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HomeMy WebLinkAbout895453After Recordation Return to: KeyBank National Association P.O. Box 16430 Boise, ID 83715 (208) 525~6200 895 h 53 RECEIVED LINCOLN COUNTY CLERK , HOME EQUITY LINE MORTGAGE No w m O WAY 13S / 20 KASEV COU T , JACKSON, WY 83001 [ ALPINE, pry 83128 . ..............i....'....J ~: : l In consideration of the loan or other credit accommodation hereinafter specified and any future advances or future Obligations, as defined herein, which may hereafter be advanced or incurred and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Mortgagor hereby warrants and mortgages to KeyBank National Association 4910 Tiedeman Road, Suite B, Brooklyn, Ohio 44144 ('Lender'), its successors and assigns, with power of sale and right of entry and possession all of Mortgager's present and future estate, right, title and interest in' and to the real property described in Schedule A, which is attached to this Mortgage and incorporated herein by this reference, together ;with all present and future improvements and fixtures; all tangible personal properly, including, without limitation, all machinery, equipment, building. materials, and goods of every nature (excluding household goods) now or hereafter located on or used in connection with the real property, whether or,, . .'..: not affixed to the land; all privileges, hereditaments, and appurtenances; all leases, licenses and other agreements; all rents issues and profits .all :. ::; water, well, ditch, reservoir and mineral rights and stocks pertaining to the real property (cumulatively "Property"); until payment in full of.ail Obligations secured hereby. .- . .:-' ,~ ":.. ?' Moreover, in fudher consideration, Mortgagor does, for Mortgagor and Mortgagor's heirs, representatives, successom, and assigns, he~'eb~;i 'if;i expressly warrant, covenant, and agree with Lender, its successors and assigns as follows: i. OBLIGATIONS. This Mortgage shall secure the payment and performance of ali present and future indebtedness, liabilities, obli§ations &nd-. covenants of Borrower or Mortgagor (cumulatively "Obligations") to Lender pursuant to: ' ' " (a) this Mortgage and the following promissory notes and other agreements: ! .... VARIABLE $25, 000.00 11/12/03 11/12/33 032531150240C 125650013817 . (b) all other present or future written agreements with Lender that refer specifically to this Mortgage (whether executed for the same or dlffer~ni · i,~i:.~il :i As LPWY506 © Form;,. i .: ::;ogles, Inc. (11/3/96) (800) 937-37996 purposes than the foregoing); (c) any guaranty of obligations of other parties given to Lender now or hereafter executed that refers to this Mortgage; :: i (d) future advances, whether obligatory or optional, to the same extent as if made contemporaneously with the execution of this Mortgage, made! or extended to or on behalf of Mortgagor or Borrower. Mortgagor agrees that if one of the Obligations is a line of credit, the lien of this MOrtgage shall continue until payment in full of all debt due under the line notwithstanding the fact that from time to time (but before termination no balance may be outstanding, At no time shall the lien of this Mortgage, not including sums advanced to protect the security of this' Mort~la~je; exceedS 2~.o~3o_oo 'and . :,; ' (e) all amendments, extensions, renewals, modifications, replacements or substitutions to any of the foregoing. ' .'.. ~¥~.t';'~ used in this Paragraph 1, the terms Mortgagor and Borrower shall include and also mean any Mortgagor or Borrower if more than one. ' % REPRESENTATIONS, WARRANTIESAND COVENANTS. Mortgagor represents, warrants and covenants to Lender that: . . ..i.~, ~'~,.~ .~ (a) Mortgagor has fee simple marketable title to the Property and shall maintain the Property free of all liens, security interests encumbr~dce~:~. and claims except for this Mortgage and those described in Schedule B which is attached to this Mortgage and incorporated herein by which Mortgagor agrees to pay and perform in a timely manner; . '. ,.':~,,:..., ¢~r, (b) Mortgagor is in compliance in all respects with all applicable federal, state and local laws and regblations, including, without limitation relating to "Hazardous Materials" as defined herein, and other environmental matters (the "Environmental Laws"), and neither the government nor the state where the Property is located nor any other governmental or quasi governmental entity has filed a lien on the Property,. nor are there any governmental, judicial or administrative actions with respect to environmental matters pending, or to the best of the Mortgagor.'s~ knowledge, threatened, which involve the Property. Neither Mortgagor nor, to the best of Mortgager's knowledge, any other party has used, generated, released, discharged, stored, or disposed of any Hazardous Materials as defined herein, in connection with the Property or transported any Hazardous Materials to or from the Properly. Mortgagor shall not commit or permit such actions to be taken in the future. The term "Hazardous Materials" shall mean any substance, material, or waste which is or becomes regulated by any governmental authority including, but not limited to: (i) petroleum; (ii) friable or nonfriable asbestos; (iii) polychlorinated