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HomeMy WebLinkAbout890323040~7854 RECORDATION REQUESTED BY: The Jackson State Bank & Trust Main Office P.O. Box 1788 112 Center Street Jackson, WY 83001 WHEN RECORDED' MAIL .TO: The Jackson State Bank & Trusl P.O. Box 1788 112 Center Street Jackson, WY 83001 .8903 3 _ BOOK · M-:~: PR PAGE ' RECEIVED LINCOLr',] OOJNTY CLERK SEND TAX NOTICES TO: The Jackson State Bank & Trust Main Office P.O. Box 1788 112 Center Street Ja(;:k~,on, WY 83001 SPACE ABOVE THIS LINE IS FOR RE(~ORDER'~ USE ONLY t~ MORTGAGE ~" I'MAXlMUM LIEN. The lien of this Mortgage shall not exceed at any one time $207,000.00. THIS MORTGAGE dated May 29, 2003, is made and executed between Denton L. Kanouff, husband, whose address is P.O. Box 12865, Jackson, WY 83002-2865 and Yvette M. Kanouff, wife, whose address is P.O. Box 12865, Jackson, WY 83002-2865 (referred to below as "Grantor") and The Jackson State Bank & Trust, 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 morlgages and conveys 1o Lender all of Grantor's right, title, and interes{ in and to the following described real property, together with all existing or subsequently erected or affixed buildings, improvements and fixtures; all easements, righls of way, and appurtenances; all waler, water rights, watercourses and ditch rights (including stock in utilities with ditch or irrigation righls); and all other rights, royalties, and profits relating to the real property including without limitation all minerals, oil, gas, geothermal and similar matters, (the "Real Property") located in Lincoln County, State of Wyoming: 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 332 Meadow Drive, Alpine, WY 83128. The Real Property tax idenbfication number is 37182940010800 Grantor presently assigns to Lender all of Grantor's right, title, and interest in and to alt present and future leases of the Property and all Rents from the Property. In addition, Grantor grants to Lender a Uniform Commercial Code securily 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 THE NOTE, THE RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: PAYMENT AND PERFORMANCE. Except as otherwise provided in this Mortgage, Grantor shall pay to Lender all amounts secured by this Mortgage as they become due and shall strictly perform all of Grantor's obligations under this Mortgage. POSSESSION AND MAINTENANCE OF THE PROPERTY. Grantor agrees that Grantor's possession and use of the Property shall be governed by the following provisions: Possession and Use. Until the occurrence of an Event of Default, Grantor may (1) remain in possession and control of the Property; (2) use, operate or manage the Properly; and (3) collect the Rents from the Property. Duty 1o Maintain. Grantor shall maintain the Property in tenantable condition and promptly perform all repairs, replacements, and mainlenance necessary lo preserve its value. Compliance Wilh Environmental Laws. Grantor represents and warrants to Lender that: (1) During the period of Grantor% ownership of the Property, there has been no use, generation, manufacture, storage, trealmenl, 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 ~r threatened release of any Hazardous Substance on, under, about or from the Property by any prior owners or occupants of the Property, or (c) any actual or threatened litigation or claims of any kind by any person relating to such matters; and (3) Except as previously disclosed to and acknowledged by Lender in writing, (a) neither Grantor nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from the Property; and (b) any such activity shall be conducted in compliance 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 Io Grantor or to any other person. The representations and warranties contained herein are based on Grantor's due diligence in invesligating the Property for Hazardous Substances. Grantor hereby (1) releases and waives any future claims against Lender for indemnity or contribulion in lhe event Grantor becomes liable for cleanup or other costs under any such taws; 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 paymenl of the Indebtedness and the satisfaction and reconveyance of the lien of this Mortgage and shall not be affected by Lender's acquisition of any interest in the Property, whether by foreclosure or otherwise. Nuisance, Waste. Grantor shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any stripping of or waste on or to the Property or any portion of the Property. Without limiting the generality of the foregoing, Grantor will not remove, or grant to any other party the right to remove, any timber, minerals (including oil and gas), coal, clay, scoria, 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 Property without Lender's prior written consent. As a condition to the removal of any Improvements, Lender may require Grantor to make arrangements satisfactory to Lender to replace such Improvements with Improvements of at least equal value. Lender's Right to Enter. Lender and Lender's agents and representatives may enter upon lhe Real Property 