Loading...
HomeMy WebLinkAbout89933330525 RECORDATION REQUESTED BY: The Jackson Slate Bank & Trusl West Office P.O. Box 1788 5O Buffalo Way Jackson, WY 83001 WHEN RECORDED MAIL '¢O: The Jackson State Bank & Trust Wesl Office P.O. Box 1788 50 Buffalo Way Jackson, WY 83001 SEND TAX NOTICES TO: The Jackson State Bank & Trusl Wesl Office P.O. Box 1788 5O Buffalo Way JaCkson, WY 83001 899333 RECEIVED LINCOLr',! COUNTY CLERK SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY CONSTRUCTION MORTGAGE MAXIMUM LIEN. The lien of this Mortgage shall not exceed at any one time $182,500.00. THIS MORTGAGE dated May 3, 2004, is made and executed between TD Alpine LLC, a Wyoming Limited Liability Company, whose address is RR 4 Box 132A, Hollidaysburg, PA 16648 (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 consideralion Granlor mortgages and conveys Io Lender all ol Grantor's right, title, and interest in and to the following described real property, together with all existing or subsequenlly erecled or affixed buildings, improvements and fixtures; all easements, righls of way, and appurtenances; all water, waler rights, watercourses and ditch rights (including stock in ulilities wilh ditch or irrigalion rights); and all other rights, royalties and profits relating lo the real property, including without limitalion all minerals, oil, gas, geolhermal and similar mailers, (the "Real Property") located in Teton County, State of Wyoming: Lot 65, Riverview Meadows' Eecond Addition to the Town of Alpine, Lincoln CoUnty, Wyoming within the SE1/4 of Section 30, T37N, R1'!8 W, according to that plat filed February 11, 1994, Plat No. 264-D, Instrument No. 778568. The Real Property or its address is commonly known as 704 Palisades Lane, Alpine, WY 83128. Granlor presently assigns Io Lender all of Grantor's righl, lille, and inleresl in and 1o all present and future leases ct the Properly and all Rents from the Property. In addition, Grantor grants to Lender a Uniform Commercial Code security inlerest in the Personal Properly and Rents. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT OF THE INDEBTEDNESS AND {B) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THE NOTE, THE RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: PAYMENT AND PERFORMANCE. Excepl as olherwise provided in' Ibis Mortgage, Grantor shall pay to Lender all amounls secured by Ihis Morlgage as they become due and shall striclly perform all of Granlor's obligations under Ihis Morlgage CONSTRUCTION MORTGAGE. This Morlgage is a "conslructi'on mortgage" for the purposes of Seclions 9-334 and 2A-309 of the Uniform Commercial Code, as lhose sections have been adopied by lhe Stale of Wyoming. POSSESSION AND MAINTENANCE OF THE PROPERTY. Grantor agrees thai Granlor's possession and useof the Properly shall be governed by the following provisions: Possession a~d Use. Until the occurrence of an Event of Defaull, Grantor may (1) remain in possession and control of lhe Property; (2) use, operale or manage lhe Property; and (3) collecl the Ranis from lhe Properly. ! Duty !o Maintain. Grantor shall.maintain the Properly in lenanlable condition and p~omptly perform all repairs, replacements, and maintenance necessary to preserve its value. Compliance Wilh Environmenlal Laws. Granlor represenls and warranls Io Lender that: (1) During the period of Grantor's ownership of lhe Property, lhere has been no use, generation, manufaclure, slorage, treatment, disposal, release or threalened release of any Hazardous Substance by any person on, under, about or from the Properly; (2) Granlor hasno knowledge of, or reason Io believe thai there has been, except as previously disclosed to and acknowledged by Lender in writing, (a) any breach or violalion of any Environmental Laws, (b) any use, generation, manufacture, slorage, lrealmenl,,disposal, release or threatened release of any Hazardous Substance on, under, about or from the Properly by any prior owners or occupants ct Ihe Properly, or (c) any actual or threatened liligation or claims of any kind by any person relating 1o such mailers; and (3) Except as previously disclosed lo and acknowledged by Lender in writing; (a) neither Grantor nor any tenant, conlractor, agenl or other authorized user of lhe Property shall use, generale, manufacture, slore, Ireat, dispose of or release any Hazardous Substance on, under, about or from the Property; and (b) any such aclivily shall be conducted in compliance with all applicable federal, state, and local laws, regulalions and ordinances, including wilhoul limitation all Environmental Laws. Grantor authorizes Lender and ils agenls 1o enler upon the Property to make such inspections and lesls, at Granlor's expense, as Lender may deem appropriate Io determine compliance of the Property wilh this section of the Mortgage. Any inspections or lests made by Lender shall be for Lender's purposes only and shall not be conslrued to create any responsibility or liabilily on lhe part of Lender to Granlor or Io any olher person. The represenlations and warranlies contained herein are based on Granlor's due diligence in invesligaling the Properly for Hazardous Substances. Grantor hereby (1) releases and waives any future claims against Lender~ for indemnity or conlribulion in Ihe event Grantor becomes liable lot cleanup or olher costs under any such laws; and (2) agrees to indemnify and hold harmless Lender against any and all claims, losses, liabilities, damages, penallies, and expenses which Lender may direclly or indireclly sustain or suffer resulling from a breach of this seclion of the Morlgage or as a consequence of any use, generation, manufacture, slorage, disposal, release or threatened release occurring prior to Granlor's ownership or interesl in Ihe Property, whelher or nol lhe same was or should have been known lo Grantor. The provisions o! this seclion of lhe Mortgage, including lhe obligation to indemnify, shall survive the payment of the Indebtedness and the satisfaction and reconveyance ct the lien of Ibis Mortgage and shall not be affected by Lender's acquisition of any interest in the Properly, whether by toreclosure or olherwise. Nuisance, Waste. Grantor shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any stripping of or wasle on or to lhe Properly or any portion of lhe Property. Without limiling Ihe generality of the foregoing, Grantor will not remove, or grant to any other party Ihe . righl to remove, any limber, minerals (including oil and gas), coal, clay, scoria, soil, gravel or rock producls withoul Lender's prior written consenl. Removal of Improvements. Grantor shall nol demolish or remove any Improvements from the Real Property without Lender's prior written consenL As a condilion lo the removal of any Improvements, Lender may require Granlor Io make arrangements salisfaclory lo Lender Io replace such Improvements with Improvements of al least equal value. Lender's Righl to Enter. Lender and Lender's agents and representatives may enter upon the Real Property al all reasonable limes to allend to Lender's interests and to inspecl lhe Real Property for purposes of Granlor's compliance wilh lhe terms and conditions ol this Morlgage. Compliance with Governmenlal Requiremenls. Grantor shall promptly comply with all laws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable to the use or occupancy of the Properly, including withoul limitation, the Americans Wilh' Disabililies Act. Grantor may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Grantor has nolified Lender in writing prior Io doing so and so long as, in Lender's sole opinion, Lender's inleresls in the Properly are not jeopardized. Lender may require Grantor Io posl adequate securily or a surety bond, reasonably salisfactory Io Lender, to protect Lender's interesl. Loan No: 33050451 MORTGAGE O~J,CJ~333 ....; :,,, 45 o (Continued) Page 2 Duty to Protect. Grantor agrees neilher to abandon or leave unaltended Ihe Property. Grantor shall do all other acls, in addilion 1o lhose acts sol forlh above in Ibis seclion, which from Ihe character and use of Ihe Property are reasonably necessary to protecl and preserve the Propedy~ CONSTRUCTION LOAN. If some or all of lheproceeds Of the loan creating the Indebledness are 1o be used 1o construct or complele construction of any Improvements on lhe Property, the ImproVements shall be compleled no later Ihan Ihe malurity date of the Note (or such earlier date as Lender may reasonably eslablish) and Grantor shall pay in full all costs and expenses in connection with the work. Lender will disburse loan proceeds under such terms and conditions as Lender may deem reasonably necessary Io insure lhal the inleresl created by lhis Morlgage shall have priority over all possible liens, including lhose of malerial suppliers and workmen. Lender may require, among other things, lhal disbursemenl requesls be supported by receipted bills, expense atlidavits, waivers of liens, conslruclion progress reporls, and such other documenlalion as Lender may reasonably request. DUE ON SALE - CONSENT BY LENDER. Lender may, al Lender's option, declare immedialely due and payable all sums secured by this Morlgage upon Ihe sale or transler, wilhout Lender's prior writlen consenl, ol all or any pad ot Ihe Real Properly, or any inleresl in the Real Properly. A "sale or transfer" means the conveyance of Real Property or any right, title or interesl in the Real Properly; whelher legal, beneficial or equilable; whelher voluntary or involuntary; whether by outright sale' deed, Installmenl sale conlracl, land contract, conlract for deed, leasehold interest wilh a lerm greater Ihan three (3)years, lease-option contracl, or !by sale, assignment, or Iransfer o! any beneficial inlerest in or to any land trust holding lille to Ihe Real Property, or by any olher method of conveyance of an interesl in the Real Property. It any Granlor is a corporation, partnership or limited liability company, transfer also includes any change i0 ownership ol more than lwenly-five percenl (25%) of the voling stock, partnership interests or limited liability company interesls, as lhe case may be, of such Granlor. However, this option shall nol be exercised by Lender if such exercise is prohibited by federal law or by Wyoming law. ' TAXES AND LIENS. The following provisions relating 1o Ihe taxes and liens on the Properly are pad ot this Mortgage: Payment. Grantor shall pay when due (and in all events prior to delinquency) all taxes, payroll taxes, special taxes, assessments, waler charges and sewer service charges levied against or on account of the Property, and shall pay when due all claims for work done on or for services rendered or material furnished to Ihe Property. Granlor shall mainlain the Properly free of any liens having priorily over or equal 1o the interest of Lender under this Mortgage, except for those liens specifically agreed to in writing by Lender, and except for lhe lien of taxes and assessmenls not due as furlher specified in lhe Righl 1o Contest paragraph. Right !o Contesl. Grantor may withholdlpaymenl of any tax, assessment, or claim in conneclion with a good faith dispute over Ihe obligation Io pay, so long as Lender's interest in the Property is not jeopardized. If a lien arises or is tiled as a resull ol nonpayment, Grantor shall within fifteen (15) days after. Ihe lien arises or, il a lien's t ed, within fifteen (15) days after Grantor has nolice of the liling, secure Ihe discharge of the lien, or il requested by Lender, deposil with Lender cash or a sufficienl corporale surely bond or other securily satisfaclory to Lender in an amounl sufficient to discharge the lien plus any costs and reasonable altorneys' fees, or other charges Ihat could accrue as a result of a foreclosure or sale under the lien. In any contesl, Grantor shall .de.