biphenyls; (iv) those substances, materials or wastes: designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act or listed pursuant to Section 307 of the Clean Water Act or' any amendments or replacements to these statutes; (v) those substances, materials or wastes defined as a "hazardous waste" pursuant to Section · 1004 of the Resource Conservation and Recovery Act or any amendments or replacements to that statute; and (vi) those substances, materials or wastes defined as a "'hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response Compensation and Liability,,;!.:':',Z Act or any amendments or replacements' to that statute or any other similar state or federal statute, rule, regulation or ordinance now or hereafter?i?:~ n effect Mortgagor she not ease or perm t the sub ease of the Properly to a tenant or subtenant whose operations may result in contaminatir~n ii* :. of the Property with Hazardous Materials or toxic substances; .' , .-; (c) All applicable laws and regulations including, without limitation, the Americans with Disabilities Act, 42 U.S.C. Section 12101 et seq; regulations promulgated thereunder) and all zoning and building laws and regulations relating to the Property by virtue of any f~8~,//I, municipal authority with jurisdiction over the Property, presently are and shall be observed and complied with in all material respects, and rights, licenses, permits, and certificates of occupancy (including but not limited to zoning variances, sp.ecial exceptions for nonconforming uses, and final inspection approvals), whether temporary or permanent, which are material to the use and occupancy of the Property, present'lY are~and ' shall be obtained, preserved and, where necessary, renewed; "': ' / ¢~": -- (d) Mortgagor has the right and is duly authorized to execute and perform its Obligations under this Mortgage and these actions do hot and'S~ill not conflict with the provisions of any statute, regulation, ordinance, rule of law, contract or other agreement which may be binding on Mortg~g0r at any time; (e) No action or p_roceeding is or shall be pending or threatened which might materially affect the Property; and ,..~ :,:.~i';.ii2:¢¢~i:;' (f) Mortgagor has not voated and sha not voate any statute reguaton ordnance rue of aw contract or other a reement whch m ht ~, ij!;,.ma e_ ~ally affect the Property 0nclud~ng but not ,mted to those govermng Hazardous Materas) or Lender's r ghts or nterest in the Property ~i:;'~i~i!!!~.~:'i ~i~:jJ~llOR, MORTGAGES. Mortgagor represents and warrants that there are no pr or mortgages alfecting any part of the Property except as set forth : O~ Sch~du e B attached to th s Modgage wh ch Mortgagor agrees to pay and perform n a t mey manner f there are any pror mortgages then :,i ~j~)~gagor~ agrees to pay a amounts owed and pedorm a ob gat OhS requ red under such mod a es and the ndebtedness secured thereb '~;.~;~RANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN MORTGAGORS OR BORROWERS. In the event of a sale, conveyance, lease; contract for deed or transfer to any person of all or any part of the real property described in Schedule A, or any interest therein, or of all or any beneficial, interest Jn Borrower or Mortgagor (if Borrower or Mortgagor is not a natural person or persons but is a corporation, limited liability company, partnership, trust, or other legal entity), Lender may, at its option, declare the outstanding principal balance· of the Obligations plus accrued interest thereon .immed ate y due and payable. At Lender's request, Mortgagor or Borrower, as the case may be, shall furnish a complete statement setting !orth all of its stockholders, members or partners, as appropriate, and the extent of their respective ownership interests. 5, ,:ASSIGNMENT OF RENTS. In consideration of the Obligations which are secured by this Mortgage, Mortgagor absolutely assigns to Lender all Mortgagor s estate, right, title, interest, claim and demand now owned or hereafter acquired in all existing and future leases of the Property (including extensions, renewals and subleases), all agreements for use and occupancy of the Property (all such leases and agreements whether written or oral, are.~hereafter referred to as the "Leases"), and all guaranties of lessees' performance under the Leases, together with the immediate and continuing [igh~t :to collect and receive all of the rents, income, receipts, revenues, issues, profits and other income of any nature now or hereafter due (including ,anyqncome of any nature coming due during any redemption period) under the Leases or from or arising out of the Property, including minimum rents~iadditional rents, percentage rents, parking or common area maintenance contributions, tax and insurance contributionS, deficiency rents, liquidated- damages following default in any Lease, all proceeds payable under any policy of nsurance covering loss of rents resulting from unte~antab ty caused by destruct on or damage to the Property, all proceeds payab e as a result of a leSsee's exercise of an option to purchase the pr@pe~y, all proceeds derived from the termination or rejection of any Lease in a bankruptcy or other insolvency proceeding, and all proceeds from any:rights and claims of any kind which Mortgagor may have against any