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HomeMy WebLinkAbout899321~ ~30357 (02) RECORDATION REQUESTED BY: The Jackson State Bank & Trust West Office P.O. Box 1788 50 Buffalo Way Jackson, WY 83001 WHEN RECORDED MAIL TO.' The Jackson State Bank & Trust West Office P.O. Box 1788 50 Buffalo Way Jackson, WY 83001 SEND TAX NOTICES TO: The Jackson State Bank & Trusl West Office P.O. Box 1788 50 Buffalo Way Jackson, WY 83005 LINCOLF' COUi',ITY OLERK SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY MORTGAGE MAXIMUM LIEN. The lien of this Mortgage shall not exceed at any one time $30,000.00. THIS MORTGAGE dated May 14, 2004, is made and executed between Western Land & Homes, LLC, a Wyoming Limited Liability Company, whose address is PO Box 10037, Jackson, WY 83001-1003 (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 conslderatlon, Grantor mortgages and conveys to Lender all of Grantor's rigt~t, title, and interest in and to the following described real property, together with all existing or subsequently erected or affixed buildings, improvements and fixtures; all easements, rights of way, and appudenances; all water, water rights, watercourses and ditch rights (including stock in utilities with ditch or irrigation rights); and all other rights, royalties and profits relating to the real property~ including withoul limitation all minerals, oil, gas, geothermal and similar matters, (the "Real Property") located in Lincoln County, State of Wyoming: Lot 29 of the Greys River Village Second Addition to the Town of Alpine, Lincoln County, Wyoming, according to that plat filed July 22, 1994 in the Office of the County Clerk as Instrument No. 787017. The Real Property or its address is commonly known as 272 Wooden Spur Drive, Alpine, WY 83128. Grantor presently assigns to Lender all of Grantor's right, title, and interesl in and Io all presenl and future leases of the Property and all Rents from the Property. In addition, Grantor grants to Lender a Uniform Commercial Code security interest in the Personal Property and Rents. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT OF THE INDEBTEDNESS AND (B) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THE NOTE, THE RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: PAYMENT AND PERFORMANCE. Except as otherwise provided in this Modgage, Grantor shall pay to Lender all amounts secured by this Modgage as they become due and shall strictly perform all of Grantor's obligations under this Modgage. POSSESSION AND MAINTENANCE OF THE PROPERTY. Grantor agrees that Grantor's possession and use of the Property shall be governed by the following provisions: Possession and Use. Until the occurrence of an Event of Default, Grantor may (1) remain in possession and control of the Property; (2) use, operate or manage the Property; and (3) collect the Rents from the Property. Duty to Maintain. Grantor shall maintain the Property in tenantable condition and promptly perform all repairs, replacements, and maintenance necessary to preserve its value. Compliance With Environmental Laws. Grantor represents and warrants to Lender that: (1) During the period of Grantor's ownership of the Properly, there has been no use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance by any person on, under, about or from the Property; (2) Grantor has no knowledge of, or reason to believe that there has been, except as previously disclosed to and acknowledged by Lender in writing, (a) any breach or violation Of any Environmental Laws, (b) any use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the Property by any prior owners or occupants of the Property, or (c) any actual or threatened litigation or claims of any kind by any person relating to such matters; and (3) Except as previously disclosed to and acknowledged by Lender in writing, (a) neither Grantor nor any lenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from the Property; and (b) any such activity shall be conducted in compliance with all applicable federal, state, and local laws, regulations and ordinances, including without limitation all Environmental Laws. Grantor authorizes Lender and its agents to enter upon the Property to make such inspections and tests, at Grantor's expense, as Lender may deem appropriate to determine compliance of the Property with this section of the Modgage. Any inspections or tests made by Lender shall be for Lender's purposes only and shall not be construed to create any responsibility or liability on the pad of Lender to Grantor or to any other person. The representations and warranties contained herein are based on Grantor's .due diligence in investigating the Property for Hazardous Substances. Grantor hereby (1) releases and waives any future claims against Lender for indemnity or contribution in the event Grantor becomes liable for cleanup or other costs under any such laws; and (2) agrees to indemnify and hold harmless Lender against any and all claims, losses, liaSilities, damages, penalties, and expenses which Lender may directly or indirectly sustain or suffer resulting from a breach of this section of the Modgage or as a consequence of any use, generation, manufacture, storage, disposal, release or threalened release occurring prior to Grantor's ownership or interest in the Property, whether or not the same was or should have been known to Grantor. The provisions of this section of the Mortgage, including the obligation to indemnity, shall survive the payment of the Indebtedness and the satisfaction and reconveyance of the lien of this Mortgage and shall not be affected by Lender's acquisilion of any interest in the Property, whelher by foreclosure or otherwise. ' Nuisance, Waste. Grantor shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any stripping of or waste on or to the Properly or any podion of the Property. Without limiting the generality of the foregoing, Grantor will not remove, or grant to any other perty the right to remove, any timber, minerals (including oil and gas), coal, clay, scoria, soil, gravel or rock products without Lender's prior written consent. Removal of Improvements. Grantor shall not demolish or remove any Improvements from the