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. Compliance with Governmenlal 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 to 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. Loan No: 33014960 MORTGAGE (Continued) ~ ~ ? Page 2 DUE ON SALE - CONSENT BY LENDER. Lender may, at Lender's option, declare immedialely 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 Real Property, or any interest in the Real Property. A "sale or transfer" means the conveyance of Real Properly or any'right, title or interest in the Real Properly; whether legal, beneficial or equitable; whether voluntary or involuntary; whether by outright sale, deed, installment sale contract, land contracl, contract for deed, leasehold interest with a term greater than three (3) years, lease-option contract, or by sale, assignment, or transfer of any beneficial interest in or to any land trust holding lille to the Real Properly, or by any other method of conveyance of an interest in the Real Property. However, this option shall not be exercised by Lender if such exercise is prohibited by federal law or by Wyoming law. TAXES AND LIENS. The following provisions relating to the laxes and liens On the Property are part of this Modgage: Paymenl. 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 Properly free of any liens having priority over or equal to the interest of Lender under this Mortgage, except for those liens spacifically agreed to in wriling 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 fo pay, so long as Lender's interest in the Property is not jeopardized. If a lien arises or is flied 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 sCficient corporate surety bond or other security satisfactory 1o Lender in an amount sufficient to discharge the lien plus any costs and reasonable attorneys' fees, or other charges lhat could accrue as a result of a foreclosure or sale 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 obligee 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 Construclion. Grantor shall notify Lender at least fifteen (15) days before any work is commenced, any services are furnished, or any materials are supplied to lhe Property, if any mechanic's lien, materialmen's lien, or other lien could be asseded 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 improvements. PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the Properly 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 in an amount SLJfficient to avoid application of any coinsurance clause~ and with a standard mortgagee clause in favor of Lender. Grantor shall also procure and maintain comprehensive general liability insurance in such coverage amounts as Lender may request with Lender being named as additional insureds in such liability insurance policies. Additionally, Grantor shall maintain such other insurance, including 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. Grantor shall deliver to Lender certificates of coverage from each insurer containing a stipulalion that coverage will not be cancelled or diminished wiihout a minimum of ten (10) days' prior written notice 1o Lender and not containing any disclaimer of the insurer's liability for failure to give such notice. Each insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired in anyway 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 Federal Flood Insurance, if available, within 45 days after notice is given by Lender that the Properiy is 10cared in a special flood hazard area, ior the f011 unpaid principal balance of the loan and any prior liens on the properly securing the loan, up to the maximum policy limits sel under lhe National Flood Insurance Program, or as olherwise required by Lender, and 1o maintain such insurance for the term of the loan. Application of Proceeds. Grantor shall prc~rnPtly not fy Lender of any loss or damage to the P~operty. Lender may make proof of Io~s 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, paymenl of any lien affecting the PrOperly, or the restoration and repair of the Property. If Lender elects to apply the proceeds 1o 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 Granlor from the proceeds for the reasonable cost of repair or restoration if Grantor is not in default under this Mortgage. Any proceeds which have not been disbursed within 180 days after lheir receipt and which Lender has not committed t° the repair or restoration of the Property shall be used first to pay any ambunt oWihg to'Lende~ udder this Mortgage, then' to Pay accrued inlerest, and the remainder if any , , 'shall be applied to the principal balance of the Indebtedness. If Lender holds any proceeds alter payment in full of the Indebtedness, such proceeds shall be paid to Grantor as Grantor's interests may appea~:. ' LENDER'S EXPENDITURES. If any action or proceeding is commenced [hat would materially affecl Lender's interest in the Property or if Grantor Iails to comply with any provision of this Mortgage or any Related Documents, including but not limited to Granlor's failure 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 (bul shall not be obligaled to) take any action that Lender.deems appropriate, including but nol limited to discharging or paying all taxes, liens, security interests, encumbrances and other claims, at any time levied or placed on the Property and paying all costs for insuring, maintaining and preserving lhe 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 incurred or paid by Lender to the date of repayment by Grantor. All such expenses will become a part of lhe Indebtedness and, at Lender's option, will (A) be payable on demand; (B) be added to the balance of the Note and be appodioned among and be payable with any installment payments to become due during either (1) lhe term of any applicable insurance policy; or (2) lhe remaining term of the Note; or (C) be treated as a balloon payment which will be due and payable al the Note's maturity. The Mortgage also will secure paymer~t of these amounts. Such right shall be in addition to all other rights and remedies to which Lender may be bntitled upon Default. ' ' ' ',~ WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the Properly are a part of this Mortgage: Tille. Grantor warrants that: (a) Grantor holds good and marketable title of record to lhe Properly in fee simple, free and clear Of all liens and encumbrances other than those set to?th in the Real P~operty description or in any tille insurance policy, title repod, or final title opinion issued favor of, and accepted by, Lender in connection with this Morlgage, and (b) Grantor has the full right, power, and authority to execute and deliver this Modgage to Lender. ~ . Defense of Tille. Subject to the exception in the paragraph above, Grantor warrants and will forever defend the title to the Pr:operty againsl the lawful claims of all persons. In lhe e~ent any action or proceeding is commenced that questions Grantor's title or the interest of Lender under this Mortgage, Grantor shall defend the action al Grantor's expense. Granlor may be lhe nominal party in such proceeding, but Lender shall be entitled to padicipate in lhe 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 Wilh Laws.- Grantor-warrants ihat the Property and Grantor's use of lhe Properly complies witt~ 'all existing applicable laws, ordinances, and regulations of governmenlal authorities. Survival of RepreSentations'and Warranlies. All representations, warranties, and agreemenls made b~, Grantor in this Modgage Shall survive lhe execution and delivery of this Mortgage shall be continuing in nature, and shall remain in full force and effect until such time as Grantor's Indebtedness shall be paid in full. ' ....... CONDEMNATION. The following provisions relating to condemnation proceedings are a pad of this Mortgage: Proceedings. If any proceeding i~ 'co~demna[io~· i's filed, 'Grant'or shall promptly notify Lender in writing, and Grantor shall promptly lake 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 padicipate in the proceeding and to be represented in the proceeding by counsel ut its own choice, and Grantor will deliver or cause to be delivered t~ Lender such instrumedts., and d0cume~tation~, as may be requested by I~ender from time to time'to pern:'iit such Padicipati0n 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, Lender may at its election require that all or any p0rlion of the net proceeds ut 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 reasonab e costs expenses, and attorneys' fees incurred by Lender in'connection with the condemnatidhl · ' :' IMPOSITION OF TAxEs, FEES ANi~ ~I~,~i~G~S B'~'~'0VERNMENTAL AUTHORiTiEs. The' foll'0wing provisions relating to governmental taxes, fees and charges are a part of this Mortgage: (Continued) _;t_ ~ 8 Page 3 Loan No: 33014960 Current Taxes, Fees and Charges. Upon request by Lender, Grantor shall execute such documents in addition to this Modgage and take whatever other action is requested by Lender to perfect and continue Lender's lien on the Real Properly. 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 Modgage. 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 Mortgag~"'i 2) '" a:~§~3ecific:tax on Grantor wh ch Grantor is'~au horized or required to deduct from payments on the Indebtedness secured by this type of Modgagei: (3) a tax on this type of Mortgage chargeable against the Lender or the holder of lhe Note; and (4) a specific tax on all or any portion of lhe Indebtedness Or: on payments of principal and interest made by Grantor. Subsequenl Taxes. If any tax to which this section applies is enacted subsequent to the date of this Modgage, 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 Modgage as a security agreement are a pad of this MoHgage: Security Agreement. This inslrument shall constitute a Security Agreement to the extenl any of the Properly 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 shall 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 Properly. In addition to recording this Mortgage in the real properly records, Lender may, at any time and without fudher authorization from Grantor, file executed counterpads, 