~ehd itselt and Lender and shall satisfy any adverse judgment before entorcement against the Properly. Grantor shall name Lender as an addilionAI obligee under any surety bond lurnished'in the contest proceedings. Evidence of Payment. Grantor shall upon demand furnish Io Lender salisfaclory evidence of paymenl of the taxes or assessmenls and shall aulhorize the appropriate governmenlal official to deliver Io Lender at any time a written statement ot the taxes and assessments against the Properly. Nolice of Conslruction. Granlor shall holily Lender at least fifteen (15) days belore any work is commenced, any services are furnished, or any materials are supplied to lhe Property, if any mechanic's lien, materialmen's lien, or other lien could be asserted on accounl of the work, services, or materials. Grantor will upon request ol Lender furnish to Lender advance assurances salisfactory to Lender Ihal Granlor can and will pay the cosl of such improvements. PROPERTY DAMAGE INSURANCE. The folio,wing provisions relaling to insuring Ihe Properly are a pad of Ihis Mortgage: Maintenance of Insurance. Grantor sh~Jl procure and maintain policies of fire insurance with standard exlended coverage endorsemenls on a replacement basis for the full insurable value covering all Improvements on the Real Property in an amounl sufficient to avoid application of any coinsurance clause, and with a standard.mortgagee clause in favor of Lender. Grantor shall also procure and maintain comprehensive general liabilily insurance in such coverage amounts as Lender may request with Lender being named as addilional insureds in such liability insurance policies. Additionally, Grantor shall mainlain such other insurance, including bul nol limiled lo hazard, business interruption and boiler insurance as Lender may require. Policies shall be wrillen by such insurance companies and in such form as may be reasonably acceptable to Lender. Grantor shall deliver 1o Lender certificates of coverage from each insurer containing a slipulation that coverage will not be cancelled or diminished wilhoul a minimum of ten (10) days' prior written notice fo Lender and not containing any disclaimer ot the insurer's liabilily for failure to give such notice. Each insurance policy also shall include an endorsement providing thai coverage in lavor o! Lender will not be impaired in any way by any act, omission or defaull ol Gran{or or any other person. Should Ihe Real Properly be Iocaled in an area designated by the Director of the Federal Emergency Management Agency as a special flood hazard area, Grantor agrees Io obtain and maintain Federal Flood Insurance, if available, wilhin 45 days after notice is given by Lender thai lhe Property is located in a special flood hazard area, for lhe lull unpaid principal balance of the loan and any prior liens on Ihe property securing the loan, up to the maximum policy limits sol under the National Flood Insurance Program, or as olherwise required by Lender, and to maintain such insurance for Ihe lerm of Ihe loan. Application of Proceeds. Grantor shall promptly notify Lender of any loss or damage 1o the Properly Lender may make proof of loss if Grantor fails lo do so within fifteen (15) days of the casually. Whether or nol Lender's security is impaired, Lender may, al Lender's election, receive and retain the proceeds of any insurance and apply the proceeds to the reduclion o! the Indebledness, paymenl ol any lien atfecling the Property, or the restoration and repair of the Property. If Lender elects Io apply the proceeds Io resloration and repair, Granlor shall repair or replace the damaged or destroyed Improvements in a manner satisfactory to Lender. Lender shall, upon salisfactory prool of such expenditure, pay or reimburse Grantor from lhe proceeds for lhe reasonable cost of repair or restoralion il Granlor is not in default under this Mortgage. Any proceeds which have nol been disbursed wilhin 180 days after lheir receipt and which Lender has nol commilted to lhe repair or resloralion of the Property shall be used first to pay any amount oWing to Lender under this Mortgage, then to pay accrued interest, and lhe remainder, if any, shall be applied to the principal balance of Ihe InCebtedness. If Lender holds any proceeds al/er payment in full ot the Indebtedness, such proceeds shall be paid lo Granlor as Granlor's inleresls may appear. Grantor's Reporl on Insurance. Upon request of Lender, however nol more than once a year, Grantor shall furnish 1o Lender a report on each existing policy of insurance showing: (1) the name of the insurer; (2) the risks insured; (3) the amounl of lhe policy; (4) the property insured, Ihe then currenl replacement value of such property, and the manner ol determining Ihal value; and (5) the expiration date of the policy. Grantor shall, upon request of Lender, have an independenl appraiser salisfactory to Lender determine the cash value replacement cost of the Property. LENDER'S EXPENDITURES. If any aclion or proceeding is commenced lhal would malerially affect Lender's interest in lhe Property or if Grantor fails Io comply with any provision o! this Mortgage or any Related Documents, including but nol limiled to Grantor's failure 1o discharge or pay when due any amounts Grantor is required Io discharge or pay under lhis Mortgage or any Related Documents, Lender on Granlor's behall may (but shall not be obligated 1o) take any action that Lender deems appropriate, including but nol limited to discharging or paying all taxes, liens, security inleresls, encumbrances and other claims, at any time levied or placed on the Property and paying all costs for insuring, maintaining and preserving lhe Properly. All such expenditures incurred or paid by Lender for such purposes will Ihen bear interest at the tale charged under the Note from the date incurred or paid by Lender to lhe date of repayment by Grantor. All such expenses will become a part of the Indebledness and, at Lender's option, will (A) be payable on demand; (B) be added to the balance of the Nolo and be apporlioned among and be payable with any installment payments to become due during eilher (1) lhe lerm of any applicable insurance policy; or (2) the remaining lerm o! lhe Note; or (C) be trealed as a balloon paymenl which will be due and payable at the Note's malurily. The Morlgage also will secure paymenl ot Ihese amounts. Such right shall be in addition lo all olher rights and remedies to which Lender ma} be entitled upon Default. WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownersh p °l'the ~ "'~ ,_ .. ,. Property are a I~rt of this Mortgage: Title. Granlor warrants that: (a) Grantor holds good and markelable lille ol record Io the Property in fee simple, free and clear of all liens