lessee under the Leases or any occupants of the Property (all of the above are~hereafter collectively referred to as the "Rents"). This assignment is subject to the right, power and authority given to the Lender to collect and apply the Rents This assignment is recorded in accordance with applicable state law; the lien created by this assignment is intended to be specific, pertected and choate upon the recording of this Mortgage, all as provided by applicable state law as amended from time to time. As long as there is no, default under the Obligations or this Mortgage, Lender grants Mortgagor a revocable license to collect all Rents from the Leases when due and to ~se~.such proceeds in Mortgagor's business operations. However, Lender may at any time require Mortgagor to deposit all Rents into an account ma!~tained by Mortgagor or Lender at Lender's institution. Upon default in the payment of, or in the pedormance of any of the Obligations, Lender .may at its option take possession of the Property and have, hold, manage, lease and operate the Property on terms and for a period of time that [encJer deems proper Lender may proceed to collect and receive all Rents, from the Property, and Lender shall have full power to periodically make b, lte'r~tioh's, renovations, repairs or replacements to the Property as Lender may deem proper. Lender may apply all Rents in Lender's sole discretion, io p:~rnent of the Obligation or to the payment of the cost of such alterations renovations repairs and replacements and any expenses ncdent to ta'l~i~{~:.~nd retaining possession of the Property and the management and operat on of the Property. Lender may keep the Property proper y nsured ~_~d ~a~. discharge any taxes, charges c a ms, assessments and other ens which may accrue The expense and cost of these act OhS may be pa d !i~'~ :'t~, Rents received, and any unpaid amounts shall be added to the princ pa of the Ob gat OhS. These amounts, together wth other costs shall b~b6rne Pad Of the Obligations secured by this Mortgage :'~ii~EAsES AND OTHER AGREEMENTS. Mortgagor shall not take Or fail to take any acton which may cause or permt the termination or the ~it~h~01dlng of any payment in connection with any Lease pertaining to the Property. In addition, Mortgagor, without Lender's prior written consent, Shall n0!: (a)collect any monies payable under any Lease more than one month in advance; (b) modify any Lease; (c) assign or allow a lien, security interest or other encumbrance to be placed upon Mortgagor's rights, title and interest in and to any Lease or the amounts payable thereunder; or (d) terminate or cancel any Lease except for the nonpayment of any sum or other material breach by the other party thereto. If Mortgagor receives at any !!me any written communication asserting a default by Mortgagor under an Lease or purporting to terminate or cancel any Lease, Mortgagor shall promptly forward a copy of such communication (and any subsequent communications relating thereto) to Lender. All such Leases and the amounts due to Mortgagor thereunder are hereby assigned to Lender as additional security for the Obligations. 7-: COLLECTION OF INDEBTEDNESS FROM THIRD PARTY. Lender shall be entitled to notify or require Mortgagor to notify any third party (including but not limited to, lessees, licensees, governmental authorities and insurance companies) to pay Lender any indebtedness or obligation owing to Modgagor with respect to the Property (cumulatively "Indebtedness") whether or not a default exists under this Mortgage. Mortgagor shall ~iligent!~ collect the Indebtedness owing to Mortgagor from these third parties until the giving of such notification. In the event that Mortgagor possesses or receives possession of any instruments or other remittances with respect to the Indebtedness fo ow ng the g v ng of such notification or i~Jh~ instruments or other remittances constitute the prepayment of any Indebtedness or the payment of any insurance or condemnation proceeds, McJrtgagor shall hold such instruments and other remittances in trust for Lender apart from its other property, endorse the instruments and other ~.er~it~ances.to Lender, and immediately provide Lender with possession ot the instruments and other remittances Lender shall be entitled, but not ~e~quired;,=.to ~:ollect (by legal proceed!ngs or otherwise), e.x.'tend the time for payment compromise, exchange or release any ob gor or collateral, or dtherwise settle any of the Indebtedness whether or not an'Event ot oetault exists under this Mortgage. Lender sbali not be liable to Modgagor for any aCtion, error, mistake, omission or delay pertaining to the actions described in this paragraph or any damages resulting therefrom. Notwithstanding .th.e f0~egoing, nothing herein shall cause Lerlder to be deemed a mortgagee-in-possession. 8.' USE:AND MAINTENANCE OF PROPERTY, Mortgagor shall take all actions and make any repairs needed to maintain the Property in good condition·. Mortgagor shall not commit or ·permit any waste to be committed with respect to the Property. Mortgagor shall use the Property solely in bomPliance with applicable law and insurance policies. Mortgagor shaft not make any alterations, additions or improvements to the Property without Lei3der's pror written consent.. Without limiting the foregoing, all alterations, additions and improvements made to the Property shall be subject to the b~neficial interest belonging to Lender, shall not be removed without Lender's prior written consent, and shall be made at Mortgagor's sole expense. 