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HomeMy WebLinkAbout894218O3018593 RECORDATION REQUESTED BY: The Jackson Slale Bank & ~Trust West Office P.O. Box 1788 5O Buffalo Way Jackson, WY 83001 WHEN RECORDED MAIL TO: The Jackson Slate Bank & Trust West Office P.O. Box 1788 8O Buffalo Way Jackson, WY 83001 SEND TAX NOTICES TO: The Jackson State Bank & Trust West Office P.O. Box 1788 50 Buffalo Way Jackson, WY 83001 RECEIVED LINCOLN COUNTY CLERK 89N 2 1 8 03 OCT -8 22. SPACE ABOVE THI~ LINE IS FOR RECORDER'S USE ONLY MORTGAGE MAXIMUM LIEN. The lien of this Mortgage shall not exceed at any one time $36,000.00. THIS MORTGAGE dated October 2, 2003, is made and executed between Ken D. Harris, a single man, whose address is P.O. Box 7780, Jackson, WY 83002-7780 (referred to below as "Grantor") and The Jackson State Bank & Trust, whose address is P.O. Box 1788, 50 Buffalo Way, Jackson, WY 83001 (referred to below as "Lender"). GRANT OF MORTGAGE. For valuable consideration, Grantor morlgages and conveys 1o Lender all of Grantor's righl, UIle, and interest in and to the tollowing described real properly, together wilh all exisling or subsequently erected or affixed buildings, improvements and fixtures; all easements, rights of way, and appurtenances; all water, water rights, watercourses and ditch righ!s (including stock in utilities with ditch or irrigation rights); and all · other righls royallies, and profits relating lo the real property, including wilhoul limitation all minerals, oil, gas, geolhermal and similar matters, (the Real Property") located in Lincoln County County, State of Wyoming: Lot 28, Forest Meadow Subdivision~ according to the official plat thereof, recorded in the Office of the County Clerk, Lincoln County, Wyoming. The Real Property or its address is commonly known as 535 Forest Circle Drive, Alpine, WY 83128. The Real Property tax ~den[ification number is 37182830101300 REVOLVING LINE OF CREDIT. Specifically, In addition lo the amounls specified in lhe Indebtedness definition, and without Iimllallon, this Mortgage secures a revolving line of credit, which obligates Lender to make advances to Borrower so long as Borrower complies with all Ihe terms of Ihe Note. Granlor presently assigns Io Lender all of Grantor's right, title, and interesl in and 1o all present and future leases of the Property and all Ranis from lhe ...~ Property. In addition, Grantor gran~s to Lender a Uniform Commercial Code security interest in lhe Personal Property and Ranis. 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 "one action" or "anti-deficiency" law, or any other law which may prevent Lender from bringing any action against Grantor, including a claim for deficiency 1o Ihe extent Lender is ofherwise 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 df sale. GRANTOR'S REPRESENTATIONS AND WARRANTIES. Grantor warrants thai: (a) this Mortgage is executed at Borrower's request and not at lhe requesl of Lender; (b) Grantor has the full power, righl, and authority to enler into this Modgage and to hypothecate the' Property; (c) lhe provisions of this Modgage do not conflicl with, or result in a default under any agreement or other instrumenl binding upon Grantor and do not result in a violation of any law, regulation, court decree or order applicable 1o Grantor; (d) Grantor has eslablished adequate means of oblaining from Borrower on a continuing basis intormation aboul Borrower's financial condition; and (e) Lender has made no represenlation to Grantor about Borrower (including without limitation the creditworthiness of Borrower). PAYMENT AND PERFORMANCE. Except as olherwise provided in lhis Mortgage, Borrower shall pay to Lender all Indebtedness secured by this Mortgage as it becomes due, and Borrower and Granlor shall strictly perform all Borrower's and Grantor's obligations under Ihis Mortgage. POSSESSION AND MAINTENANCE OF THE PROPERTY. Borrower and Granlor agree that Borrower's and Grantor's possession and use of lhe Property shall be governed by Ihe 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 Property; and (3) collecl the Rents from the Property. Duty to Maintain. Grantor shall maintain Ihe Properly in tenantable condition and promptly perform all repairs, replacements, and maintenance necessary Io preserve ils value. Compliance With Envlronmenlal Laws. Grantor represents and warrants to Lender thai: (1) During the period of Granlor's ownership of the Property, there has been no use, generation, manufacture, storage, Irealment, disposal, release or threatened release of any Hazardous Subslance by any person on, under, about or from the Property; (2) Grantor has no knowledge of, or reason to believe that there has been, excepl 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, lrealment, disposal, release or threalened release of any Hazardous Substance on, under, aboul or from lhe Property by any prior owners or occupants of the Property, or (c) any' actual or threalened litigation or claims of any kind by any person relating to such matlers; and (3) Excepl as previously disclosed to and acknowledged by Lender in writing, (a) neither Grantor nor any tenant, conlractor, agent or olher aulhorized user of the Property shall use, generate, manufacture, slore, treal, dispose of or release any Hazardous Substance on, under, about or from the Property; and (b) any such activity shall be conducfed in compliance wilh all applicable federal, stale, and local laws, regulations and ordinances, including withoul limitation all Environmenlal Laws. Grantor authorizes Lender and its agents to enter upon the Properly lo make such inspections and tests, al Granlor's expense, as Lender may deem appropriale 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 nol be construed