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HomeMy WebLinkAbout89776130292 (01)~ ¢cX-k%' ,:;" WYOMING MORTGAGE THIS M~q2j'Q~ 1( Mortgage ) ,s mC~t.e~l:h~slmtt-;:;!daS,: ~February, 2004, between Rock~y Mountain-RS~ghes, I' -n~., a Wyoming corporati,0n (,Mori~agor,,), Whose addreSs is P.O. · · Ir* ,,~ hi ~ .',t , '~;,~l .' Box ¢447, Alpine, WY 83128 and Olympic Coast l*l{k)eshnent:. ~nc~, ~ Washington corporatmn, whose address is 801 2na Avenue, Suite 315, Seattle;"VCA~' 981'04, (¢~ortgagee ). Hereinafter, Rocky Mountain Rogues, Inc., a Wyoming corporation may be referred to as "Mortgagor·', WITNESSETH: A. Rocky Mountain Rogues, Inc., a Wyoming corporation ("Borrower") and Mortgagee have executed that certain Loan and Security Agreement dated February 19, 2004 ("Loan Agreement") which more specifically sets forth the terms and conditions of the loan between the parties. The Loan Agreement and all documents, instruments and agreements executed in connection therewith may be collectively referred to herein as the "Loan Documents". B. James H. Blittersdorf and Juline Christofferson has executed and delivered to Mortgagee that certain Continuing Guaranty dated February 19, 2004 ("Guaranty") guaranteeing all of the indebtedness and obligations of Borrower to Mortgagee pursuant to the Loan Documents, and all extensions or renewals of said indebtedness and obligations as more specifically set forth in the Guaranty. C. The Loan Documents and the Guaranty may be collectively referred to herein as the "Instruments"i D. Mortgagor desires to secure the payment and performance of the indebtedness and obligations evidenced by the Guaranty and this Mortgage to Mortgagee (collectively "Indebtedness") pursuant to the terms and conditions of this Mortgage. NOW THEREFORE, Mortgagor, in consideration of the premises and for the purposes aforesaid, does hereby mortgage with power of advertisement and sale, to secure payment and performance of the Indebtedness, the real property described on Exhibit A attached hereto and incorporated herein by this reference, situated in the County of Lincoln, State of Wyoming, also known as Alpine, Wyoming 83128; TOGETHER WITH all buildings and improvements now or hereafter erected on the property; all rents, issues, revenues, profits, royalties, income and other revenue derived from the property; all leasehold estate, 'right, title and interest of Mortgagor in and to all leases or subleases covering the property or any portion thereof now or hereafter existing or entered into and all right, title and interest of Mortgagor in all leases,' permits, allotments, licenses and privileges, whether or not appurtenant to the property, from the United States or the State of Wyoming or any department or agency of either for the purpose of grazing, pasturing or feeding livestock on any of the public lands of the United States or the State of Wyoming; TOGETHER'WITH all easements, rights-of-way, privileges and appurtenances, and all other rights of Mortgagor in connection with the property, now or hereafter acquired, including but not limited to the rights of reversion and remainder; and all fixtures now and hereafter located thereon including but not limited to all shades, Wall-to-wall carpeting, screens and screening, awnings, plants, shrubs, fencing, landscaping, plumbing material, gas and electric equipment, and all heating, coOling, air conditioning and lighting fixtures, equipment and apparatus now or hereafter attached to or forming a part of the property, all of which shall be deemed realty and conveyed hereby; TOGETHER WITH all water rights, conditional water rights and applications for permits that are appurtenant to or have been used or intended for use in connection with the Property, including but not limited to (i) ditch, well, pipeline, spring and reservoir rights, whether or not adjudicated, evidenced by stock or shares, or evidenced by any well or other permit, (ii) all rights with respect to 'honcontributory groundwater underlying the property, (iii) any permit to construct, any water well, water from which is intended to be used in connection with the property, and (iv) all of Mortgagor's right, title and interest under any decreed or pending plan of augmentation or water exchange plan. G:\jody~ROCKY MOUNTAIN MORTGAGE.doc TOGETHER WITH all replacements, substitutions, and additions to the foregoing, all of which may be collectively referred to herein as the "Property". MORTGAGOR covenants and agrees as follows: 1~ : Covenants of Title. Mortgagor, 'for himself and for his.heirs, successors and assigns, covenants and agrees that he is lawfully seized of the Property in fee simple, and has good right, full power and lawful authority to mortgage, grant, and convey the Property as provided herein. Mortgagor further warrants that the Property is free and clear of all liens and encumbrances whatsoever, except as set forth on Exhibit B attached hereto and incorporated herein by this reference, and the Property is in the quiet and peaceable possession of said MortgagOr, his successors and assigns, and against all and every person or persons lawfully claiming or to claim the whole or any part thereof, Mortgagor shall and will warrant and forever defend. ~. 