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 Irom 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 pady) 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; ATTORNEY-IN-FACT. The following provisions relating to further assurances and attorney-in-fact are a part of this Mortgage: Further Assurances. At any time, and from time to time, upon request of Lender, Grantor will make, execute and deliver, or wil. I 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 slatements, 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) Grantor's obligations under the Note, this Mortgage, and the Related Documents, and (2) the liens and security interests created by this Mortgage as first and prior liens on the Properly, 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 lhe matters referred to in this paragraph. Altorney-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 Grantor pays all the Indebtedness when due, and otherwise performs alt the obligations imposed upon Grantor under this Mortgage, Lender shall execute and deliver to Grantor a suitable satisfaction of this Modgage and suitable statements of termination of any financing statement on file evidencing Lender's security interest in the Rents and the Personal Properly. 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. Grantor fails to make any payment when due under the Indebtedness. Default on Other Payments. Failure of Grantor within the time required by this Modgage 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 Defaulls. 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 Grantor. Defaull in Favor of Third Parties. Should Grantor default under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any ot Grantor's property or Grantor's ability to repay the Indebtedness or Grantor's ability to perform Grantor's obligations under this Mortgage or any related document. False Statements. Any warranty, representation or statement made or furnished to Lender by Grantor or on 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 al any time thereafter. Defective Collaterallzatlon. 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 death of Grantor, the insolvency of Grantor, the appointment of a receiver for any pad of Grantor's properly, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Grantor. Credllor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whelher by judicial proceeding, self-help, repossession or any other method, by any creditor of Grantor or by any governmental agency against any property securing the Indebtedness. 'This includes a garnishment of any of Grantor's accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Grantor as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and it 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 amounl determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute. Breach of Other Agreement. Any breach by Grantor under the terms of any other agreement between Grantor and Lender that is not remedied within any grace period provided therein, including without limitation any agreement concerning any indebtedness or other obligation of Grantor to Lender, whether existing now or later. Events Affecting Guarantor. Any of the preceding events occurs with respect to any guarantor, endorser, surety, or accommodation party'of any of the Indebtedness or any guarantor, endorser, surety, or accommodation party dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness. In the event of a death, Lender, al 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 Grantor has not been given a notice of a breach of the same provision of this Mortgage within the preceding Iwelve (12) months, it may be cured (and no Event of Default will have occurred) if Grantor, after Lender sends writlen notice demanding cure of such failure: (a) cures the failure within fifteen (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 compleles all 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 addition to any other righls or remedies provided by law: Accelerate Indebtedness. Lender shall have the right at its option without notice to Grantor to declare the entire Indebtedness immediately due O~i~O~G MORTGAGE Loan No: 33014960 (Continued) Page 4 and payable, including any prepayment penalty which Granlor would be required to pay. UCC Remedies. With respect to all or any pad of the Personal Property, 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 Grantor, lo take possession of the Properly, including during the pendency 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 Properly 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 attorney-in-fact lo endorse instruments received in payment thereol in the name of Grantor and to negotiate the same and collect the proceeds. Payments by tenants or other users to Lender in response to Lender's demand shall satisfy the obligations for which the payments are made, whether or nol any proper grounds for the demand existed. Lender may exercise ils rights under this subparagraph either in person, by agent, or through a receiver. Appoinl Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any