Io create any responsibility or liabili!y on the pad of Lender to Granlor or !o any olher person. The represenlations and warranties contained herein are based on Granlor's due diligence in investigating lhe Properly for Hazardous Substances. Granlor 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 Io 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 Ihe Modgage or as a consequence of any use, generalion, manufacture, storage, disposal, release or threatened release occurring prior Io Granlor's ownership or interest in lhe Properly, whether or nol the same was or should have been known to Grantor. The provisions ol this section of Ihe Mortgage, including the obligation Io indemnify, shall survive the payment of the Indebledness and lhe satisfaclion and reconveyance of the lien of this Modgage and shall not be affected by Lender's acquisition of any interest in the Prope~iy, whelher by foreclosure or olherwise. Nuisance, Wasle. Granlor 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 podion of lhe Properly. Without limiting the generality of lhe foregoing, Grantor will nol remove, or grant to any olher party the right to remove, any limber, minerals (including oil and gas), coal, clay, scoria, soil, gravel or rock products without Lender's prior written consent. Removal of Improvemenls. Grantor shall not demolish or remove any Improvemenls from the Real Property without Lender's prior writlen consent. As a condition Io the removal of any Improvements, Lender may require Granlor lo make arrangemenls satisfactory to Lender 1o replace .. MORTGAGE (Continued) [~ {~ 7' Page 2 such ImProvements with Improvemenls of al leasl equal value. Lender's Right !o Enler. Lender and Lender's agenls and representatives may enter upon fhe Real Propedy al all reasonable times lo attend Io Lender's interests and to inspect Ihe Real Properly for purposes of Gran{or's compliance with the lerms and conditions of this Modgage. Compliance wllh Governmental Requlremenls. Granlor shall promplly comply wilh all laws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable lo the use or occupancy of lhe Property, including without limitation, the Americans' With Disabilities Act. Granlor may conlesl 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 wriling prior lo doing so and so long as, in Lender's sole opinion, Lender's interests in the Propedy are not jeopardized. Lender may require Grantor lo post adequate securily or a surety bond, reasonably satisfactory to Lender, to protect Lender's inleresl. Duly to Prolect. Granlor agrees neither to abandon or leave unattended lhe Properly. Granlor shall do all other acts, in addition to those acts sel forth above in Ihis section, which from the character and use of Ihe Property are reasonably necessary 1o prolect and preserve the Properly. DUE ON SALE - CONSENT BY LENDER. Lender may, al Lender's option, declare immediately due and payable all sums secured by lhis Mortgage upon Ihe sale or Iransfer, without Lender's prior written consent, ot all or any part of lhe Real Property, or any interesl in the Real Property. A "sale or transfer" means Ihe conveyance of Real Property or any righl, title or interest in Ihe Real Property; whelher legal, beneficial o~* equitable; whelher voluntary or involuntary; whelher by outrighl sale, deed, installment sale contracl, land contract, conlracl for deed, leasehold inleresl with a term greater lhan three (3) years, lease-option conlract, or by sale, assignmenl, or transfer of any beneficial interesl in or lo any land trust holding lille to Ihe Real Property, or by any other method of conveyance of an inleresl in the Real Properly. If any Grantor is a corporation, partnership or limited liability company, transfer also includes any change in ownership of more than twenty-five percent (25%) of lhe voting slock, partnership interests or limited liability company inferesfs, as the case may be, of such Granlor. However, Ihis 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 Io delinquency) all laxes, payroll laxes, special laxes, assessments, water charges and sewer service charges levied againsi or on accoUnt of lhe Properly, and shall pay when due' all claims for work done on or for services rendered or malerial furnished to the Property. Grantor shall maintain Ihe Property Iree of any liens'having priority over or equal 1o the interest of Lender under Ihis Mortgage, except for the Exisling Indebtedness referred lo in Ihis Mortgage or those liens specifically agreed to in writing by Lender, and except for lhe lien of taxes and assessments not due as further specified in the Righl Io Conlest paragraph. Right to Coniest. Grantor may withhold payment of any tax, assessmenl, or claim in conneclion with a good faith dispute over the obligation lo pay, so long as Lender's interest in lhe Property is not jeopardized. If a lien arises or is filed as a resull of nonpayment, Grantor shall within fifteen (15) days after Ihe lien arises or, if a lien is filed, within fifteen (t5) days after Grantor has notice of lhe filing, secure the discharge of Ihe lien, or if requested by Lender, deposit wilh Lender cash or a sufficienl corporale surety bond or olher security satisfactory to Lender in an amount sufficient to discharge the lien plus any costs and reasonable attorneys' fees, or other charges that 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 judgmenl before enforcemeht 'against lhe Property. Grantor shall name Lender as an additional obligee under any surely bond furnished in the conlest Proceedings. Evidence of Paymenl; Granlor shall upon demand furnish lo Lender salisfaclory evidence of payment of Ihe laxesor assessments and shall authorize lhe appropriate governmental official to deliver 1o Lender at any lime a