2. payment of Principal and Interest; Late Charges; and Prepayment Fee.*,. Mortgagor shall promptly pay the Indebtedness to Mortgagee when due, under the terms of the Instruments, including any late charges due thereunder and prepayment fees (if any) provided therein. 3. payment of Taxes and Prior Encumbrances. During the continuance of the Indebtedness or any part thereof under the Instruments, Mortgagor will timely pay all taxes, assessments, charges, fines and penalties levied on the Property (including water and/or water company stock assessments and periodic condominium or homeowner association dues or assessments, if any) and all amounts due or to become due on account of principal and interest on prior encumbrances, if any (unless otherwise set forth below). 4. Funds for Taxes and Insurance. Unless paid to a prior mortgagee on the Property, Mortgagor, for himSelf and for his heirs, successors and assigns, covenants and agrees to pay concun-ently with the regular payments on said Instruments, as a tax and insurance reserve, 1/12 of the ammal property taxes plus 1/12 of the annual premiums for insurance policies required by the terms of this Mortgage, times the number of months for which the interest payment is made, the payments to be held in a fund for the payment of taxes'and insurance premiums when due. Should such reserve fund be insufficient to pay the taxes on January 1 of each year and the insurance premiums when due, the Mortgagor agrees to promptly pay any deficiency when notified of the amount. These reserve funds shall be non-interest bearing to Mortgagor and shall be retained by Mortgagee as additional security for the repayment of the underlying Indebtedness and may be commingled with other such funds. If there is any delinquency in the payments due under the Instruments, such reserve funds may be first applied by Mortgagee to pay such delinquency and Mortgagee shall have a first and prior lien thereon for such purpose. 5. Advances by Mortgagee for Taxes Insurance 'or Prior Encumbrances. In the case of the refusal or neglect of Mortgagor to timely pay for and deliver the policies of insurance :required herein or to pay taxes or assessments as set forth herein, or amounts due or to become due on prior liens or encumbrances, if any, Mortgagee may, but is not obligated to, demand Mortgagor to immediately make any such payments, and, in the event Mortgagor fails to i~mnediately make said payments, Mortgagee may procure said insurance or pay such taxes, assessments or amounts due upon prior liens Or encumbrances, if any, and all monies thus paid, with interest thereon at the rate of six and one half percent (6.5%) per annum in excess of the Reference Rate (as defined in the Loan Agreement) then in effect, shall become so much additional Indebtedness secured by this Mortgage and shall be paid out of the proceeds of the sale of the Property if nOt otherwise paid by Mortgagor. Such failure to so insure or to pay such amounts shall be a violation or breach of the covenants of this Mortgage. 6. Inspection' and Appraisal. So long as this Mortgage remains in force and effect, Mortgagee shall have the right at all reasonable times to inspect the Property given as security for the Instruments and all applicable books and records related thereto. Mortgagor shall also furnish at its cost, as Mortgagee may request from time to time, a new or up-dated appraisal for said Property; provided, however, that Mortgagee may make only one such request during any twelve (12) month period so long as an Event of Default has not occurred under this Mortgage. 7. Insurance of Premises. Mortgagor will keep all buildings on said lands and all other property hereinabove described insured against loss by fire, lighting, windstorm, tornado, G:\judy\ROCKY MOLYNTAIN MORTGAGE.doc flood and boiler explosion or malfunction, pubiic liability, and such other causes as ~nay be required by Mortgagee in an amount satisfactory to Mortgagee and by an insurance company satisfactory to Mortgagee. Mortgagor will deliver to Mortgagee the policy or .policies of insurance, with a standard mortgage clause in favor of Mortgagee attached thereto as further' security for the Indebtedness aforesaid. In the event of loss or damage to the Property, the proceeds of all such insurance shall be applied to the repair, rebuilding,.or replacement of the improvements damaged or destroyed. Such proceeds shall be retained in the possession of Mortgagee until the said repairing, rebuilding or replacement is substantially complete, in the sole judgment of Mortgagee. 