and encumbrances other than those set lorlh in the Real Property description or in any title insurance policy, lille report, or final lille opinion issued in lavor of, and accepled by, Lender in conneclion wilh this Mortgage, and (b) Grantor has the full right, power, and authority to execute and deliver Ibis Mortgage 1o Lender Defense of Title. Subject 1o the exception in the paragraph above, Grantor warrants and will forever defend the lille Io the Property againsl the ' lawful claims of all persons. In the event any action or proceeding is commenced thai queslions Gr. antor's lille or the interesl ol Lender under lhis Mortgage, Granlor shall defend lhe aclicn at Grantor's expense. Grantor may be Ihe nominal parly in such proceeding, bul Lender shall be enlilled to parlicipate in lhe proceeding and 1o be represenled in lhe proceeding by counsel of Lender's own choice, and Granlor will deliver, or cause 1o be delivered, 1o Lender such instruments as Lender may request from lime to time to permit such participation. Compliance Wilh Laws. Grantor warrants that the Property and Granlor's use ol lhe Property complies wilh all existing applicable laws, ordinances, and regulations of 'governmental authorities. Survival of Representations and Warranties. All representalions, Warranties, and agreements made by Grantor in this Mortgage shall survive Loan No: 33050451 MORTGAGE (Continued) .... Page 3 the execution and delivery of lhis Modgage, shall be continuing in nature, and shall remain in iull force and effecl until such time as Grantor's Indebtedness shall be paid in full. CONDEMNATION. The following provisions relating to condemnation proceedings are a pad ct this Morlgage: Proceedings. If any proceeding in condemnation is filed, Grantor shall promptly noilly Lender in writing, and Grantor shall promplly take such steps as may be necessary to defend the action and obtain the award. Granlor may be the nominal parly in such proceeding, but Lender shall be enlitled to participate in the proceeding and 1o be represenled in the proceeding by counsel of its own choice, and Grantor will deliver or cause to be delivered to Lender such instruments 'and documentation as may be requested by Lender from lime to time to permit such participation. Application of Nel 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 i!s eleclion require thai all or any portion of the net proceeds of the award be applied Io lhe Indebtedness or the repair or restoration of the Property. The riel proceeds of the award shall mean the award afler paymenl of all reasonable costs, expenses, .and attorneys' fees incurred by Lender in connection with the condemnation. IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating Io governmental taxes, fees and charges are a part of this Mortgage: Current Taxes, Fees and Charges. Upon request by Lender, Grantor shall execule such documenls in addition to this Mortgage and take whatever other aclion is requesled by Lender to pertecl and conlinue Lender's lien on Ihe Real Properly. Grantor shall reimburse Lender for all loxes, as described below, togelher withal expenses incurred in recording, perfecting or continuing this Mortgage, including withoul limilalion all taxes, fees, documentary stamps, and other charges for recording or registering this Mortgage. Taxes. The following shall constitule taxes to which lhis section applies: (1) a specific tax upon this type of Mortgage or upon all or any pad of the Indebtedness secured by Ibis Mortgage; (2) a specific tax on Grantor which Grantor is authorized or required to deduct from payments on the Indebtedness secured by lhis type of Mortgage; (3) a tax on Ihis type ol Mortgage chargeable against the Lender or the holder of lhe Note; and (4) a specific tax on all or any portion of the Indebtedness or on paymenls of principal and interest made by Granlor. Subsequenl Taxes. If any tax to which this section applies is enacted subsequent to /he date of this M0rtgage, this event shall have the same effect as an Event of Default, and Lender. may exercise any or all of it5 available remedies for an Event of Default as provided below unless Granlor eilher (1) pays the lax before it becomes delinquent, or (2) conlesls Ihe lax as provided above in the Taxes and Liens section and deposits with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender. SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relaling to this Mortgage as a securily agreement are a part of this Mortgage: Securily Agreemenl. This ins{rument shall constitute a Securi{y Agreement Io Ihe exlenl any of Ihe Properly constitules fixtures, and Lender shall have all:of the rights of a secured party tinder Ihe Uniform Commercial Code as amended from time to lime. ' Security Interest. Upon requesl by Lender, Grantor shall take whalever action is requested by Lender to perfect and continue Lender's security interest in the Rents and Personal Prop'gdy. In addilion to recording Ihis Mortgage in the real property records, Lender may, a~ any time and withoul further aulhorization from Grantor, file executed counterparts, copies or reproduclions of this Mortgage as a financing slalement. Granlor shall reimburse Lender tor all expenses incurred in perfecting or continuing this securily inlerest. Upon detaull, Granlor shall not remove, sever or delach Ihe Personal Property from the Properly. Upon detaull, Grantor shall assemble any Personal Property nol affixed to the Properly in a manner and at a place reasonably convenienl Io Grantor and Lender and make il available to Lender wilhin lhree (3) days after receipt of wrillen demand from Lender to the exlent permi(ted by applicable law. Addresses. The mailing addresses of Grantor (debtor) and Lender'(secured party) from which information concerning the securily interest granted by this Morlgage may be Obtained (each as required by the Unilorm Commercial Code) are as slated on Ihe firsl page of this Mortgage. FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating to further assurances and altorney-in-facl are a pad of this Mortgage: Further AssuranCes. At any time, and lrom time to time, upon requesl of Lender, Grantor will make, execute and