writlen slalemenl of the taxes and assessmenls against Ihe Property. Nollce of Conslructlon. Grantor shall notify Lender at leasl fifteen (15) days before any work is commenced, any services are furnished, or any malerials are supplied to lhe Properly, if any mechanic's lien, materialmen's lien, or olher lien could be asserted on accounl of the work, services, or materials. Grantor will upon request of Lender furnish 1o Lender advance assurances satisfaclory lo Lender thai Grantor can and will pay Ihe cosl of such improvements. PROPERTY DAMAGE INSURANCE. The following provisions relating Io insuring Ihe Property are a peri of this Mortgage: Maintenance of Insurance. ' Granlor shall procure and maintain policies of fire insurance wilh slandard extended coverage endorsements on a replacement basis for Ihe full insurable value covering all Improvements on lhe Real Property in an amount sufficienl lo avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of Lender. Grantor shall also procure and maintain comprehensive general liabilily insurance in such coverage amounts as Lender may requesl wilh Lender being named as addilional insureds in such liability insurance policies. Addilionally, Grantor shall maintain such other insurance, including bul nol limited Io hazard, business inlerruption and boiler insurance as Lender may require. Policies shall be writlen by such insurance companies and in such form as may be reasonably acceptable to Lender. Grantor shall deliver to Lender certificales of coverage from each insurer conlaining a stipulation that coverage will not be cancelled or diminished without a minimum of ten (10) days' prior written notice 1o Lender and nol conlaining any disclaimer of lhe insurer's liability for failure to give such notice. Each insurance policy also shall include an endorsemenl providing Ihal coverage in favor of Lender will nol be impaired in any way by any act, omission or default of Grantor orany other person. Should lhe Real Property be located in an area designaled by the Direclor of the Federal Emergency Management Agency as a special flood hazard area, Grantor agrees 1o obtain and maintain Federal Flood Insurance, if available, within 45 days after notice is given by Lender that the PrOperly is located in a special flood hazard area, for the full unpaid principal balance of lhe loan and any prior liens on the property securing the loan, up to the maximum policy limits' set under the National Flood Insurance Program, or as olherwise required by Lender and to maintain such insurance for lhe lerm of Ihe loan. Application of Proceeds. Granlor shall promptly notify Lender of any loss or damage Io Ihe Property. Lender may make proof of loss if Granlor fails to do so within fifteen (15) days of lhe ces~Jally. Whether Or not Lender's security is impaired, Lender maY, al Lender's election, receive and retain lhe proceeds of any insurance and apply the proceeds to lhe reduction of Ihe Indebledness, paymenl of any lien affecting the property, or the reStoration and repair of the Property. If Lender elects 1o apply the proceeds 1o resforalion and repair, Granlor shall repair or replace the damaged or destroyed Improvemenls in a manner satisfactory fo Lender. Lender shall, upon satisfactory proof of such expenditure, pay or reimburse Granlor from the proceeds for the reasonable cost of repair or resloralion if Granlor is not in defaull under this Mortgage. Any proceeds which have nol been disbursed within 180 days after their receipt and which Lender has not commitled 1o Ihe repair or resloration of the Propedy shall be used first Io pay any amount owing Io Lender under Ihis Mortgage, lhen Io pay accrued inlerest, and the remainder, if any, shall be applied to the principal balance of the Indebtedness. If Lender holds any proceeds affer Paymenl in full of the Indebledness, such proceeds shall be paid 1o Grantor as Grantor's interesls may appear. Compliance with Existing Indebledness. During the period in which any Existing Indebtedness described below is in effecl, compliance with Ihe insurance provisions contained in Ihe instrument evidencing such Existing Indebtedness shall conslitule compliance wilh the insurance provisions under this Mortgage, to the extent compliance with lhe lerms of this Mortgage would conslitute a duplicalion of insurance requirement. If any proceeds from lhe insurance become payable on loss, the provisions in this Mortgage for division of proceeds shall apply only to lhal portion of Ihe proceeds not payable Io the holder of the Exisling Indebtedness. LENDER'S EXPENDITURES. If any action or proceeding.is commenced that would malerially affecl Lender's inleresl in the Property or if Grantor fails to comply wilh any provision of Ihis Mortgage or any Related Documenfs, including bul nol limiled Io Granlor's failure 1o comply with any obligation to maintain Existing Indebtedness in good standing as required below, or 1o discharge or pay when due any amounls Granlor is required lo discharge or pay under this Mortgage or any Related Documents, Lender on Granlor's behalf may (bul shall nol be obligated to) lake any action that Lender deems appropriate, including bul not limiled to discharging or paying all laxes, liens, security interesls, encumbrances and other claims, a! any time levied or placed on the Property and paying all costs for insuring, maintaining and preserving the Property. All such expenditures incurred or paid by Lender for such purposes will lhen bear interest at the rate charged under the Nole from lhe dale incurred or paid by Lender to the date of repayment by Granlor. All such expenses will become a part of the Indebledness and, at Lender's oplion, will (A) be payable on demand; (B) be added to the balance of the Nole and be