8. Hazardous Substances Including .Asbestos. Mortgagor hereby warrants that the Property is not now nor has it ever been the site of storage, manufacture, generation, dispOsal of releases of hazardous Substances, as said terms and actions are defined under the Comprehensive Environmental response, Compensation, and Liability Act of 1980, 42 U.S.C. Section 9601- 9657, as amended from time to time, or as said terms and actions are defined by any other or similar federal, state or local environmental statute, ordinance, regulation, or guideline, or any other violations which might result in responsibilities and liabilities thereunder. Mortgagor fi~rther warrants that neither Mortgagor nor its employees, agents, contractors, sub-contractors, invitees, or representatives shall cause the release of hazardous substance, or use, generate, manufacture, store, transport or dispose of any hazardous substances on, under, or about the Property without Mortgagee's express written approval of each such event, which approval may be withheld by Mortgagee in its sole discretionl If Mortgagee gives it written approval for performance of activity involving hazardous substances, Mortgagor agrees at all times to comply fully and in a timely manner, and to cause all employees, agents, contractors, sub-contractors, invitees, or representatives of Mortgagor or any other person occupying the Property to so comply, with all present and future applicable federal, state and local statutes, regulations, ordinances and guidelines relating thereto. In no event shall Mortgagee be held responsible for any violations as a result of its consent to said activity. Mortgagor further warrants that any buildings located on the Property comply with current federal, state and local regulations, ordinances, guidelines and statutes governing asbestos containing material. Mortgagor agrees that any disturbance of the asbestos containing material in the building shall be done in full compliance with any federal, state, or local regulations, ordinances, guidelines and statues. Mortgagor hereby indemnifies and holds Mortgagee harmless from and against any and alt 'claims, losses damages, liabilities, fines, penalties, actions, causes of action, charges, administrative and judicial proceedings and orders, judgments, remedial action requirements, enforcmnent actions of any kind, and all costs and expenses (including, but not limited to, attorney fees and consultant fees, and clean-up costs attributable to removal of hazardous substances from the Property) incurred in connection with hazardOus substances, including without limitation asbestos containing materials, which Mortgagee may incur or suffer as a reSult of violatiOn by Mortgagor of any covenant in this paragraph. The warranties and indemnities contained in this paragraph shall survive the release of this Mortgage and payment of the Instruments Secured hereby. This agreement to indemnify and hold harmless shall be in addition to any other obligations or liabilities that Mortgagor may have to Mortgagee at common law, or by statute, or otherwise. Mortgagor shall notify Mortgagee in ~vriting immediately of any discovery or release or tl~reatened release of any hazardous substance, including but not limited to, asbestos fibers, on, in, under, or about the Property. 9. Mineral EXploration and Development. Mortgagor agrees to make no conveyance whatever in cmmection with the exploration of oil and gas or other minerals On said Property and to refrain from such activity, unless Mortgagee should consent in writing to any such conveyance or activity. Mortgagor further agrees that it will prosecute any cause or causes of action diligentlY and to final conclusion arising from the damages to the Property resulting from the exploration for gas and oil or other minerals loCated, thereon in such a mariner as to cause damage thereto, which are recoverable in law or in equity under the laws of Wyoming, applying the proceeds to the debt secured by this Mortgage; provided, however, Mortgagor, with the written consent of Mortgagee, may make such settlements out of Court as may be deemed just and equitable to the parties concerned. 