pad of the Properly, wilh the power to protect and preserve the Properly, to operate the Properly preceding foreclosure or sale, and lo collect the Rents from the Properly and apply the proceeds, over and above the cost of the receivership, against the Indebtedness. The receiver may serve without bond if permitted by law. Lender's righl to the appointment of a receiver shall exist whether or not the apparent value Gl the Property 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 pad of the Property. Nonjudicial Sale. Lender may foreclose Grantor's interest in all or in any part of the Property by non-judicial sale, and specifically by "power of sale" or "advedisement and sale" foreclosure as provided by statute. Deficiency Judgment. If permitted by applicable law, Lender may obtain a judgment for any deficiency remaining in the Indebtedness due Io 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 Property is sold as provided above or Lender otherwise becomes entitled to possession of the.Property upon default of Grantor, Grantor shall become a tenant at sufferance of Lender or the purchaser of the Property and shall, at Lender's optic.n, either (1)' pay a reasonable rental for the use of the Property, or (2) vacate the Property immediately upon the demand of Lender. ' Olher Remedies. Lender shall have all olher rights and remedies provided in this Mortgage or the Note or available at law or in equity. Sale of lhe Pr0perty. ' T0 t~e extedf p~?miit~d by applicable law, Grantor hereby waives ~ny 'and all right to ha~)e the Propedy mai*shalled. In exercising its rights and remedies, Lender shall be free to sell all or any part of the Properly together or separately, in one sale or by separate sales. Lender shall be entitled to bid at any public sale on all or any portion of lhe Properly. Notice of Sale. Lende~ shall give Grantor reasonable 'notice of the time and place o'f any'public sale of the Personat pr'O;Pedy Or Of the time after which any private sale or other inlended disposition of the Personal Propedy is to be made. Reasonable notice shall mean notice given al least ten (10) days before the time of the sale or disposition.' Anysale of the Personal'Properly may be madein cOnjunctiOn with any'sale of the Real Properly. ~. Election of Remedies. Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or.to take action to perform an obligation of Grantor under this Modgage, after Grantor's failure to perform, shall not affect Lender's right to declare a default and exercise its remedies. Nothing under this Modgage or otherwise shall be construed so as to limit or restrict the rights and remedies available to Lender following an Event of Default or in any way to limit or restr ct the r ghts and ability of Lender to proceed directly against Granior an'd/or against ~ny Other 'co-~maker guarantor, surety or endorser and/or to proceed aga nsf any other collateral directly or indirectly securing the Indebtedness.` ..... · Atlorneys' Fees; Expenses. If Lender institutes any suit 'or action to enforce any of the' terms of this Modgage, Lender shall be entitled to recover such sum as the court may adjudge reasonable aS attorneys' fees at trial and Upon any appeal. Whether or not any coud action is involved, and to the extent not prohibited by law, all reasonable exl~enses Lender incurs lhat in Lender's opinion a're necessary at any time for the protection of ils interesl or the enforcement of ils rights shall become a part of the Indebtedness payable on demand and shall bear interest at the Note rate from the date of the expenditure until repaid.. Expenses covered by this paragraph include, without limitation, however subject to any limits under applicable law, Lender's reasonable attorneys' fees and Lender's legal expenses whether or not there is a lawsuit, including reasonable attorneys' fees and expenses for bankrup!cy proceedings (including effods to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services, the cost of searching records, obtaining title reports (including foreclosure reports), surveyors' reports, and appraisal fees and title insurance, to the extent permitted by applicable law. Grantor also will pay any coud 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 delivered,when actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, cedified or registered mail postage prepaid, directed to lhe addresses shown near the beginning of this Modgage. All copies of notices ct foreclosure from the holder of any lien which has priority over this Mortgage Shall be sent to Lender's address, as shown near the beginning of this Modgage. Any pady.may change its address for notices under this Modgage by giving formal written notice to the other pad/es, specifying-that the purpose of the notice is Io change the party's address. For notice purposes, Grantor agrees to keep Lender informed at all times of Grantor's current address. Unless otherwise provided or required by law, if there is more than one. Grantor, any notice given by Lender to any Grantor is deemed to be notice given to all Grantors'. · .-. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Modgage: AmendmenlS. This Mo~tgage,"t0gett~er ~Vith~ any Related Documents, constitutes the eniire Understanding and agreement Of'the parties as to the matters set fodh in this Modgage. No alteration of or amendment to this Mortgage shall be effective unless given in writing and signed by the pady or pad/es sought to be charged oi' b0bhd by the alteration or amendment. Annual Reports. If the Propedy is used for purposes' other than Grantor's residence, Grantor shalt furnish to Lender, upon request, a ced/f/ed statement of net operating income.received from the Properly during Grantor's previous fiscal year in such form and detail.as Lender shall require. "Net operating income" shall mean all cash receipts from the Property less all cash expenditures made in connection with the operation of the Property. CaptiOn Headings.' Caption 'he~:ding§"in t'his Mortgage are for Cohv~nJen~e'PUrp0~S only and are noi 10be ~sed to interprel 'or define the provisions of this Mortgage. Governing Law. This Mortgage w/ii' be 'g°v~:ned by constrbed and enfdr~:ed ih"ac~'6~:dari~'e'with federal laWand the law~ of th~ 'State of Wyoming. Thls MOrtgage has bee'r~'accePted,by Lender in Ihe State of wyoming. '' r . . .... Choice of Venue. If there is a lawsuit, Grantor agrees upon Lender's request to submit to the jurisd ct on of the couds of.Teton County, State of Wyoming. .-~ · · : . Jo/hi and Several Liabiliiy. All obligations Of Grantor under this Mortgage shall be joint and Several, and all references t° Grantor shall mean each and every Grantor. This means that each Grantor signing below is responsible for all obligations in this Modgage. No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Mortgage Unless such waiver is given in writing and signed by Lender. No delay or omission on the pad of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Mortgage shall not prejudice or const u e a waiver of Lender's right olherwise 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 obligations as to any future transactions. Whenever the consent of Lender is required under this Modgage, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such Consent is re,uti'ed and in all Cases such consent may be granted or Withheld in the sole discretion Of Lender. ': ": Severability. If a coud of competent jurisdiction finds any provision of this M0dgage 1o be illegal, invalid, or unenlorceable as fo 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 il becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall be considered deleted from this Mortgage. Unless otherwise reqUii'ed by laW,' the iilegality, invalidity, Or ~nenfbrceabilit~; of any provision of this Modgage shall not affect lhe legality, validity or enforceability of any other provision of this Modgage. Merger. There shall be no merger ~f the inte~:est ~r estate Created by this Mortgage with*any olhb'r i'nlerest or ~Siate in the Pr~pe;ty at any time held by or for the benefil of Lender in any capacity, without the written consent of Lender. Loan No: 33014960 (Continued) 2 0 0 . Page 5 Successors and Assigns. Subject to any limitations stated in this Mortgage on transfer of Grantor's interest, this Mortgage shall be binding upon and inure to the benefit of lhe petites, their successors and assigns. If ownership of the Properly becomes vested in a person other than Grantor, Lender, without notice to Grantor, may deal with Grantor's successors with reference to this Modgage and the Indebtedness by way ol forbearance or extension without releasing Grantor from the obligations of this Modgage or liability under the Indebtedness. Time is of the Essence. Time is of the essence in the performance of th s Mortgage ~.~. ~ ~T'~! ~'.'~ '¥?i:!,'' i ~'~i' 'i' '~::'~ ' ~" .,~ ~';: ~ ,:.r:, . .';.. Waiver of Homestead Exemption. Grantor hereby releases and waives all rights and benefits Of tl~e homes{~ad 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 in this Modgage. 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 oontext 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 Denton L. Kanouff and Yvette M. Kanouff, and all other persons and entities signing the Note in whatever capacity. Default. The word "Default" means the Default set fodh 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 Superfund 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., lhe Resource Conservation and Recovery Acl, 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 fodh in this Mortgage in the events of default section of this Modgage. Grantor, The word "Grantor" means Denton L. Kanouff and Yvette M. Kanouff. Guaranty. The word "Guaranty" means the guaranty from guarantor, endorser, surety, or accommodation pady to Lender, including without limitation a guaranty of all or part of the Note. Hazardous Substances. The words "Hazardous Substances" mean materials thai, because of their 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. The words "Hazardous Substances" are used in their very broadest sense and