apportioned among and be payable with any inslallmenl paymenls to become due during either (1) the term of any applicable insurance policy; or (2) the remaining lerm of the Note; or (C) be Ireated as a balloon payment which will be due and payable al lhe Nole's malurity. The Mortgage also will secure paymenl of these amounls. Such right shall be in addition Io all olher righls and remedies 1o which Lender may be entitled upon Defaull. WARRANTY; DEFENSE OF TITLE. The following provisions relating Io ownership of Ihe Properly are a part of this Mortgage: Tlile. Grantor warrants thah (a) Granlor holds good and marketable lille of record 1o lhe Properly in fee simple, free and clear of all liens and encumbrances olher than Ihose sel forth in lhe Real Property description or in lhe Existing Indebledness section below or in any lille insurance policy, title report, or final title opinion issued in favor of, and accepted by, Lender in connection with this Mortgage, and (b) Grantor has the full right, power, and authority fo execute and deliver this Morlgage to Lender. ' ~ Defense of Title. Subject to lhe exception in the paragraph above, Granlor warranls end will forever defend the title to the Properly:against the lawful claims of all persons; In the event any action or proceed ng s commenced that queslions Grantor's title or the interest of Lender un'der lhis Mortgage, Grantor shall defend the aclion al Granlor's expense. Granlor may be the nominal party in such proceeding, but Lender shall be MORTGAGE (Continued) [~ ~ 8 Page 3 entilled to participate in the proceeding and to be represenled in Ihe proceeding by counsel of Lender's own choice, and Grantor will deliver, or cause to be delivered, Io Lender such instruments as Lender may request from time lo time to permit such participalion. Compliance With Laws. Grantor warrants that the Property and Grantor's use of lhe Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities. Survival of Represenlallons 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's~aji remain in full force and effect until such time as Borrower's Indebledness shall be paid in full. EXISTING INDEBTEDNESS. The following provisions concerning Existing Indebtedness are a part of lhis Mortgage: Existing Lien. The lien of this Mortgage securing the Indebtedness may be secondary and inferior to an exisling lien. Grantor expressly covenanls and agrees to pay, or see lo Ihe paymenl of, the Exisling Indebledness and to prevent any defaull on such Indebtedness, any default under the instruments evidencing such indebtedness, or any defaull under any security documenls for such indebledness. No Modification. Grantor shall not enter into any agreemenl with lhe holder of any mortgage, deed of trust, or olher 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. Granlor shall neither request nor accept any future advances under any such security agreement without lhe prior wrilten consenl of Lender. CONDEMNATION. The following provisions relating to condemnation proceedings are a part of this Mortgage: Proceedings. If any proceeding in condemnation is filed, Granlor shall promptly notify Lender in writing, and Granlor shall promPlly take such steps as may be necessary Io defend lhe action and obtain the award. Granlor may be the nominal party in such proceeding, but Lender shall be enlilled to participate in the proceeding and to be represented in the proceeding by counsel of its own choice, and Grantor will deliver or cause lo be delivered 1o Lender such instrumenls and documentation as may be requested by Lender from time Io time lo 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, Lender may at its election require that all or any portion of the net proceeds of the award be applied to the Indebtedness or lhe repair or restoration of the Property. The nel proceeds of the award shall mean the award after payment ol all reasonable cosls, expenses, and attorneys' fees incurred by Lender in connection with the condemnation. IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating to governmental taxes, fees and charges are a part of lhis Mortgage: Current Taxes, Fees and Charges. Upon requesl 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 olher charges for recording or registering lhis Mortgage. Taxes. The fOllowing shall conslilute taxes to which this section applies: (1) a specific tax upon Ihis type of Mortgage or upon all or any part of lhe Indebtedness secured by this Mortgage; (2) a specific tax on Borrower which Borrower is aulhorized or required Io deduct from payments on Ihe Indebtedness secured by this type of Mortgage; (3) a tax on Ihis lype of Mortgage chargeable against the Lender or the holder of Ihe Note; and (4) a specific lax on all or any portion of the Indebtedness or on payments o! principaLand interest made by Borrower. Subsequent Taxes. If any tax to which this section applies is enacled subsequent Io the date of this Mortgage, lhis event shall have Ihe same eftecl as an Event of Default, and Lender may exercise any or all of its available remedies for an Evenl of Defaull as provided below unless Grantor either (1) pays Ihe tax before it becomes delinquent, or (2) cor~ies~s the lax as provided above in Ihe Taxes and Liens section and deposits with Lender cash or a sufficient corporate surety bond or olher security salisfaclory to Lender. SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating lo this Mortgage as a security agreemenl are a part of this Mortgage: Security Agreement. This inslrumenl shall constitute a Security Agreement 1o Ihe exlenl any of the Property constitules fixtures, and Lender shall have all of the righls 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 whalever olher action is requested by Lender to perfecl and