deliver, or will cause Io be made, executed or delivered, to Lender or Io Lender's designee, and when requesled by Lender, cause to be f ed, recorded refiled or rerecorded, as lhe case may be, at such times and in such offices and places as Lender may deem appropriate, any and all such'morlga~es, deeds ol trust, security deeds, security agreements, financing statemenls, conlinuation stalemenls, inslrumenls of.furlher assurance, cedificales, and olher documents as may, in lhe sole opinion of Lender, be necessary or desirable in order to elfecluale, complele, perfect, continue, or preserve (1) Granlor's obligations under the Nole, this Morlgage, and Ihe Related Documents, and (2) the liens and securily interesls created by this Morlgage as first and prior liens on the Property, whether now owned or hereafter acquired by Granlor. Unless prohibited by law or Lender agrees to the contrary in writing, Grantor shall reimburse Lender tor all costs and expenses incurred in connection with the mailers referred lo in this paragraph. Attorney-in-Fact. II Grantor fails to 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 appoints Lender as Granlor's attorney-in-facl for lhe purpose of making, execuling, delivering, filing, recording, and doing all other things as may be necessary or desirable, in Lender's sole opinion, Io accomplish the matters referred to in Ihe preceding paragraph. FULL PERFORMANCE. If Grantor pays all the Indebtedness when due, and otherwise performs all the obligalions imposed upon Granlor under this Morlgage, Lender shall execute and deliver to Grantor a suitable satisfaction of this Morlgage and suilable slalemenls ol termination of any financing stalement on file evidencing Lender's security interest in the Rents and the Personal Properly. Granlor will pay, if permitted by applicable law, any reasonable termination fee as delermined by Lender from time lo time. EVENTS OF DEFAULT. Each of the followinc~, at Lender's option, shall constilule an Event of Defaull under this Mortgage: Paymenl Default. Grantor fails to make any payment when due under the Indebtedness. Default on Other Payments. Failure of Grantor within Ihe time required by this Morlgage Io make any payment for laxes or Insurance, or any other payment necessary to prevent filing of or lo effecl discharge of any lien. Other Defaults. Grantor fails to comply with or lo perform any other term, obligation, covenanl or condition contained in this Mortgage or in any of /he Related 'Documents or Io comply with or 10 perform any term, obligation, covenanl or condition contained in any other agreement between Lender and Grantor. ' Default In Favor of Third Parties. Shodld Grantor default under any loan, extension of credil, securily agreement, purchase or sales agreemenl, or any other agreement, in favor of any olher credilor or person that may materially affecl any of Grantor's property or Grantor's ability to repay the Indebtedness or Grantor's ability to perform Granlor's obligations under Ihis Modgage or any related document. False Statements. Any warranty, representation or statemenl made or furnished to Lender by Grantor or on Granlor's behalf under lhis Mortgage or the Related Documents is false or misleading in any material respect, eilher now or al the lime made or furnished or becomes false or misleading at any time lherealler. Defective Collaterallzation. This Modgage or any of the Related Documenls ceases to be in full force and effect (including failure of any collaleral document to creale a valid and perfected securily inlerest or lien) al any time and for any reason. Dealh or Insolvency. The dissolution o.f Grantor's (regardless ol whelher eleclion to continue is made), any member wilhdraws from Ihe limiled liability company, or any other lerminatio'n of Grantor's existence as a going business or lhe death of any member, the insolvency of Granlor, Ihe appointmenl of a receiver for any pad ct Granlor's property, any assignment for the benefil of creditors, any type of creditor workout, or Ihe commencement of any proceeding under any bankruptcy or insolvency laws by or againsl Grantor. Credllor or Forfeilure Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Grantor or by any governmenlal agency against any property securing the Indebledness. This includes a garnishmen{ of any of Grantor's accounls, including deposit accounls, with Lender. However, this Event of Detault shall nol apply if there is a good faith dispute by Grantor as to the validity or reasonableness of the claim which is lhe basis of the creditor or forfeilure proceeding and if Grantor gives Lender written notice of lhe creditor or forfeiture proceeding and deposits wtlh Lender monies or a surely bond for the creditor or forfeiture proceeding, in an amounl de~termined by Lender, in ils sole discrelion, as being an adequale reserve or bond for Ihe dispute. Breach of Other Agreement. Any breach by Grantor under the terms of any other agreement belween Grantor and Lender thai is nol remedied within any grace period provided therein~ includ ng without limilation any agreemenl concerning any indebtedness or olher obligalion of Granlor Lender, _whether existing now or later. Loan No: 33050451 MORTGAGE (Continued) Page 4 Events Affecting Guarantor. Any of the oreceding events occurs with respecl lo any Guarantor of any of the Indebtedness or any Guarantor dies or becomes incompetenl, or revokes or disputes lhe validity of, or liability under, any Guaranty of the Indebledness. In the event of a dealh, Lender, al its oplion, may, but shall not be required 1o, permit the Guaranlor's estale Io assume.unconditionally the obligations arising under the guaranty in a manner salisfactory Io Lender, and, in doing so, cure any Evenl of Defaull. Adverse Change. A material adverse change occurs in Granlor's financial condition, or Lender believes the prospect of payment or performance of ~he Indebtedness is impaired. Right Io Cure. If such a failure is curable and if Grantor has not been given a nolice of a breach of lhe same provision of INs Morlgage wilhin lhe preceding twelve (12) months, Jt may be cured (and no Evenl of Default will have occurred) if Grantor, aller Lender sends