9. 'LOSS OR DAMAGE. Mortgagor shall bear the entire risk of any loss, theft destruction or damage (cumulatively 'Loss or Damage") to the Property ~)F'an"yP&rtion thereof from any cause whatsoever. In the event of any Loss or Damage Mortgagor shall at the option of Lender, repa r the affected PJ'~pe~ to its previous condition or pay or cause to be paid to Lender the decrease in the fair market value of the affected Property. ~0!~,iNS~iRANCE. The Properly will be kept insured for its full insurable value (replacement cost) against all hazards including loss or damage caused b~!fl00di~earthquake, tornado and fire, theft or other casualty to the extent required by Lender. Mortgagor may obtain insurance on the Property from ~h"c6mpanies as are acceptab e to Lender n its sole discretion The nsurance policies shall require the nsurance company to provide Lender with ~!)~s{ ~: 3'0 . days' wr tten not ce. b.elore such po c es are atered or cance ed n any manner. The nsurance policies shall name Lender asa loss payee and provide that no act or omission of Mortgagor or any other person shall affect the right of Lender to be paid the insurance proceeds Pertaining to the loss'or damage of the Property. In the event Mortgagor fa s to acquire or maintain insurance, Lender (after providing notice as may be required by law) may in its discretion procure appropriate insurance coverage upon the Property and the insurance cost shall be an advance payable and bearing interest as described in Paragraph 21 and secured hereby. Mortgagor shall furnish Lender with evidence of insurance indicating the required coverage. Lender may act as attorney-in-fact for Mortgagor in making and settling claims under insurance policies, cancelling any policy or endorsing Mortgagor's name on any draft or negotiable instrument drawn by any insurer. All such insurance policies shall be immediately assigned, pledged and delivered to Lender as further security for the Obligations. In the event of loss, Mortgagor shall immediately give Lender written notice and Lender is authorized to make proof of toss. Each insurance company is directed to make payments directly to Lender instead of to Lender and Mortgagor. Lender shall have the right, at its sole option, to apply such monies toward the Obligations or toward the cost of rebuilding and restoring the Property. Any amounts may at Lender's option be applied in the inverse order of the due dates thereof. il. ZONING AND PRIVATE COVENANTS. Mortgagor shall not initiate or consent to any change in the zoning provisions or private covenants affecting the use of the Property without Lender's prior written consent· If Mortgagor's use of the Property is or becomes a nonconforming use under any zoning provision, Mortgagor shall not cause or permit such use to be discontinued or abandoned without the prior written consent of Lender. Mortgagor will immediately provide Lender with written notice of any proposed changes to the zoning provisions or private covenants affecting the Property. 12. CONDEMNATION. Mortgagor shall immediately provide Lender with written notice of any actual or threatened condemnation or eminent domain proceeding pertaining to the Property. All monies payable to Mortgagor from such condemnation or taking are hereby assigned tO Lender and shall be applied first to the payment of Lender's attorneys' tees, legal expenses and other costs (including appraisal fees) in connection with the condemnation or eminent domain proceedings and then, at the option ol Lender, to the payment ol the Obligations or the restoration or repair of the Property. 13. LENDER'S RIGHT TO COMMENCE OR DEFEND LEGAL ACTIONS. Mortgagor shall immediately provide Lender with written notice of any actual or threatened action, suit, or other proceeding affecting the Property. Mortgagor hereby appoints Lender as its attorney-in-fact to commence, intervene in, and defend such actions, suits, or other legal proceedings and to compromise or settle any claim or controversy pertaining thereto. Lender shall not be liable to Mortgagor for any action, error, mistake, omission or delay pertaining to the actions described in this paragraph or any damages resulting therefrom. Nothing contained herein will prevent Lender from taking the actions described in this paragraph in its own name. 14. INDEMNIFICATION, Lender shall not assume or be responsible for the performance of any of Mortgagor's obligations with respect to the Property under any circumstances. Mortgagor shall immediately provide Lender with written notice of and indemnify and hold Lender and its shareholders, directors, officers, employees and agents harmless from all claims, damages, liabilities (including attorneys' fees and legal expenses), causes of action, actions, suits and other legal proceedings (cumulatively "Claims") pertaining to the Property (including, but not limited to, those involving Hazardous Materials). Mortgagor, upon the request of Lender, shall hire legal counsel to defend Lender from