continue Lender's security inlerast 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 aulhorization from Grantor, file executed counlerparts, 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 lhe Personal Property from lhe Property. Upon default, Grantor shall assemble any Personal Property nol affixed to Ihe Property in a manner and at a place reasonably convenient lo Granlor and Lender and make it available to Lender within Ihree (3) days after receipt of wrilten demand from Lender lo the exlent permifted by applicable law. Addresses. The mailing addresses of Grantor (deblor) and Lender (secured party) from which information concerning the security interest granted by this Mortgage may be oblained (each as required by the Uniform Commercial Code) are as slaled on the first page of this Mortgage. FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating to further assurances and allorney-in-facl are a part of this Mortgage: Furlher AssUrances. At any time, and from time to time, upon requesl of Lender, Grantor will make, exeCute and deliver, or will cause to be made, executed or delivered; to Lender or lo Lender's designee, and when requesled 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 slatemenls, conlinualion statements, instruments of further assurance, certificates, and other documents as may, in the sole opinion o! Lender, be necessary or desirable in order to effectuate, complete, perfect, conlinue, or preserve (1) Borrower's and Granlor's obligations under the Note, Ihis Mortgage, and the Related Documenls, and (2) lhe liens and securily inleresls created by this Mortgage on the Property, whether now owned or hereafter acquired by Grantor. Unless prohibited by law or Lender agrees to Ihe conlrary in writing, Grantor shall reimburse Lender for all costs and expenses incurred in connection wilh the mailers referred to in lhis paragraph. Attorney-in-Fact. If Grantor fails Io do any of the Ihings referred to in the preceding paragraph, Lender may do so for and in the name of Grantor and al Grantor's expense. For such purposes, Grantor hereby irrevocably appoinls Lender as Grantor's allorney-in-fact for the purpose of making, execuling, delivering, filing, recording, and doing all olher lhings as may be necessary or desirable, in Lender's sole opinion, to accomplish the matters referred 1o in the preceding paragraph. FULL PERFORMANCE. If Borrower pays all ihe Indebtedness when due, and otherwise performs all the obligations imposed upon Grantor under lhis Morlgage, Lender shall execute and deliver to Grantor a suilable salisfaclion of Ihis Mortgage and suitable slatements of termination of any financing stalemenl on file evidencing Lender's security interest in the Rents and Ihe Personal Properly. Grantor will pay, if permitted by applicable law, any reasonable termination fee as delermined by Lender from time to lime. EVENTS OF DEFAULT. Each of lhe following, al Lender's option, shall constilule an Event of Default under Ihis Mortgage: Payment Default. Borrower fails to make any payment when due under the Indebtedness. Default on Other Payments. Failure of Granlor within lhe time required bY Ihis Mortgage lo make any payment for faxes or insurance, or any olher payment necessary 1o prevent filing of or to effect discharge of any lien. Other Defaults. Borrower or- Grantor fails to comply with or'lo Perform any.olher lerm, obligation, cover{ant or condition contained in this Morlgage or in any of the Related Documents or Io comply with or Io perform any lerm, obligation, covenant or condition contained In any other agreement between Lender and Borrower or Grantor. Defaull in Favor of Third Parlles. Should Borrower or any Grantor defaull under any loan, extension of credil, security agreement, purchase or sales agreement, or any olher agreement, in favor of any other creditor or person Ihat 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 Io perform their respective obligations under this Mortgage or any related documenl. ~ ....... False Slatements. Any warranty, representation Or statement made or furnished 1o Lender by Borrower or Granlor or on Borrower's or Grantor's behalf under this Mortgage or ~he Related Documenls is false or misleading in any material respect, eilher now or at the time mede or furnished or beComes false or misleading at any time thereafter. Defective Coliaterallzatlon. This Mortgage or any of Ihe Relaied Documenls ceases 1o be in full force and effect (including failure of any collateral document Io create a valid and perfected security inleresl or lien) at any time and for any reason. ..., MORTGAGE (Continued) Page 4 Death or Insolvency. The dissolution or termination of Borrower's or Granlor's existence as.a going business, the insolvency ot Borrower or Grantor, the appoinlment of a receiver for any part of Borrower's or Grantor's property, any assignmenl 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 Borrower or Grantor. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings; whelher by judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower or Granlor 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 lhe basis of the creditor or forfeiture proceeding'and if Borrower or Grantor gives Lender written notice of the credilor or forfeiture proceeding and deposits with Lender monies or a surely 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 dispule. Existing Indebtedness. The payment of any installment of principal or any inleresl or~ the Existing Indebtedness is not made wilhin Ihe time required by Ihe promissory note evidencing such indebtedness, or a default occurs under the inslrument securing such indebtedness and is nol cured during any applicable grace period in such instrumenl, or any suit or other aclion is commenced to foreclose any existing lien on the Properly. Breach of Olher Agreemenl. Any breach by Borrower or Grantor under Ihe terms of any other agreement between Borrower or Grantor and Lender that is not remedied within any grace period provided therein, including wilhout limitation any agreement concerning any indebtedness or other obligation of Borrower 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 ot the Indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes lhe validity of, or liability under, any Guaranty of the Indebledness. In the event of a death, Lender, at its option, may, but shall not be required to, permit the Guaranlor's estate lo 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 lndebledness is impaired. Right IO Cure. If such a failure is curable and if Borrower or Grantor has not been given a notice of a breach of lhe same provision of this Mortgage within the preceding twelve (12) months, it may be cured (and no Event of Defaull will have occurred) if Borrower or Grantor, after Lender sends written notice demanding cure of such failure: la) cures Ihe failure within fifteen (15) days; or lb) if the cure requires more than fifteen (15) days; immediately initiates steps sufficient to cure the failure and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Evenl 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 rights or remedies provided by law: Accelerale Indebtedness. Lender shall have the right at its oplion wilhout notice to Grantor to declare the entire Indebtedness immediately due and payable, including any prepayment penalty which Grantor would be required to pay. UCC Remedies. With respect to all or any part ot the Personal Property, Lender shall have all the righls and remedies ota secured Party under the Uniform Commercial Code. Collecl Renls. Lender shall have the right, wilhout notice to Borrower or Grantor, Io take possession of Ihe Properly, including during Ihe pendeocy of foreclosure, whether judicial or non-judicial, and collect lhe Renls, including amounts past due and unpaid, and apply lhe net proceeds, over and above Lender's costs, against Ihe Indebtedness. In furtherance of Ihis 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 collecled by Lender, then Grantor irrevocably designates Lender as Grantor's attorney-in-fact to endorse instruments received in payment thereof in the name of'Grantor and to negoliale Ihe same and collect the proceeds. Payments by tenanls or Other users to Lender in response to Lender's demand shall salisfy the obligations for which Ihe paymenls are made, whether or not any proper grounds for the demand existed. Lender may exercise its rights under this subparagraph either in person, by agenl, or through a receiver.. Appoinl Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any part of the Property, wilh the power to protect and preserve the Property~ to operate the Property preceding foreclosure or sale, and lo collect the Rents from the Property and apply Ihe proceeds, over and above Ihe cost of the receivership, against the Indebledness. The receiver may serve withoul bond if permitted by law. Lender's righl to Ihe appointment of a receiver shall exist whelher or not lhe apparent value of the Property exceeds Ihe Indebtedness by a subslantial amount. Employmenl by Lender shall not disqualify a person Irom serving as a receiver. Judicial Foreclosure. Lender may obtain a judicial decree foreclosing Grantor's interest in all or any part 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 "advertisement and sale" foreclosure as provided by statute. Deficiency Judgment. If permitted by applicable law, Lender may obtain a. judgmenl 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 Ihe Property is sold as provided above or Lender otherwise becomes entitled to possession of Ihe Property upon default of Grantor, Grantor shall become a tenant al sufferance of Lender or the purchaser of Ihe Property and shall, at Lender's option, either (1) pay a reasonable rental for the use of the Property, or (2) vacate the Property immediately upon the demand of Lender. Other Remedies. Lender shall have all other rights and remedies provided in this Mortgage or the Note or available at law or in equily. Sale of the Property. To the extent permitted by applicable law, Borrower and Grantor hereby waives any'and ail right to have the prOperty marshalled. In exercising ils rights and remedies, Lender shall be free Io sell all or any part of lhe Property 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 the Property. Nollce of Sale. Lender shall give Grantor reasonable notice of the time and place of any public sale of the Personal Property or of the time after which any privale sale or other intended disposition of the Personal Property is to be made. Reasonable notice shall mean nolice given at least len (10) days before the time of the sale or disposition. Any sale of the Personal Property may be made in conjunction With any sale of the Real Property. Eleclion of Remedies. Election by Lender Io pursue any remedy shall not exclude pursuit of any other remedy, and an election Io make expenditures or to take aclion to perform an obligation of Grantor under this Mortgage, after Grantor's failure !o pedorm, shall not affect Lender's right to declare a default and exercise its remedies. Nothing under this Mortgage or otherwise shall be construed so as Io limit or reslricl the rights and remedies available to Lender following an Event of Default, or in any way to limit or reslrict the rights and ability of Lender to proceed direclly against Grantor and/or Borrower and/or against any other co-maker, guarantor, surety or endorser and/or to proceed against any olher collateral directly or indirectly securing the