10. Special DistrictS. Mortgagor shall give Mortgagee prompt written notice of (a) the proposed creation of any improved district, or county, municipal, or quasi-governmental district of any nature, and (b) of any action in respect to such district or any currently existing district, which may affect the Property, including, without limitation, any proposed service plan or modification of such plan, proposed organization of such district and election in regard to such G:\judy~ROCKY MOUNTAIN MORTGAGE.doc 3 district organization, the proposed issuance of bonds or other evidence of indebtedness by such district, whether such issuance is for a refinancing or for the issuance of new bonds or other evidence of indebtedness, and the proposed inclusion of the Property in any such district. Mortgagor may exercise its right to vote at any public election held for such a purpose without the consent or approval of Mortgagee. However, Mortgagor shall not otherwise consent to the creation of any such district or take any such action with respect to a district which may affect the Property without the prior written consent of Mortgagee, which consent shall not be unreasonably withheld. 11. Sale or 'Encumbrance of the Property. In the event Mortgagor shall sell, convey, alienate or dispose of the Property described in this Mortgage, any part thereof or any interest therein (including, but not limited to, outright conveyance, conveyance or alienation of any interest in the Property or any part thereof by land instalhnent contract or contract for deed or alienation of any interest in the Property'by lease or rental agreement ~vith or without option to purchase), the entire Indebtedness, irrespective of the maturity dates expressed in the Instruments, shall, at the option of Mortgagee and without delay or notice, immediately become due and Payable. If said Indebtedness is accelerated by reason of sale, conveyance, alienation or disposal of the Property or any part thereof, the Indebtedness as accelerated shall include as a · -part of the principal balance any interest accrued at the rate set forth in said Instruments. In the event Mortgagor shall further encumber or permit the further encumbrance of the Property described in this Mortgage by creation of a lien or encumbrance superior or junior to the lien of this Mortgage, the entire obligation irrespective of the maturity dates expressed in the Instruments, shall, at the option of Mortgagee and without delay or notice, become immediately due and payable. 12. Prosecution or Defense of Action Affecting Obligation or Lien. If Mortgagor fails to perform the covenants and agreements contained in this Mortgage, or if any action or proceeding is commenced which affects Mortgagee's interest in the subject Property or the validity of the Instruments secured hereby including, but not limited to, actions in eminent domain, code enforcement, insolvency or arrangements or proceedings involving bankruptcy or a decedent's estate, or actions by parties claiming an interest senior and paramount to the lien of this Mortgage, then Mortgagee shall have the right to employ its own legal counsel to defend, pursue, compromise, negotiate, or prevent any such litigation and all sums expended by Mortgagee, including reasonable attorneys' fees and other costs in connection with any such legal action, shall become so much additional Indebtedness secured by this Mortgage. The failure of Mortgagor to pay Mortgagee all such sums expended immediately upon delnand shall entitle Mortgagee, at its option, to declare the entire Indebtedness to be at once due and payable. 13. Forbearance;. Substitution of Collateral; Partial Release. It is understood and agreed that Mortgagee may, at 'any time, without notice to any person, grant to the Borrower or Mortgagor any indulgences or forbearance, grant an extension of time for payment of any Indebtedness, or allow an~; change or changes, substitution or substitutions, of or for any of the Property described in this Mortgage or any other collateral which may be held by Mortgagee. Mortgagee's action in doing so shall in no way affect the liability of Borrower or Mortgagor, any endorsers of the Indebtedness or m~y other person liable for the payment of said Indebtedness, nor shall it in any way affect or impair the lien of this Mortgage upon the remainder of the Property and upon other collateral which is not changed or substituted. It is also understood and agreed that Mortgagee may, at anY time, without notice to any person, release any portion of the Property described in this Mortgage or any other collateral which may be held as security for the payment of the Indebtedness either with or without consideration for such release or releases. Such releases shall not in any manner affect the liability of Borrower or Mortgagor, all endorsers and all other persons who are or shall be liable for the payment of said Indebtedness, nor shall said releases in any manner affect, disturb or impair, the validity and priority of this Mortgage, for the full amount of the Indebtedness remaining unpaid together with all interest and advances which shall become payable, upon the remainder of the Property and other collateral which is unreleased. It is distinctly understood and agreed by Mortgagor and Mortgagee that any release or releases may be made by Mortgagee without the consent or approval of any person.or persons whomsoever. 