such Claims, and pay the attorneys' fees, legal expenses and other costs incurred in connection therewith. In the alternative, Lender shall be entitled to employ its own legal counsel to defend such Claims at Mortgagor's cost. Mortgagor's obligation to indemnify Lender under this paragraph shall survive the termination, release or foreclosure of this Mortgage. LPWY506B ©FormAt. A.A.A.A.A.A.A.A~ion Technologies, Inc. (11/3/96) (800) 937-3799 15. TAXES AND ASSESSMENTS. Mortgagor shall p ~' all taxes and assessments relating to the Property when due and immediately provide Lender evidence of payment of same. Upon the request of Lender, Mortgagor shall deposit with Lender each month one-twelfth (1/12) of the estimated annual insurance premium, taxes and assessments pertaining to the Property. So long as there is no default, these amounts shall be applied to the payment of taxes, assessments and insurance as required on the Property. In the event of default, Lender shall have the right, at its sole option, to apply the funds so held to pay any taxes or against the Obligations. Any funds applied may, at Lender's option, be applied in reverse order of the due date thereof. 16. INSPECTION OF PROPERTY, BOOKS, RECORDS AND REPORTS. Mortgagor shall allow Lender or its agents to examine and inspect the Property and examine, inspect and make copies of Mortgagor's books and records pertaining to the Property from time to time. Mortgagor shall provide any assistance required by Lender for these purposes. All of the signatures and information contained in Mortgagor's books and records shall be genuine, true, accurate and complete in all respects. Mortgagor shall note the existence of Lender's beneficial interest in its books and records pertaining to the Property. Additionally, Mortgagor, shall report, in a form satisfactory to Lender, such information as Lender may request regarding Mortgagor's financial condition or the Property. The information shall ~ for.~uch periods shall reflect Mortgagor's records at such time, and shall be rendered with such frequency as Lender may d~signate. All informatibh fu'~ni~h~d"bY'Mortgagor to Lender shall be true, accurate and complete in all respects, and signed by Mortgagor if Lender requests. 17. ESTOPPEL CERTIFICATES. Within ten (10) days after any request by Lender, Mortgagor shall deliver to Lender, or any intended transferee of Lender's rights with respect to the Obligations a signed and acknowledged statement specifying: (a) the outstanding balance on the Obligations; and (b) whether Mortgagor possesses any claims, defenses, set4offs or counterclaims with respect to the Obligations and, if so, the nature of such claims, defenses, set-offs or counterclaims. Mortgagor will be conclusively bound by any representation that Lender may make to the intended transferee with respect to these matters in the event that Mortgagor fails to provide the requested statement in a timely manner. 18. EVENTS OF DEFAULT. An Event of Default will occur under this Mortgage in the event that Mortgagor, .Borrower or any guarantor of any Obligation: (a) commits fraud or makes a material misrepresentation at any time in connection with the Obligations or this Mortgage; (b) fails to meet the repayment terms of the Obligations for any outstanding balance; or (c) by any action or inaction, adversely affects the Property, or any right of Lender in such Property, including, but not limited to, transfer of title to or sale of the Property without the permission of Lender, failure to maintain required insurance or to pay taxes on the Property, allowing the filing of a lien senior to that held by Lender, death of the sole Borrower obligated under the Obligations, allowing the taking of the Property through eminent domain, or allowing the Property to be foreclosed by a lienbolder other than Lender. In addition, an Event of Default shall occur if, as a result of any of the following, the Property, or any right of the Lender in the Property, is adversely affected: the Borrower, Mortgagor or any guarantor of any Obligations commits waste or otherwise destructively uses or fails to maintain the Property, uses the Property in an illegal manner which may subject the Property to seizure, or moves from the Property; a judgment is filed against the Borrower, Mortgagor or any guarantor of any Obligation; or one of two Borrowers obligated under the Obligations dies. , ,:.:h: 19. RIGHTS OF LENDER ON EVENT OF DEFAULT. Upon the occurrence of an Event of Default under this Modgage, Lender shall be entitled.~,to..' exercise one or more of the following remedies without notice or demand (except as required by law): :,: ,;?:d r~:,. (a) to declare the Obligations immediately due and payable in full, such acceleration shall be automatic and immediate if the Event of Default is a filing, under the Bankruptcy Code; .: ,, :.