include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances" also includes, 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 Properly, facilities, additions, replacements and other construction on the Real Properly. Indebtedness. The word "Indebtedness" means all principal, interest, and other amounts, costs and expenses payable under the Note or Related Documents, together with all renewals of, extensions of, modifications of, consolidations of and subslitutions 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 Modgage, together with interest on such amounts as provided in this Modgage. Lender. The word "Lender" means The Jackson State Bank & Trust, its successors and assigns. Morlgage. The word "Modgage" means this Mortgage between Grantor and Lender. Note. The word "Note" means the promissory note dated May 29, 2003, in the original principal amount of $207,000.00 from Grantor 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 adicles of personal properly now or hereafter owned by Grantor, and now or hereafter attached or affixed to the Real Properly; together with all accessions, parts, and additions 1o, all replacements of, and all substitutions for, any of such properly; 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 Properly. Real Property. The words "Real Property" mean the real property, interesls and rights, as fudher described in this Modgage. Related Documenls. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental agreements guaranties, security agreements, modgages, deeds of trust, security deeds, collateral modgages, and all other instruments, agreements and documenls, whether now or hereafter existing, executed in connection wilh the Indebtedness. Renls. 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:__ ' × Dento'n-~.. Kanouff, Ind~__tddally INDIVIDUAL ACKNOWLEDGMENT ~ County of ~ . State of ) SS ~ Unc01n ~ Wyom. ing COUNTY OF ~/~.J ) ~My Cornrnisslon Expires On this day before me, the undersigned Notary Public, personally appeared Denton L. Kanouff and Yvette M. Kanouff, to me known to be the individuals described in and who executed the Mortgage, and acknowledged that they signed the Mortgage as their tree and voluntary act and deed, for the uses.and purposes therein mentioned Given under my hand and official seal this ~"-~ day of ~ ,20 ~ Notary Public In and for the State of L)~ I~ ~)l,4,4.'l/A.J~ My commission expires (.. D l ~ EXHI'BIT "A"{O O DESCRIPTION FOR JOHN G. KILROY, JR. AND LINDA C. KILROY~ husband and wife from D~LILA JORGENSEN, a single person TRACT TO-Witx-- That part of the SENSE¼ of Section 29, T37N, RllSW, Lincoln county, Wyoming, being part of that tract of record in the office of the Clerk of Lincoln County in Book 136 of Photostatic Records on page 381 described-as follows: BEGINNING at a 5/8" rebar with aluminum Surv-Kap, S84"-31.2'W, ' 613.00 feet-from the northeast corner of the said SE¼SE¼, found as described in the Certified Land Corner Recordation Ce~tificate of record in the said Office; thence S40°-20-5'W, 3.80 feet to the point for 'the northwest corner of Lot 4 of the Greys River.Valley Subdivisiol] of record in the said Office as Plat No. 227; thence continuing S40"-20.5'W, 168.41 feet along the west line of said Lot 4 to the point for the southwest corner of said Lot 4; thence N49"-31.0'$q, 131.04' to a point on the west line of that tract of record in said Book 136 on page 381; thence N43"-44.8'E, 66.76 feet along the west line to a point identical with the northwest corner of said tract of record in Book 136 on page 381; thence S89~-17.3'E, 165.00 feet along the north line of said tract of record in Book 136 on page 381, to the PLACE OF BEGINNING; 201 INITIAL INI'I IAL Together with a right of ingress and egress over the east thirty {30) feet of that tract of ~ecord in the said Office in Book 136 of ~hotostatic Records on page 379 and said tract of record on page 381, appurtenant to the above described Tract "A", more particularly described as follows~ K strip of land thirty (30) feet in .width being part of'the ' SE%SE¼ of Section 29, T37N, RllSW, Lincoln County, Wyoming, with the southeasterly line described as follows~ BEGINNING at the southwest corner of Lot 5 of said Greys River. Valley Subdivision, identical with the southeast corner of said tract of record in BOOk 136 on page 3791 thence N40"-20.5'E, -180.04 feet along the west line of said Lot 5 to a point, identical with the southeast corner of that tract of.record in Book 136 on page 3811 thence continuing N40'-20.5'E, 81.21 feet to the nothwest corner of said Lot 5, identical with the southeast corner of afore- mentioned Tract "Am/ each point marked with a steel T-shaped stake 24" long with metal cap tnscrtb-d "PAUL N. SC~ERBBL ~LLS164 SDRVEY POINT"; the basz bearing for this survey is the East line of the said SE%SE% being N00e-02'WI' all ~n accordance .with the plat.prepared to be filed in the off,ce of the Clerk of Lincoln County titled ~DELILA JORGENSEN ~LA~OF TP3~'T$ WITHIN T~B SE%BE% SBCTION 29, T37~, ]LllSW LINCOLN CD~N~Y, WYOMI~,dated 17 Jnne 198~. 13 ~une 1986 kilxoy.des(86-A)