14. Security Agreement; Personalty. Mortgagor and Mortgagee agree that this Mortgage shall constitute a Security Agreement within the meaning of the Wyoming Uniform Commercial Code (hereinafter in this paragraph referred to as the ".Code") with respect to any G:\judy~I. OCKY MOUNTAIN MORTGAGE.doc 4 now existent or hereafter acquired personal property, including but not linfited to, building materials, fixtures, rents, or proceeds owned by Mortgagor, his heirs, successors or assigns and affixed to, located upon or used in conjunction with the above-described Property or may or may not constitute a "fixture" including but not limited to all (a) heating, air conditioning, freezing, lighting, laundry, incinerating and power equipment, engines; pipes; pumps; tanks; motors; conduits; switchboards; plumbing, lifting, cleaning, fire prevention, fire extinguishing, refrigerating, ventilating, cooking, and communications apparatus; boilers, water heaters, ranges, furnaces and burners, appliances, vacuum cleaning systems; elevators; shades; awnings; screens; storm doors and windows; stoves; refrigerators; attached cabinets; partitions; ducts and compressors; rugs and carpets; draperies; landscaping and all additions thereto and replacements therefor; (b) all water rights and conditional water rights that are appurtenant to or that have been used or are in tended for use in co~mection with the Property, including but not limited to (i) ditch, well, pipeline, spring and reservoir rights, whether or not adjudicated or evidenced by any well or other permit, (ii) all rights with respect to noncontributory groundwater underlying the Property, (iii) any permit to construct any water well, water from which is intended to be used in connection with the Property, and (iv) all of Mortgagor's right, title and interest under any decreed or pending plan of augmentation or water exchange plan; (c) all goods, fixtures, building and other materials, no~v owned or hereafter acquired by Mortgagor and used, intended for use, or usable in the constrhction, development, or operation of the Property, ~vhether located on the Property or elsewhere, together with all accessions thereto, replacements and substitutions therefor and proceeds thereof; (d) all permits, licenses and franchises which have value in connection with the ownership or operation of the Property; (e) all site plans, plats, architectural plans, specifications, work drawings, surveys, engineering reports, test borings, market surveys and other work products relating to the development of the Property; (f) all present and future contracts and policies of insurance which insure the Property or any building, structures or improvements thereon, or any such fixtures, against casualties and theft, and all monies and proceeds and rights thereto which may be or become payable by virtue of any such insurance contracts or policies; (g) all compensation, proceeds or awards for the taking of title to or possession or use of the property of any such buildings, structures, improvements, fixtures or personal property or any part thereof; (h) all rents, issues, income and profits of and fi'om the Property including, but not limited to, contracts for purchase of all or part of the Property between Mortgagor and third parties and all leases and tenancies now or hereafter affecting said real estate; (i) all products and proceeds of all of the foregoing (said property and the replacements, substitutions and additions thereto and the proceeds thereof being hereinafter collectively referred to as the "Collateral"). A security interest in and to the Collateral is hereby granted to Mortgagee and all of Mortgagor's right, title and interest therein, are hereby assigned to Mortgagee, all to secure payment of the Indebtedness and to secure performance of the terms, covenants and provisions thereof. In the event of a default under this Mortgage, Mortgagee shall have the option of proceeding with respect to the Collateral as to both real and personal property in accordance with its right and remedies with respect to the real property, in which event the default provisions of the Code shall not apply. In such event, Mortgagee's bid at the foreclosure sale shall be deemed to be a bid for both the real and personal property. The deed issued in such sale shall also constitute a bill of sale for the said personal property. Mortgagor shall not be entitled to redeem either the real or personal property individually, but must redeem both at the same time. The parties agree that, in the event Mortgagee shall elect to proceed with respect to the Collateral separately from the real property described herein, five (5) days' notice of the sale of the Collateral shall be reasonable notice. The reasonable expenses of retaking, holding, preparing for sale, selling and the like incurred by Mortgagee shall include, but not be limited to, reasonable attorneys' fees and legal expenses incurred by Mortgagee. 