~, ~ (b) to collect the outstanding Obligations with or without resorting to judicial process; (c) to require Mortgagor to deliver and make available to Lender any personal property or Chattels constituting the Property at a place reasonably convenient to Mortgagor and Lender; ~ . (d) to enter upon and take possession of the Properly without applying for or obtaining the appointment of a receiver and, at Lender's option, to ' appoint a receiver without bond, without first bringing suit on the Obligations and without otherwise meeting any statutory conditions regarding. receivers, it being intended that Lender shall have this contractual right to appoint a receiver; (e) to employ a managing agent of the Property and let the same, in the name of Lender or in the name of Mortgagor, and receive the rents, incomes, issues and profits of the Property and apply the same, after payment of all necessary Charges and expenses, on account of the Obligations; ' ' ' (f) to pay any sums in any form or manner deemed expedient by Lender to protect the security of this Mortgage or to cure any default other than.. payment of interest or principal on the Obligations; ~. ~.:~:~'~:~: ~:,i,'. (g) to foreclose this Mortgage; ' ":"~':"~':':: ~"'-~::" ' (h) to set-off Mortgagor's Obligations against any amounts owed Mortgagor by Lender including, but not limited to, monies instr~me~t~';~'~, :i ::..~.: deposit accounts maintained with Lender or any currently existing or future affiliate of Lender; and '~ .~' ' :'~ w~m.' (i) to exercise all other rights available to Lender under any other written agreement or applicable law. Lender's rights are cumulative and may be exercised together, separately, and in any order. In the event that Lender institutes an action seeking the recovery of any of the Property by way of a prejudgment remedy in an action against Mortgagor, Mortgagor waives the posting of any bond which might otherwise be required. Lender or ·Lender's designee may purchase the Property at any sale. The Properly or any part thereof may be sold in one parcel, or in such parcels, manner o~ order· as Lender in its sole discretion may e!ect, and one or mcre exercises of the power herein granted shall not extinguish or exhaust the power unless the entire Properly is sold or the Obligations are paid in full. ~, :: 20. SECURITY INTEREST UNDER THE UNIFORM COMMERCIAL CODE. This Mortgage shall be considered a financing statement and a fi~ur~ filing pursuant to the provisions of the Uniform Commercial Code (as adopted by the state where the Property is located) covering fixtureS, chattels, and articles of personal property now owned or hereafter attached to or to be used in connection with the Property together with any and all. replacements thereof and additions thereto (the "Chattels"), and Mortgagor hereby grants Lender a security interest in such Chattels. The debtor is the Mortgagor described above. The secured party is the Lender described above. Upon demand, Mortgagor shall make execute and deliver;such~ :~ security agreements (as such term is defined in said Uniform Commercial Code) as Lender at any time may deem necessary or proper or required grant to Lender a perfected security interest in the Chattels, and upon Mortgagor's failure to do so, Lender is authorized to sign any such agreement as.,: '.. the agent of Mortgagor. Mortgagor hereby authorizes ·Lender to file financing statements (as such term is defined in said Uniform Commercial?;:;od~): with respect to the Chattels, at any time, without the signature of Mortgagor. Mortgagor will, however, at any time upon request of Eender,;Si~'~!~u~h!! financing statements. Modgagor will pay all filing fees for the filing of such financing statements and for the refiling thereof at the times [equired~ in: the opinion of Lender, by said Uniform Commercial Code. If the lien of this Mortgage is subject to any security agreement covering the Chattelsi~the~:z': in the event of any default under this Mortgage, all the right, title and interest of Mortgagor in and to any and all of the Chattels is hereby assigned to Lender, together with the benefit of any deposits Or payments now or hereafter made thereof by Mortgagor or the predecessors or successors in title Of Mortgagor in the Property. ~' 21. REIMBURSEMENT OF AMOUNTS EXPENDED BY LENDER. Lender, at Lender's option, may expend funds (including attorneys' fees and .legal expenses) to perform any act required to be taken by Mortgagor or to exercise any right or remedy of Lender under this Mortgage. Upon dema0, d .. Mortgagor shall immediately reimburse Lender for all such amounts expended by Lender together with interest thereon at the lower of the highest rate described in any Obligation or the highest rate allowed by law from the date of payment until the date of reimbursement. These sums shall be included in the definition of Obligations herein and shall be secured by the beneficial interest granted herein. If the Obligations are paid affe~ :the beginning of publication of notice of sale, as herein provided, or in the event Lender shall, at its sole option, permit Mortgagor to pay any part of 'th~ Obligations after the beginning of publication of notice of sale, as herein provided, then, Mortgagor shall pay on demand all expenses incurred byl the Lender in connection with said publication, including reasonable attorneys' fees to the attorneys for the Lender, and this Mortgage shall be S~C~r![~"f~::. 22. APPLICATION OF PAYMENTS. All payments made by or on behalf of Mortgagor may be applied against the amounts paid by Lender!