Indebtedness. AIIorneys' Fees; Expenses. If Lender institutes any suit or action to enforce any of the terms of this Mortgage, Lender shall be entilled to recover such sum as lhe court may adjudge reasonable as attorneys' fees at trial and upon any appeal. Whelher or not any court aclion is involved, and to lhe eXtenl not prohibiled by law, all reasonable expenses Lender incurs that in Lender's opinion are necessary al any time for Ihe proteclion of its interest or the enforcement of its rights shall become a part of the Indebtedness payable on demand and shall bear interest at lhe Note rale from the date oflhe expenditure until repaid. Expenses covered by this paragraph include, withoul limitation, however subject to any limits under applicable law, Lender's reasonable allorneys' fees and Lender's legal expenses whether or not Ihere is a lawsuit, including reasonable attorneys' fees and expenses for bankruplcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anlicipated post-judgment colleclion services, the cost of searching records, obtaining lille reports (including foreclosure reports), surveyors' reports, and appraisal fees and lille insurance, to the extent permitted by applicable law. Grantor also will pay any court costs, in addition to all other sums provided by. law. NOTICES. Any notice required 1o be given under lhis Mortgage. 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 deposiled wilh a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Mortgage. All copies of notices of foreclosure from the holder of any lien which has priority over this Mortgage shall be sent Io Lender's address, as shown near lhe beginning of this Mortgage. Any party may change its address for notices under this Mortgage by giving formal written notice Io lhe olher parties, specifying Ihat Ihe purpose of the notice is to change the party's address. For notice purposes, Grantor agrees to keep Lender informed al all times ot Granlor's current address. Unless otherwise provided or required by law, if lhere is more than one Grantor, any notice given by Lender to any Grantor is deemed Io be notice given to all Grantors. MORTGAGE (Continued) {~ 7 0 Page s MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Mortgage: Amendments. This Mortgage, together with any Related Documenls, conslitutes the entire understanding and agreement of the parties as to the matters set forth in this Mortgage. NO alteration of or amendment to Ihis Morlgage shall be effective unless given in writing and signed by the party or parties soughl Io be charged or bound by the alteration or amendment. Annual Reporls. If lhe Property is used for purposes other Ihan Granlor's residence, Grantor shall furnish to Lender, upon request, a certified slalement of net operaling income received from the Property during Granlor's previous fiscal year in such form and delail as Lender shall require. "Nel operaling income" shall mean.all cash receipts from the Property less all cash expenditures made in connection with Ihe operation of the Property. Caption Headings. Caption headings in this Mortgage are for convenience purposes only and are not Io be used lo 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 lhe Slate of Wyoming; This Mortgage has been accepted by Lender In the Slate of Wyoming. ChoiCe of Venue. If there is a lawsuil, Grantor agrees upon Lender's request Io submit to Ihe jurisdiction of Ihe courts of Teton County, Stale 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 all references lo Borrower shall mean each and every Borrower. This means that each Borrower and Granlor signing below is responsible for all obligations in IhiS Mortgage. No Waiver by Lender. Lender shall nol be deemed to have waived any rights under lhis 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 olher right. A waiver by Lender of a provision of this Mortgage shall not prejudice or conslilute a waiver of Lender's right otherwise !o demand slrict compliance with lhat provision or any other provision of this Mortgage. No prior waiver by Lender, nor any course of dealing belween Lender and Granlor, shall constilute a waiver of any of Lender's rights or of any of Grantor's obligations as to any future transactions. Whenever Ihe consenl of Lender is required under this Mortgage, the granting of such consent by Lender in any inslance shall not conslitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in Ihe sole discrelion of Lender. Severablllly. If a court of compelent jurisdiction finds any provision of Ihis Mortgage lo be illegal, invalid, or unenforceable as to any circumstance, lhal finding shall not make the offending provision illegal, invalid, or unenforceable as to any olher 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, il shall be considered deleted from this Mortgage. Unless olherwise required by law, Ihe illegality, invalidity, or unenforceabilily of any provision of this Mortgage shall not affect the legality, validity or enforceability of any olher provision of this Mortgage. Merger. There shall be no merger of tl:~e interest or estale created bY this Mortgage wilh any olher inleresl or eslale in the Property at any time held by or for Ihe benefit of Lender in any capacity, wilhoul Ihe written consent of Lender. Successors and Assigns. Subject to any limitations stated in this Mortgage on transfer of Grantor's inleres{, Ihis Mortgage shall be binding upon and inure to the benefit of the parties, Iheir successors and assigns. It ownership of lhe Property becomes vested in a person other than Granlor, Lender, without notice to Grantor, may deal with Grantor's successors with reference to this Mortgage and lhe Indebtedness by way of forbearance or extension without releasing Grantor from lhe obligalions of lhis