written nolice demanding cure of such failure: (a) cures the failure wilhin fifleen (15) days; or (b)if lhe cure requires more than fifteen (15) days, immedialely iniliales steps sufficient 1o cure the failure and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably praclical. RIGHTS AND REMEDIES ON DEFAULT. Upon :lhe occurrence of an Event of Defaull and at any time thereafter, Lender, al Lender's option,-may exercise any one or more ot the following righl~ and remedies, In addition to any other rights or remedies provided by law: Accelerale Indebledness. Lender shall'~ave the right al its option without nolice lo Grantor to declare the entire Indebledness immediately due and payable, including any prepayment penalty which Grantor would be required to pay. ' ~ -. UCC Remedies; With respect to all or any pad of the Personal Property, Lender shall have all the rights and remedies of a secured parly under lhe Uniform Commercial Code. Collect Renls. Lender shall have lhe right, without nolice to Grantor, lo 'lake possession ot lhe Properly, including during the pendency ot foreclosure, whether judicial or non-judicial, and collect the Rents, including amounls pasl due and unpaid, and apply the net proceeds, over and above Lender's cosls, against lhe indebtedness. In furtherance of lhis righl, Lender may require any lenant or other user of the Property to make paymenls of rent or use fees directly to Lender. If the Renls are collected by Lender, then Grantor irrevocably designales Lender as Grantor's altorney-in-fact 1o endorse inslruments received in payment thereof in Ihe name ol Granlor and to negotiate the same and collect the proceeds. Paymenls by tenants or olher users lo Lender in response 1o Lender's demand shall satisfy the obligalions tor which Ihe payments are made, whether or not any proper grounds for the demand existed Lender may exercise its rights under this subparagraph either in person, by agent, or lhrough a receiver. Appoint Receiver. Lender shall have lh~'iight to have a receiver appointed Io take possession ol all or any pad ol the Property, wilh the power to protect and preserve the Properly, to operate the Properly preceding foreclosure or sale, and to collecl the Rents from lhe Property and apply the proceeds, over and above lhe cost of the receivership, against lhe indebtedness. The receiver may serve without bond if permitted by law. Lender's righl to the appoinlment ora receiver shall exisl whether or not Ihe apparenl value of the Properly exceeds the indebtedness by a substantial amount. Employment by Lender shall nol disqualify a person from 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 Granlor's interest in all or in any part of the Properly by non-judicial sale, and specifically by "power of sale" or "adverlisement and sale" foreclosure as provided by slalute. Deficiency Judgment. If permitted by applicable law, Lender may obtain a judgment for any deficiency remaining in the Indebtedness due Io Lender after application ol all amounts received from the exercise of the rights provided in this seclion. Tenancy al Sufferance. If Granlor remains in possession of lhe Property afler the Property is sold as provided above or Lender olherwise becomes entitled to possession of the Property upon detault of Grantor, Granlor shall become a lenanl at sufferance of Lender or the purchaser of the Property and shall, at Lender's oplion, eilher (1) pay a reasonable rental for lhe use of Ihe Property, Or (2) vacate Ihe Property immediately upon the demand of Lender.: Other Remedies. Lender shall have all other rights and remedies provided in this Mortgage or Ihe Note or available at law or in equity. Sale of. lhe Property. To the exlent permilted by applicable law, Grantor hereby waives any and all right to have the Property marshalled. In exercising its rights and remedies, Lender shall be free 1o sell all or any part ol Ihe Property togelher or separalely, in one sale or by separale sales. Lender shall be entitled lo bid at any public sale on all or any porlion ol the Properly. Notice of Sale. Lender shall give Granlor reasonable notice of the time and place ol any public sale of lhe Personal Properly or of lhe lime atler which any privale sale or olher intended disposilion of the Personal Property is lo be made. Reasonable notice shall mean notice given al leasl len (10) days betore the time of the sale or: disposition. Any sale of the Personal Properly may be made in conjunction with any sale of lhe Real Property. Election of Remedies. Election by Lender Io pursue any remedy shall not exclude pursuit ot any other remedy, and an election lo make expenditures or to take aclion to perform an obligation ol Granlor under this Mortgage, after Grantor's failure to perform, shall not affect Lender's right to declare a defaull and exercise its remedies, Nothing under this Morlgage or otherwise shall be construed so as to limit or restrict the righls and remedies available Io Lender following an Event of Defaull, or in any way Io limit or reslricl the 'rights and abilily of Lender to proceed directly against Grantor and/or against any other co-maker, guaranlor, surety or endorser and/or to proceed against any other collateral direclly or indireclly securing the Indebledness. Attorneys' Fees; Expenses. If Lender in'slitules any suit or' action 1o enforce any of Ihe terms of this Mortgage, Lender shall be entilled to recover such sum as the courl may adjudge reasonable as attorneys' fees at trial and upon any appeal. Whether or nol any court aclion is involved, and Io the exlen/not prohibited by law, all reasonable expenses Lender incurs that in Lender's opinion are necessary at any time for the proleclion of ils interest or the enforcement of ils rights Shall become a part of lhe Indebtedness payable on demand and shall bear inlerest al Ihe Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph include, withoul limitation, however subject to any Iimils under applicable law, Lender's reasonable altorneys' fees and Lender's legal expenses whether or not lhere is a lawsuil, including reasonable attorneys' fees and expenses for bankruptcy proceedings (including efforls Io modily or vacale