(incl~tin:g::;::i attorneys' fees and legal expenses) in connection with the exercise of its rights or remedies described in this Mortgage and then to the payment of tl~'e ' remaining Obligations in whatever order Lender chooses.., i 23, POWER OF A'I-rORNEY. Mortgagor hereby appoints Lender as its attorney-in-fact to endorse Mortgagor's: name on all instruments: and-,~tl~ir~,- documents pertaining to the Obligations or Modgage. In addition, Lender shall be entitled, but not required, to perform any action or execUte:';any document required to be taken or executed by Mortgagor under this Mortgage. Lender's performance of such action or execution of such documi~iits!'. shall not relieve Mortgagor from any Obligation or cure any default under this Mortgage. The powers of attorney described in this Mortgage are' coupled with an interest and are irrevocable. 24. SUBROGATION OF LENDER, Lender shall be subrogated to the rights of the holder of any previous lien, security interest or encembranCe' discharged with funds advanced by Lender regardless of whether these liens, security interests or other encumbrances have been released of record; :~:':~:~ 25. COLLECTION COSTS AND A'FrORNEYS' FEES. Upon default by borrower or Mortgagor under the Obligations and referral of this Mb'rt~J~ ij~:; an attorney who is not a salaried employee of Lender, Mortgagor agrees to pay Lenders reasonable attorneys' fees Add tonally Mortgagdr'a. gre~l~'~:; pay a reasonab e expenses ncurred by Lender n forec os ng and rea z ng on the Property ' ' - : .!~!:'~: .'~ i!.i 26. PARTIAL RELEASE. Lender may release its interest in a portion of the Property by executing and recording one or more partial. affecting its interest in the remaining portion of the Property. Nothing herein shall be deemed to obligate Lender to release any of. itsiir~temSt Property (except as requ red under Paragraph 34), nor shall Lender be obligated to release any part of the Property if MortgagOr is in default und~r.~.ithis Mortgage. 27. MODIFICATION AND WAIVER. The modification or waiver of any of Mortgagor's Obligations or Lender's rights under th s contained in a writing signed by Lender. Lender may perform any of Borrower's or Mortgagor's Obligations, delay or fail to exercise any of:its¢~ighi~ 5i' accept payments from Mortgagor or anyone other than Mortgagor without causing a waiver of those Obligations or rights. A waiver on one occ~si0d' '.. shall not constitute a waiver on any other occasion. Mortgagor's Obligations under this Mortgage shall not be affected if Lender amends,'' compromises, exchanges, fails to exercise, impairs or releases any of the Obligations belonging to any Mortgagor, Borrower or third party or any rights against any Mortgagor, Borrower or third party or any of the Property. Lender's failure to insist upon strict performance of any of the Obligations shall not be deemed a waiver, and Lender shall have the right at any time thereafter to insist upon strict performance. -: · 21]. SUCCESSORS AND ASSIGNS. This Mortgage shall be binding upon and inure to the benefit of Mortgagor and Lender and their respective successors, assigns, trustees, receivers, administrators, personal representatives, legatees and devisees.. ':~..:', t~;;: i .:~: .: ' .~:.:~,,~ :.~ '-/ ;: 29~,!NOTICES. Except as otherwise required by law, any notice or other communication to be'provided under this Mortgage shall be in writing and : · ,s. ent~te.~the parties at the addresses described in this Mortgage Or such other address as the parties may designate in writing from time to time. Any '?: "'~ 'sbch ~tice So'given and sent by frst cass ma , postage prepad, sha be deemed given the earlier of three (3) days after such notice is sent or :'::~.,when received by the person to whom such notice is being given. ::~':i :i ¢30. SEVERABILITY. Whenever possible each provision of this Mortgage shall be interpreted so as to be effectve and va d under app cabe state i~: ~," .:.: law. f any prov s on of th s Mortgage v o ates the aw or s unenforceab e, the rest of the Mortgage shall continue to be valid and enforceable. 31. APPLICABLE LAW. This Mortgage shall be governed by the taws of the state where the Property is located. Unless applicable law provides ' otherwise, Mortgagor consents to the jurisdiction and venue of any court selected by Lender, in its sole discretion, located in that state. 32. NO THIRD-PARTY RIGHTS. No person is or shall be a third-party beneficiary of any provision of the Mortgage. All provisions of the Mortgage in favor of Lender are intended solely for the benefit of Lender, and no third party shall be entitled to assume or expect that Lender will waive or .consent to the modification of any provision of the Mortgage, in Lender's sole discretion. ': 33. PRESERVATION OF LIABILITY AND PRIORITY. Without affecting the liability of Borrower, Mortgagor, or any guarantor of the Obligations, or '~i:" :any other person (except a person expressly released in writing) for the payment and performance of the Obligations, and without affecting the rights : ' of Lender with respect to any Property not expressly released in writing, and without impairing in any way the priority of this Mortgage over the ,interest of any person acquired or first evidenced by recording subsequent to the recording of this Mortgage, Lender may, either before or after the · maturity of the Obligations, and without notice