County, State of Wyoming. Joint and Several Liability; All obligations of Borrower and Grantor under this Mortgage shall be joint and several, and all references to Grantor ' shall mean each and every Grantor, and ali references to Borrower shall mean each and every Borrower. This means that each Borrower and Grantor signing below is responsible for all obligations in this Mortgage. No Waiver b~ 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 the 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 pre]udice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Mortgage. NO prior waiver by Lender, nor any course of dealing between Lender and Grantor, shall constitute a waiver of any of Lender's rights or of any of Grantor's obJigations as to any future transactions. Whenever the consent of Lender is required under this Mortgage, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender. Severability. If a court of competent jurisdiction finds any provision of this Mortgage to be illegal, invalid, or unenforceable as to any person or circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other person or circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall be considered deleted from this Mortgage. Unless otherwise required by law, the illegality, invalidity, Qr unenforceability of any provision of this Mortgage shall not affect the legality, Validity or enforceability of any other provision of this Mortgage. Merger. There shall be no merger of the interest or estate created by this Modgage 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 blinding upon and inure to the benefit of the padies, their successors and assigns. If ownership of the Property becomes vested in a person other than Grantor, Lender, without notice to Grantor, may deal with Grantor's successors with reference to this Mortgage and the indebtedness by way of forbearance or extension without releasing Grantor 'from the obligations of this Mortgage or liability under the indebtedness. Time Is of the Essence. Time is of the essence in 'the performance of this Mortgage. Waiver of Homestead Exemption. Grantor hereby releases and Waives all rights and benefits of the homestead exemption laws of the State of Wyoming as to all Indebtedness secured by this Modgage. DEFINITIONS. The following capitalized words and terms shall have the following meanings when used Jn this Mortgage. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. 'Words and terms not otherwise defined in this Mortgage shall have the meanings attributed to such terms in the Uniform Commercial Code: Borrower, The word "Borrower" means Wyoming West Designs LLC, a Wyoming limited liability company, and all other persons and entities signing the Note in whatever c~acity. ' Default. The word "Default" means the Default set forth in this Mortgage in the section titled "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 without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Supertund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable state or federal laws, rules, or regulations adopted pursuant thereto. Event of Default. The words "Event of Default" mean any of the events of default set forth in this Mortgage in the events of default section of this Mortgage. Existing Indebtedness. The words '!Existing Indebtedness" mean the indebtedness described in the Existing Liens provision of this Mortgage. Grantor. The word "Grantor" means Elizabeth D. Talermo and Harry V. Talermo. Guarantor. The word "Guarantor" means any guarantor, surety, or accommodation party of any or all of the Indebtedness. Guaranty, The word "Guaranty" means the guaranty from Guarantor to Lender, including without limitation a guaranty of all or part of the Note. Hazardous Substances. The words "Hazardous Substances" mean materials that, because of tl_~eir quantity, concentration or physical, chemical or infectious characteristics, may cause or pose a present or potential hazard to human health or the environment when improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handled. Th.e words "Hazardous Substances" are used in their very broadest sense and include without limitation any and ail hazardous or toxic substances, materials or waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances" also includes, without limitation, petroleum and petroleum by-products or any fraction thereof and asbestos. Improvements. The word "improvements" means all existing and future improvements, buildings, structures, mobile homes affixed on the Real Property, facilities, additions, replacements and other construction on the Real Property. Indebtedness. The word "indebtedness" means ali principal, interest, and other amounts, costs and expenses payable ut]der the Note or Related Documents, together with all renewals of, extensions of, modifications of, consolidations of and substitutions for the 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 The Jackson State Bank, its successors and assigns. Mortgage. The word "Mortgage" means this Mortgage between Grantor and Lender. Note. The word "Note" means the promissory note dated November 2, 2001, in the original principal amount of $500,000,00 from BorroWer to Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the promissory note or agreement. Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter owned by Grantor, and now or hereafter attached or affixed to the Real Property; together with ali accessions, parts, and additions to, all replacements of, and all substitutions for, any of such property; and together with all proceeds (including without limitation all insurance proceeds and refunds of premiums) from any sale or other disposition of the Property. PrOperty. The Word "Property" means collectively the Real Property and the Personal Property. Real Property. The words "Real Property" mean the real property, interests and rights, as further described in this Mortgage. Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments, MORTGAGE 0 ~'~'~'~'~j ~.~ Loan No: 33011610 MIE1 (Continued) 0 3 ~ Page 6 agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. Rents. The word "Rents" means all present and future rents, revenues, income, issues, royalties, profits, and other benefits derived from the Property. EACH GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND EACH GRANTOR AGREES TO ITS TERMS. GRANTOR: ' ' lizabeyD. Talerm0; In~vldually - Harry V. T~.e.~o, Individually INDIVIDUAL ACKNOWLEDGMENT On this day before me, the undersigned Notary Public, personally appeared Elizabeth D. Talermo, to me known to be the individual described in and who executed the Modgage, and acknowledged that he or she signed the Modgage as his or her free and voluntary act and deed, for the uses and purposes therein mentioned. Given un~er my hand and official s~al this Notary Public In and for the State of a)~d~tc~ My commission expires INDIVIDUAL ACKNOWLEDGMENT c ~- ~ f ~ / ' ~ ' ~ stateor On this day before me, the undersigned Notary Public, personally appeared Harry V. Talermo, to me known to be the individual described In and who executed the Mortgage, and acknowledged that he or she signed the Mortgage as his or her free and volunta~ act and deed, for the uses and purposes therein mentioned. Given~er my hand and off~ial"seal this By ~/~ .~,~ ~ Residing at Notary Public In and for the State of__ ~J.~ MY commissl~ expires EXHIBIT "A" Parcel 1 Part of Section 22, T36N R119W of the 6th P.M., LinColn County, Wyoming being more particularly described as follows: Beginning at a point N 89°50, W, 1485.98 feet and South 1980 feet from the Northeast corner of said Section 22 and running thence N 89°50, W, 505.5 feet; thence South 431 feet; , thence S 89050, E, 505.5 feet; ,~ thence North 431 feet to the point of beginning. Parcel 2 That part of Section 22, T36N Rll9W of the 6th P.M., Lincoln County, Wyoming described on Exhibit A prepared by Marlowe A. Scherbel labeled "Thomas A. Barr and Monica J. Bart, Tract B'. THOM~,~ g. BARR ~D HO~XUA ~. To-~t ~ - - That part of the S~H and that i.~a~:'t: (',~ th~ ).l).t~H~;~t c)f ~ie<;t.[o~ ~2, 346 of Photoatatic R~cord~ (:,.u~ paU~.~ ?3 dc.,J.~:lbc, d CO~ENCING n~ the northeast corn~:~ o~ said Section 22, :ound dc~oribe~ in the Co,nut Record ~ll~d In maid O~ftce) ~henc~ N89~-S0,-00,,N, the BASE BEARING for t}]i~ ourvey, fa~t, ~lou~ the north line o~ said Seutiol~ 22, no Cb..: nort'.h~ ~aet corn=r o~ Aspen Hill Subdivision o~ record in ~aid as Plat No. 109; thenc~ South, ~980.08 ~aet, alon~ the east boundary of said Subdivision, to the moutNaast corner thenc~ S00"-O3,00"w, 4]0,43 fs~t, along the 8asr ]ii~e'of tract of record in said O~flce in BOok 313 of Records on palm 559, to thm BATa~Y OF thenom NBg"-51'-35"W, 504.84 feat, alon~ the 8curb lin~ 0fi said ~ract in Book 313, to th~ southwest corntl' tller~o~, ma;'.'k(~(l a bathey; th(~llU~ coiltinuinq N09"-51'-35"W, 175,14 f~et, to ~ sp{R0: centerline o~ Alpine Hills Drive, of record in tile 8~.i.d iii.Book 346 of .Photsega~ic Records on page 72; thenc,~ coursil]~ ~ta.Ld centerllne as follows: 554"-17'-39"E, 11,95 te~t, to a spire; S77~-21'-]0"E, 184.94 f~et, to a spJ. ku; SsJ"-lT, 15"E, 543.65 fe~t to the nc)rthw°ot corner' of Miut~, Meadow Eetatu~ of record in s~id OtLice 'as '~lat No. Common to the southwos= corner of that tract .o~ record Ju civics in Book 105 of Photostatic Record~ on page 220; thence N00"-49'~4~"W, .:290~21 f~t, ~l~ng..th~.We~t '~'~ tract in ~ook 105' to"~h~ B~TH~Y OF ~EGI~ING; .: ? ~ : ~:~'