any aulomatic slay or injunction), appeals, and any anticipated post-judgment collection services, the cosl of searching records, oblaining tille reporls (including foreclosure reports), surveyors' reports, and appraisal fees and tille insurance, to the extent permitted by applicable law. Granlor also will pay any court costs, in addilion to all other sums 'provided by law. NOTICES. Any nolice required to be given under lhis Mortgage, including without limilation any notice of defaull and any notice of sale shall be given in wriling, and shall be effective when actually delivered, when actually received by lelefacsimile (unless olherwise required by law), when deposiled with a nalionally recognized overnight courier, or, if mailed, when deposiled in lhe United Stales mail, as firsl class, cerlified or regislered mail poslage prepaid, direcled 1o lhe addresses shown near the beginning of ins Morlgage. All copies ol nolices of foreclosure from Ihe holder of any lien which has priorily over this Mortgage shall be sent Io Lender's address, as shown near lhe beginning of lhis Mortgage. Any party may change its address for nolices under Ihis Mortgage by giving formal wrillen notice 1o the other parties, specifying lhal the purpose of Ihe nolice is Io change the party's address. For nolice purposes, Granlor agrees Io keep Lender informed at all times ot Grantor's current address. Unless otherwise provided or required by law, il there is more than one Gran;or, any nolice given by Lender to any Granlor is deemed Io be notice given to all Grantors. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a pad ol this Mortgage: Amendments. This Morlgage, logelher with any Relaled Documenls, conslitules lhe enlire underslanding and agreement of the parlies as 1o the mailers set forth in this Mortgage. No alteration of or amendment Io this Mortgage shall be effeclive unless given in writing and signed by lhe party or parlies soughl to be charged or bound by the alteralion or amendmenl. Annual Reports. If lhe Properly is used for purposes olher lhan Granlor's residence, Granlor shall furnish Io Lender, upon request, a certified slatemenl of net operating income received from lhe Properly during Grantor's previous tiscal year in such form and detail as Lender shall require. "Net operating income" shall mean all cash rece pis from Ihe Properly less all cash expenditures made in connection with the operalion of the Properly. Caplion Headings. Caption headings in this Morlgage are for convenience purposes only and are not to be used 1o inlerprel or define lhe provisions of lhis Mortgage.. Governing Law. This Mortgage will be governed by, construed and enforced in accordance with federal law and the laws of lhe State of Wyoming. This Morlgage has been acceptedby Lender in the Slale of Wyoming. Choice of Venue. If there is a lawsuit, Granlor agrees upon Lender's requesl 1o submil ~o lhe jurisdiclion 01 the courls of Telon County, Slate of Wyoming. ' No Waiver by Lender. Lender shall not be deemed 1o have waived any rights under lhis Morlgage unless such waiver is given in wriling and Loan No: 33050451 MORTGAGE (Continued) Page 5 signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other righl. A waiver by Lender of a provision of this Mbrtgage shall not prejudice or constitute a waiver et Lender's right olherwise to demand slrict compliance with that provision or any 01her provisior! of this Mortgage. No prior waiver by Lender, nor any course et dealing belween Lender and Grantor, shall constitute a waiver of any of Lender's rights or of any of Grantor"s obligations as to any fulure transactions. Whenever the consent of Lender is required under this Mortgage, Ihe grapting, of such consent by Lender in any inslance shall nol conslitute continuing consent Io subsequent instances where such consenl is required, and,in all cases such consenl may be granled or wilhheld in the sole discrelion of Lender. Severablllly. Il a courl of competent, jurisdiction finds any provision of this Mortgage Io be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as {o any olher circumslance. If feasible, lhe offending provision shall be considered modified so thai it becomes legal, valid and enforceable. If lhe Offending provision cannot be so modified, il shall be considered deleted from lhis Morlgage. Unless otherwise required by law, the illegality, invalidity, or unenlorceabilily of any provision of this Mortgage shall nol affecl lhe legality, Validity or enforceability of any other provision of lhis Mortgage. Merger. There shall be no merger of lhe int~resl or estate crealed by Ihis Morlgage with any other inlerest or estate in lhe Property al any time held by or for the benefit of Lender in any capacity, without the written consent of Lender. Successors and Assigns. Subjecl to any limilations staled in this Morlgage on Iransfer of Grantor's interest, Ihis Mortgage shall be binding upon and inure 1o lhe benefit of the parties, their successors and assigns. If ownership el the Properly becomes vested in a person other lhan Granlor, Lender, wilhout nolice to Granlor, may :deal with Grantor's successors wilh reference Io Ihis Mortgage and the Indebledness by way of forbearance or extension wilhout releasing Grantor from the obligalions of Ihis Morlgage or liability under Ihe Indebtedness. Time Is of lhe Essence. Time is of the essence in lhe performance of Ihis Mortgage. Wa!vet of Homestead Exemption. Granfor hereby releases and waives all righls and benefils of Ihe homestead exemption laws et Ihe Slate of Wyoming as to all Indebledness secured by this Morlgage. DEFINITIONS. The following capitalized words and terms shall have lhe following meanings when used in this Mortgage. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounls in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as lhe conlexl may require. Words and lerms not olherwise defined in Ihis Mortgage shall have the meanings attributed 1o such terms in the Uniform Commercial Code: Borrower. The word "Borrower" means TD Alpine LLC a Wyoming limited liabilily company and includes all co-signers and co-makers signing lhe Note. Defaull. The word "Default" means the Default set forth in this Morlgage in lhe seclion litled "Default". Environmental Laws. The words "Environmental Laws" mean any and all stale, federal and local slalules, regulations and ordinances relating Io lhe protection of human health or the environment, including without limitation Ihe Comprehensive Environmenlal Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and Reaulhorization Act et 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Malerials Transportation Acl, 49 U.S.C. Seclion 1801, et seq., the Resource Conservalion and Recovery Act, 42 U.S.C. Section 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 events of default set forth in Ihis Mortgage in the evenls of defaull section of this Morlgage. Grantor. The word "Granlor" means TD Alpine LLC a Wyoming limited liability company. Guaranlor. The word "Guarantor" mean.,; any guaranlor, surely, or accommodation party of any or all of lhe Indebtedness. Guaranly. The word "Guaranty!' means lhe guaranty lrom Guaranlor 1o Lender, including wilhout limitation a guaranty of all or part of Ihe Note. Hazardous Substances. The words "Hazardous Substances" mean materials lhat, because of their quantity, concenlralion or physical, chemical or infectious characteristics, may cause Or pose a present or potential hazard to human health or the environmenl when improperly used, lreated, stored, disposed of, generated, manufactured, lransported or otherwise handled. The words "Hazardous Subslances" are used in lheir very broadest sense and include wilhoul limitalion any and all hazardous or Ioxic substances, materials or waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances" also includes, without limitation, pelroleum and petroleum by-products or any fraction thereof and asbestos. Improvemenls. The word "lmprovemenls" means all existing and fulure improvemenls, buildings, structures, mobile homes affixed on the Real Property, facilities, addilions, replacements and other conslruction on the Real Property. Indebtedness. The word "Indebtedness" means all principal, interest, and other amounts, coals and expenses payable under Ihe Note or Relaled Documents, together with all renewals of, extensions of, modifications of, consolidalions of and subslilutions for the Note or Related Documents and any amounts expended or advanced by Lender to discharge Granlor's obligalions or expenses incurred by Lender Io enforce Granlor's obligations under this Morlgage, together with inlerest on such amounls as provided in this Mortgage. Lender. The word "Lender" means The Jackson State Bank & Trust, its successors and assigns. Mortgage. The word "Mortgage" means this Mortgage between Grantor and Lender. Note. The word "Note" means the promissory note dated May 3, 2004, in the original principal amount of $182,500.00 from Grantor 1o Lender, together with all renewals el, exlensions of, moditications of, refinancings of, consolidations of, and substitutions for the promissory note or agreemenl. NOTICE TO GRANTOR: THE NOTE CONTAINS A VARIABLE INTEREST RATE. Personal Property. The words "Personal Properly" mean all equipment, fixtures, and olher arlicles of personal properly now or hereafter owned by Gra'nlor, and now or hereafter attached or affixed to the Real Property; together with all accessions, paris, and additions to, all replacements of, and all subslilulions for, any of such property; and togelher with all proceed5 (including withoul limilalion all insurance proceeds and refunds of premiums) from any sale or other disposition of the Property. Property. The word "Property" means collectively the Real Property and the Personal Property. Real Properly. The words "Real Property" mean the real property, interests and rights, as lurlher described in this Mortgage. Relaled Documenls. The words "Related Documenls" mean all promissory noles, credit agreements, loan agreements, environmental agreemenls, guaranties, security agreements, mortgages, deeds of Irust, securily deeds, collateral mortgages, and all other instrumenls0 agreements and documents, whether now or hereafter existing, execuled in conneclion with the Indebtedness. Rents. The word "Renls" means all present and fulure rents, revenues, income, issues, royalties, profils, and other benefils derived from Ihe Property. GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND GRANTOR AGREES TO ITS TERMS. GRANTOR: TD ALPINE EEC A WYOMING LIMITED LIABILITY COMPANY .~.~"~ ~ ~P'~g g P uce J. Thaler, Manager of~'l;D Alpine LLC a Wyoming limile~t.lia'bility company Wyoming limited liability c~5~any ...... i~' " MORTGAGE Loan No: 33050451 i (Continued) O~-~.~,,~,~. z~'~ Page 6 LIMITED LIABILITY COMPANY ACKNOWLEDGMENT ~ ~J . )SS cou. T¥ o~ )~>~'~ On lhis ~. _ _ day of K¥/'~.L..1 -y~ ,20 O~ ,be,ore me lhe Undersigned Nolary Public personal, volunlary acl and deed ol lhe limiled Iiabilily company, by aulhorily of slalule, ils arlicles ol organizalion or ils operaling agreemenl, for lhe uses and purposes Iherein menlioned, and on oath slaled lhal lhey are aulhorized Io execule this Morlgage and in lacl executed lhe Morlgage on behalf ol Ihe limited I[abilily company~ By ltl Residing al No~ P~b,c ~. ~.a fo~ the S~ o~ ~/~'~ ~ ~ My commi~o~ ~p~ LASER PRO Lending. Vet. 5.~3.3o.oo4 Cepr Herl&nd ~:in&ncial SolulJons, inc. 1~9), 2004. All Rlghll LIMITED:LIABILITY COMPANY ACKNOWLEDGMENT STATE OF ~'/~ ) · - ) ss .,,~__ cou~ 0F ~/~//L ) On this j~~2U day of ~/~/0 ~ , 20~)~ , before me, the undersigned Notary Public, personally appeared Bruce J. Thaler, Manager of TD Alpine LLC a Wyoming limited liability company, and known to Me to be a m~meber or designated agent of the limited liability company that executed th'~ Mortgage and acknowledged the Mortgage to be the free and voluntary act and deed of the limited liability compnay, by authority of statute, its articles of organization or its operating agreement, for the uses and purposes therein mentioned, and on oath stated that he is authorized to execute this Mortgage and in fact executed the Mortgage on behalf of the limited liability company. Notary' Public in and for the State of My commission expires Bradley A-. Sinclak, Nola,,y Pubr~c Logan Twp., Blair County MY ~ Expires Oct 15, 2006