15. Condemnation. If the Property or any part thereof shall be condenmed or taken under the power of eminent domain, all damages and awards for the Property so taken shall be applied, at the option of Mortgagee, either to the repayment of the Indebtedness or to the repairing, rebuilding or restoration of the lands and/or improvements damaged by said taking. Any balance of such damages or awards remaining after application as above set forth shall be paid over to Mortgagor. 16. Events:of Default. Upon the occurrence of any of the following events (collectively, "Events of Default" and singularly, an "Event of Default") with respect to Borrower or Mortgagor or any assignee, maker, endorser or guarantor of any of the Instruments: (a) the occurrence of an "Event of Default" as defined in the Loan Agreement; or (b) default in payment or performance of, or the violation or breach of any of the terms, conditions, covenants G:\judy~ROCKY MOUNTAIN MORTGAGE.doc 5 or agreements contained in, this Mortgage or the Guaranty; then the Instruments secured hereby and all other obligations, direct or contingent of any Borrower, Mortgagor, assignee, maker, endorser or guarantor hereOf to Mortgagee shall become due and payable immediately without notice or demand. 17. Acceleration, Foreclosure and Sale; Deficiency. Upon the occurrence of any Event of Default, Mortgagee hereunder may at any time thereafter, at its opinion, by notice to Mortgagor, declare the entire amount secured hereby and the interest accrued thereon to be due and payable forthwith without any further notice, presentment or demand of any kind, all of whi ch are hereby expressly waived. If the amounts secured hereby are not paid when due, whether by acceleration' or otherwise, it shall be lawful for Mortgagee to proceed to enforce the provisions of this Mortgage, either by suit at law or in equity, as it may elect, or to foreclose this Mortgage by advertisement and sale of the Property at public venue, for cash, according to Wyoming statutes governing mortgage foreclosures, and cause to be executed and delivered to the purchaser or purchasers at any such sale a good and sufficient deed or deeds of conveyance of the property so sold and to apply the proceeds arising fi'om such sale, first to the payment of all costs and expenses incurred by Mortgagee in connection therewith, including, without limitation, court costs, legal fees and expenses, fees of accountants, engineers, consultants, agents or managers and expenses of any entry or taking or possession, holding, valuing, preparing for sale, advertising, selling and conveying; second, to the payment of the amounts secured hereby; and third, any surplus thereafter remaining to Mortgagor or Mortgagor's successors or assigns, as their interests may be established to Mortgagee's reasonable satisfaction. There shall be included in any or all such foreclosure proceedings, a reasonable attorney's fee as part of the Indebtedness. In case Mortgagee shall fail promptly to foreclose upon the occurrence of any event of default, Mortgagee shall not thereby be prejudiced in its right of foreclosure at any time thereafter during which such default shall continue and Mortgagee shall not be prejudiced in its foreclosure rights in the case of further default or defaults. James H. Blittersdorf and Juline Christofferson will remain liable for any deficiency owing to Mortgagee after application of the net proceeds of any foreclosure sale. 18. Possession of the Property, Appointment of a Receiver. In the case of any default or breach under the terms and covenants of this Mortgage, Mortgagee shall at once become entitled to the possession, use and enjoyment of the Property above-described and to all rents, revenue, income, issues and profits therefrom, from the date of the accruing of such right and continuing during the pendency of foreclosure proceedings including any period of redemption. Such possession shall be at once delivered to Mortgagee or the holder of the certificate of purchase upon request. Upon refusal, the delivery of such possession may be enforced by Mortgagee by an appropriate civil suit or proceeding. In the event Mortgagor has leased or rented the Property to a tenant, Mortgagee shall be entitled to appointment of a receiver fo? said Property to receive the rents, revenue, income, issues and profits therefrom from and after any such default, including the time covered by foreclosure proceedings, as a matter of right without regard to the solvency or insolvency of Mortgagor or of the then owner of said Property