Mortgage or liability under the Indebtedness. Time Is of the Essence. Time is of the essence in the performance of this Mortgage. Waiver of Homeslead Exemption. Grantor hereby releases and waives all rights and benefits of the homestead exemption laws of lhe Slale of Wyoming as to all Indebledness secured by this Mortgage. DEFINITIONS. The following capitalized words and terms shall have ~he following meanings when used in this Mortgage. Unless specifically stated to the conlrary, all references to dollar amounts shall mean amounts in lawful money of lhe United States of America. Words and terms used in the singular shall include lhe plural, and the plural shall include Ihe singular, as the context may require. Words and terms nol otherwise defined in this Mortgage shall have the meanings attribuled to such terms in lhe Uniform Commercial Code: Borrower. The word "Borrower" means Jackson Mattress Shop, Inc., a Wyoming corporation and includes all co-signers and co-makers signing Ihe Note. Defaull. 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, regulalions and ordinances relaling to the protection of human health or lhe environment, including withoul limitation the Comprehensive Environmental Response, Compensation, and Liability Actor 1980, as amended, 42 U.S.C. Section 9601, el seq. ("CERCLA"), the Superfund Amendments and Reauthorization Acl of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, el seq., the Resource Conservation and Recovery Act, 42 U.S.C. Seclion 6901, et seq., or other applicable state or federal laws, rules, or regulations adopted pursuanl thereto. Event of Default. The words "Event of Default" mean any of Ihe evenls of default set forth in this Modgage in the events of default section of Ihis Mortgage. Existing Indebtedness. The words "Existing Indebtedness" mean the indebtedness described in the Existing Liens provision of this MOrtgage. Grantor. The word '!Grantor" means Ken D. Harris. Guaranlor. The word "Guarantor" means any guarantor, surety, or accommodalion party of any or all of the Indebledness. Guaranty. The word "Guaranty" means Ihe guaranty from Guarantor to Lender, including wilhout limitation a guaranty of all or part of the Note. Hazardous Subslances. The words "Hazardous Substances" mean malerials thai, because of Iheir quanlity, concentralion or physical, chemical or infectious characteristics, may cause or pose a present or polenlial hazard Io human health or the environment when improperly u.sed, trealed, stored, disposed of, generaled, manufaclured, transported or otherwise handled. The words "Hazardous Substances" are used in their very broadesl sense and include wilhout limitalion any and all hazardous or loxic substances, materials or wasle as defined by or listed under the Environmental Laws. The term "Hazardous Subslances" also includes, wilhout limilalion, petroleum and pelroleum by-products or any Iraclion thereof and asbestos. · Improvements, The word "Improvements" means all existing and future improvemenls, buildings, struclures~imobile homes affixed on the Real Property, facililies, additions, replacements and other construction on the Real Property. .'' ';/' Indebledness. The word "Indebtedness" means all principal, interest, and other amounts, costs and' expenses payable under the Note or Relaled 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 Granlor'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 & Trus~, its successors and assigns. Mortgage, The word "Mortgage" means lhis Mortgage between Grantor and Lender. Note. The word "Note" means the .promissory nole dated October 2, 2003, inthe original·principal amount of $36,000.00 from Borrower lo Lender, logelher with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the promissory note or agreement. NOTICE TO GRANTOR: THE NOTE CONTAINS A VARIABLE· INTEREST RATE. Personal Property. The words "Personal Properly" 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 all accessions, paris, and addilions lo, all replacements of, and all substitutions for, any of such property; and logether wilh all proceeds (including without limitation all insurance proceeds and refunds of premiums) from any sale or other disposition of Ihe Properly. Property. The word "Property" means collectively the Real Property and Ihe Personal Property. Real Property. The words "Real Property" mean the,real properly, inlerests and rights, as further described in this Mortgage. Relaled Documents. The words "Related Documents" mean all promissory holes, credit agreements, loan agreements, environmental agreements, guaranlies, secud!Y agreemenls, mortgages, deeds of lrust, security deeds, collaleral mortgages, and all other instrumenls, MORTGAGE (Continued) ~ '7 ]. Page 6 agreements and documenls, whether now or hereafter existing, executed in connection with Ihe Indebtedness. Rents. The word "Rents" means all presenl and future rents, revenues, income, issues, royalties, profils, and other benefits derived from the Property. GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND GRANTOR AGREES TO ITS TERMS. K~n D. Harris STATE OF COUNTY OF INDIVIDUAL ACKNOWLEDGMENT ) [ County of ' ["~ State of {{ )SS I Lincoln ~' VVyomlng II On lhis day before me, the undersigned Notary Public, personally appeared Ken D. Harris, Io me known'to be the individual described in and who executed the Modgage, and acknowledged lhat he or she signed the Modgage as his or her free and voluntary act and deed, for the uses and purposes therein mentioned. Given under my hand and official seal this .~ ^ ,.,~ ~ day of ~"] ¢.-r-o-,~,.. -~ ~ ,20 O ~ By /~t_~)~.~._.----- Residingal ~-'~C.r~,~-,..J ,5~,,.~' d'~?~,J~_ ~T~.~,_.,~'~ Notary Public In and for lhe State of ~-J'~ ~'~ ,T'~r b- My commission expires I [ - ~_ ') - o '1/