or consent: release any person liable for payment or performance of all or any part of the Obligations; :make any agreement altering the terms of payment or performance of all or any part of the Obligations; exercise or refrain from exercising or waive ~:any right or remedy that Lender may have under this Mortgage; accept additional security of any kind for any of the Obligations; or release or ' otherwise deal with any real or personal property securing the Obligations. Any person acquiring or recording evidence of any interest of any nature ;in the Property shall be deemed, by acquiring such interest or recording any evidence thereof, to have consented to all or any such actions by Lender. ~34. DEFEASANCE. Upon the payment and performance in full of all of the Obligations, Lender will execute and deliver to Mortgagor those documents that may be required to release this Mortgage of record. Mortgagor shall be responsible to pay any costs of recordation. 35. RELEASE AND WAIVER OF HOMESTEAD. Mortgagor hereby relinquishes and waives all rights under and by virtue of the homestead laws of the State of Wyoming and covenants and agrees that Mortgagor is lawfully seized of said Property, that it is free from all encumbrances, and hereby covenants to warrant and defend the title of said Property against the lawful claims of all persons whomsoever. Spouse of Grantor upon the consideration aforesaid, does hereby release and forever quit-claim unto Lender, as Mortgagee, all his/her rights of homestead in and to the above granted Property. 36. MISCELLANEOUS. Mortgagor and Lender agree that time is of the essence. Mortgagor waives presentment, demand for payment, notice of dishonor' and protest except as required by law. All references to Mortgagor in this Mortgage shall include all persons signing below. If there is more than one Mortgagor, their Obligations shall be joint and several. This Mortgage represents the comp!ere integrated understanding between ·. Mortgagor and Lender pertaining to the terms and conditior)s hereof. ' ~,37. ADDITIONAL TERMS: Mortgagor acknowledges that Mortgagor has read, understands, and agrees to the terms and conditions of this Mortgage, and acknowledges receipt of an exact copy of same. IN WITNESS HEREOF, Mortgagor has executed this instrument either individually or has caused this instrument to be executed and delivered in its name 'by its duly authorized representative on the date of the acknowledgment. Datedthis ~;t-h dayof Nrc)vPmhp¥- 213~, MORTGAGOR:BARBAR.~ S. LEWIS MORTGAGOR: BARBARA S. LEWIS MORTGAGOR: MORTGAGOR: MORTGAGOR: MORTGAGOR: MORTGAGOR: MORTGAGOR: LPWY506D © FormAlion Technologies, Inc. (11/3/96) (800) 937-3799 Page 4 ol 5 County of A/ Z, SS: On this day of ~'f~.e).personally appeared ........ V ""- "-'~'J <' + " '. ~ to me known to be the person(s) described ~n and who executed-the_ for~t~ment,. ~d~ acknowledged that h~she/they executed ~e same as his/her/their free act and deed, including the rele~e and waiver of the ~h~f:homeste~d. ~ ~ ~ ~ _ . ~ Given under my hand and notarial seal this [~ day of ~7-~~~ ~ ~ --',/ ~ .? ~ '...' ,0 < . : ~/ / 'G ~ _~ xx ~ I I ~o~WPuD)~c / I :~. .... X ~ ~h,~ %,/,~ OF ~u,,~,, ~d - ~ ~ · .: :: My Commission Expires: ~ ' ~ ~ ¢ ~/~¢~ ~' ': : ;:. '.:: ::{.j': .? ;~:. State of Wyoming ) ) County of ) On this day of , before me personally appeared to me personally known, who, being by me duly sworn, did say that he/she/they are the respectively, of said the above signed person(s) acknowledged the execution of said instrument to be the free act and deed of said Given under my hand and notarial seal this day of My Commission Expires: , executing the foregoing instrument, that said instrument was signed on behalf of said:: , by authority of its i:and ~, Notary Public - . . RELEASE OF HOMESTEAD RIGHTS: State of Wyoming ) ) ss: County of ) On this day of before me personally appeared to me personally known, who, being by me duly sworn, did say that he/she/they are the respectively, of said , executing the foregoing instrument for purposes of waiving and relinquishing his/her/their homestead rights, acknowledged that he/she/they had been fully advised o! his/her/their rights and the effect of signing, and acknowledged that he/she/they executed the foregoing instrument as his/her/their free act and deed. Given under my hand and notarial seal this day of My Commission Expires: Notary Public Thefollowing describedrealprope~ IocatedintheCounty of LINCOLN Stateof LOT 17 OF THE TRAIL CREEK SUBDIVISION, LINCOLN COUNTY, WYOMING AS DESCRIBED ON THE OFFICIAL PLAT NO. 196-F FILED APRIL 3, 2002 AS INSTRUMENT NO. 880072 OF THE RECORDS OF THE LINCOLN COUNTY CLERK. PERM3uNENT PARCEL NUMBER: 12-361-9-15-3-00-391-00 Wyoming BORROWER AND LENDER REQUEST THE HOLDER OF ANY MORTGAGE, DEED OF TRUST OR OTHER ENCUMBRANCE WITH A LIEN WHICH HAS PRIORITY OVER THIS MORTGAGE TO GIVE NOTICE TO LENDER, AT LENDER'S ADDRESS SET FORTH ON PAGE ONE OF THIS MORTGAGE, OF ANY DEFAULT UNDER THE SUPERIOR ENCUMBRANCE AND OF ANY SALE OR OTHER FORECLOSURE ACTION. THISDOCUMENTWASPREPAREDBY:KeyBank National Association / David G. AFTER RECORDING RETURN TO LENDER AT ITS ADDRESS DESCRIBED ABOVE. ---- ,, :;::;,;',;:;,::',,', - LPWY506E © Fomu ...;,. ...... .~og~es, mc (11/3/98) (800)937-3799 Fisher