and without regard to the value of the Property. Such receiver may be appointed by any court of competent jurisdiction upon ex-parte application and without notice, notice being hereby expressly waived. All rents, issues, profits, income and revenue from said Property shall be applied by such receiver to the payment first of the fees and costs of such receivership proceeding and then to the Indebtedness. The balance remaining, if any, shall be disposed of in accordance with the orders and directions of the court. The fees of any such receiver, attorneys' fees incurred in appointment of the receiver and administration of the receivership estate and all costs, shall be due and payable upon demand and shall become additional Indebtedness. Failure to pay said fees and costs upon demand shall be a breach of the terms of this Mortgage. The rights of Mortgagee under this paragraph shall be in addition to and not in lieu of any rights existing by virtue of a separate assignment of leases, rents or profits. 19. Waiver. and Release. Mortgagor hereby irrevocably and unconditionally waives and releases, to the extent waiver and release are permitted by law; (a) all benefits that might accrue to Mortgagor by virtue of any present or future law exempting the subject property from attaclunent, levy or sale on execution or providing for any appraisement, valuation, stay of execution, exemption from civil process or extension of time for payment; and (b) any right to a marshalling of assets or a sale in inverse order of alienation. G:\judy~[I. OCKY MOUNTAIN MORTGAGE,doe 6 20. Mortgagor Not Released· Extension of the time for payment, modification of amortization of the sums secured hereby, a change in interest rate, or any other change in the terms of the Instruments secured hereby or this Mortgage, including an assumption hereof, granted by Mortgagee to any successor-in-interest of Mortgagor shall nOt operate to release, in any manner, the liability of Mortgagor; nor MortgagOr's successors-in-interest, from the original terms of this Mortgage. 21. Time of the Essence. Time is of the essence in this Mortgage and in the event · Mortgagor or Mortgagor's heirs, successors or assigns, fails to pay Mortgagee any and all stuns due under the terms of the Instruments and this Mortgage, or fails to observe and perform any of the covenants and agreements contained in said Instruments or this Mortgage, Mortgagee may, at its oPtion, declare any and all indebtedness owing thereunder due and payable, and any tax assessments, insurance premiums, or other advances made or paid by said Mortgagee and not repaid by Mortgagor shall become an additional indebtedness hereunder and secured .by this Mortgage. 22. Mortgagee's Expenses. Mortgagor agrees to pay in full all expenses and reasonable attorneys' fees of Mortgagee which may have been or may be incurred by Mortgagee in connection with the collection of the Indebtedness secured hereby and the enforcement of any of Mortgagor's obligations hereunder and under the Instruments secured hereby. Mortgagor shall indemnify Mortgagee and hold it harmless against, and Mortgagee shall not be liable for, any loss, cost or damage, including without limitation, attorneys', consultants' or management fees, resulting from exercise by Mortgagee or any right, power or remedy conferred upon it by this instrument or any other instrument pertaining hereto, or from the attempt or failure of Mortgagee to exercise any such right, power or remedy; and notwithstanding any provision hereof to the contrary, the foregoing indemnity shall in all respects continue and remain in full force and effect even though all indebtedness and other sums secured hereby may be fully paid and the lien of this instrument released. 23. Notices. Mortgagor hereby designates as its address for the purposes of receipt of any notice as provided in this Mortgage the address set out above; and agrees that such address shall be changed only by depositing written notice of such change in a post office or official depository under the. care and custody of the United States Postal Service, certified mail, postage prepaid, return receipt requested, addressed to Mortgagee at the address for Mortgagee set out above (or to such other address as Mortgagee shall designate from time to time). Any notice provided for in this Mortgage shall be deemed to have been given, and received, when given as provided in this paragraph. 24. Successors Bound; Terms; Captions. The covenants herein contained shall bind, and the benefits and advantages hereof shall inure to, the respective heirs, executor_s, administrators, successors and assigns of the parties hereto. Whenever used herein, the singular number shall include the plural and conversely, and the use of any gender shall be applicable to all genders. Assigmnent or negotiation of the Instruments secured hereby shall also be an assignment of Mortgagee's interest under this Mortgage. The captions and headings of this Mortgage are for convenience only and are not to be used to interpret or define the terms of this document. 25. Severability. In the event that any provision or clause of this Mortgage conflicts with applicable law, such conflicts shall not affect or invalidate other provisions of this Mortgage which can be given effect without the conflicting provision. To this end, the provisions of this Mortgage are declared to be severable. 26. Choice of Law and Venue. THE VALIDITY OF THIS MORTGAGE, ITS CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT AND THE RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF WYOMING. THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS MORTGAGE SHALL BE TRIED AND LITIGATED ONLY IN THE STATE COURTS LOCATED IN THE COUNTY OF LINCOLN, STATE OF WYOMING, THE FEDERAL COURTS WHOSE VENUE INCLUDES THE COUNTY OF LINCOLN, STATE OF WYOMING, OR, AT THE SOLE G:\judyXR. OCKY MOUNTAIN MORTGAGE.doc 7 OPTION OF MORTGAGEE, IN ANY OTHER COURT IN WHICH MORTGAGEE SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. THE PARTIES EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN ANY SUCH COURT, AND THE PARTIES HEREBY WAIVE ANY OBJECTION WHICH' EITHER MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION AND HEREBY CONSENT TO .THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BYANY SUCH COURT. FURTHERMORE, MORTGAGOR AND MORTGAGEE EACH WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF "FORUM NON CONVENIENS" OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS PARAGRAPH. 27. ..Approval of Leases. At Mortgagee's request, Mortgagor shall furnish to Mortgagee copies of all leases or instruments of extension, renewal, modification or termination of said leases now existing or hereinafter executed which cover any portion of the Property. 28. WaiVer of Homestead. Mortgagor hereby fiflly and absolutely releases, waives and/or subordinates all rights and interest he may have or acquire in and to the Property under the Homestead Exemption Laws of the State of Wyoming or by virtue of any similar federal, state or local law. 29. Joint and Several. Rocky Mountain Rogues, Inc., James H. Blittersdorf and Juline Christofferson shall be jointly and severally liable for all Mortgagor's representations, warranties, covenants, and other obligations described in this .Mortgage. 30. WAIVER OF TRIAL BY JURY. THE PARTIES HERETO, AND EACH OF THEM, TO THE FULLEST EXTENT THEY MAY LEGALLY DO SO, HEREBY KNOWINGLY, EXPRESSLY, AND VOLUNTARILY WAIVE AND RELINQUISH ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS MORTGAGE, OR IN ANY WAY CONNECTED WITH, OR RELATED TO, OR INCIDENTAL TO, THE DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS MORTGAGE OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF .. WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE FULLEST EXTENT THEY MAY LEGALLY DO SO, SUCH PARTIES HEREBY AGREE THAT ANY SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY. G:\judyLROCKY MOUNTAIN MORTGAGE.doc 8 IN WITNESS WHEREOF, Mortgagor has executed this Wyoming Mortgage and Security Agreement the day and year first above written.' R~y Mountain l~o~es, Inc. ._~H. Blittersdorf, ..President ~i~fne Christoffers'on ~/ ACKNOWLEDGEMENTS STATE OF WYOMING ) LN/ ) ss. COUNTY OF ~__J iVF~O ) On this o,~9~ day of February, 2004, before me, the undersigned, a Notary Public in and for the State of Wyoming, duly conmfissioned and sworn, personally appeared Jalnes H. Blittersdorf and Juline Christofferson to me known to be the President and Secretary respectfully of Rocky Mountain Rogues, Inc., a Wyoming corporation the corporation that executed the foregoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that they are authorized to execute the said instrument for said corporation. Witness my hand and official seal hereto a/ffi/~ed the d~..,y..,a/n~ year fi/l~t above written. Notary / i' ~ ~ ~ [ My commission expires: AFTER RECORDING RETURN TO: Olympic Coast Investment, Inc. g01 2"d Avenue, Suite 315 Seattle, WA 98104 Loan No. 24016 G:\judyXROCKY MOUNTAIN MORTGAGE.doc 9 EXHIBIT A Legal Description Part of Lot 601C, Lakeview Estates Incorporated, Tracts A-F, Lincoln County, Wyoming more particularly described as follows: Beginning at a point which is S29°05'W, 772.00 feet from the Northwest corner of SE1/4, Section 29, T37N, Rll8W of the 6th P.M., Lincoln County, Wyoming and running thence S63°W, 205.00 feet; thence N27Ow, 211.3 feet to right of way of U.S. Highway 89; thence northeast along right of way U.S. Highway 89 around curve thereof to a point which is N27°W, 231.6 feet from beginning point: thence N27°E, 231.6 feet to the point of beginning. G:\judyLROCKY MOUNTAIN MORTGAGE.doc A~I