Real Property without Lender's prior written consent. As a condition to the removal of any Improvemenls, Lender may require Grantor to make arrangements satisfactory to Lender to replace such Improvements with Improvements of at least equal value. Lender's Right to Enter. Lender and Lender's agents and representatives may enter upon the Real Property at all reasonable times Io attend to Lender's interests and to inspect the Real Property for purposes of Grantor's compliance with the terms and conditions of this Mortgage. Compliance with Governmental Requirements. Grantor shall promptly comply with all laws, ordl'nances, and regulations, now or hereafter in effect, of all governmental authorities applicable to the use or occupancy of lhe Properly, including without limitation, the Americans With Disabilities Act. Grantor may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Granlor has notified Lender in writing prior to doing so and so long as, in Lender's sole opinion, Lender's interests in the Property are not jeopardized. Lender may require Grantor to post adequate security or a surety bond, reasonably satisfactory to Lender, to protect Lender's interest. Duty to Protect. Grantor agrees neither to abandon or leave unattended the Properly. Grantor shall do all other acts, in addition to those acts set forth above in this section, which from the character and use of the Property are reasonably necessary to protect and preserve the Property. DUE ON SALE - CONSENT BY LENDER. Lender may, at Lender's option, declare immediately due' an~ payable all sums secured by this Modgage Loan No: 33050584 MORTGAGE ~~1~ -42i (Continued) Page 2 upon the sale or transfer, without Lender's prior written consent, of all or any pad of the Real Properly, or any interest in the Real Property. A "sale or Iransfer" means the conveyance of Real Property or any right, title or interest in the Real Property; whether legal, beneficial or equitable; whether voluntary or involuntary; whether by outright sale, deed, installment sale contract, land contract, contract for deed, leasehold interest with a term greater Ihan three (3) years, lease-oplion contract, or by sale, assignment, or transfer of any beneficial interest in or to any land trust holding title to the Real Property, or by any other method of conveyance of an interest in the Real Property. If any Grantor is a corporation, partnership or limited liability company, transfer also includes any change in ownership of more than twenty-five percent (25%) of the voting stock, padnership interests or limited liability company interests, as the case may be, of such Grantor. However, this option shall not be exercised by Lender if such exercise is prohibited by federal law or by Wyoming law. TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property are Part of this Modgage: Payment, Grantor shall pay when due (and in all events prior to delinquency) all taxes, payroll taxes, special faxes, assessments, water charges and sewer service charges levied against or on account of lhe Property, and shall pay when due all claims for work done on or for services rendered or material furnished to the Property. Grantor shall maintain the Properly free of any liens having priority over or equal to the interest of Lender under this Mortgage, except for those liens specifically agreed to in writing by Lender, and except for the lien of taxes and assessments not due as further specified in the Right to Contest paragraph. Right to Contest. Grantor may withhold payment of any tax, assessment, or claim in connection with a good faith dispute over the obligation to pay, so long as Lender's interest in lhe Property is not jeopardized. If a lien arises or is filed as a result of nonpayment, Grantor shall within fifteen (15) days after the lien arises or, if a lien is filed, within fifleen (15) days after Grantor has notice of the filing, secure the discharge of the lien, or if requesled by Lender, deposil with Lender cash or a sufficient corporale surely bond or other security satisfactory to Lender in an amount sufficient to discharge the lien plus any costs and reasonable attorneys' fees, or other charges that could accrue as a result of a foreclosure or sale under the lien. In any contest, Grantor shall defend itself and Lender and shall satisfy any adverse judgment before enforcement against the Property. Grantor shall name Lender as an additional obligee under any surety bond furnished in the contest proceedings. Evidence of Payment. Grantor shall upon demand furnish Io Lender satisfactory evidence of payment of the taxes or assessments and shall authorize the appropriate governmental official to deliver to Lender at any time a written statement of the taxes and assessments against the Properly. Notice of Construction. Grantor shall notify Lender at least fifteen (15) days before any work iS Commenced, any services are furnished, or any materials are supplied to the Properly, if any mechanic's lien, materlalmen's lien, or other lien could be asseded on account of the work, services, or materials. Grantor will upon request of Lender furnish to Lender advance assurances satisfactory to Lender that Grantor can and will pay the cost of such improvements.. PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the Property are a part of this Modgage: Maintenan'ce of Insurance. Grantor shall procure and maintain policies of fire insurance with standard extended coverage endorsements on a replacement basis for the full insurable value covering all Improvements on the Real Property in an amount sufficient to avoid application of any coinsurance clause, and with'a standard modgagee clause in favor of Lender. Grantor shall also procure and maintain comprehensive general liability insurance in such coverage amounts as Lender may request with Lender being named as additional insureds in such liability insurance policies. Additionally, Grantor shall maintain Such other insurance, including but not limited to hazard, business interruption and boiler insurance as Lender may require. Policies shall be written by such insurance companies and in such form as may be reasonably acceptable to Lender. Grantor shall deliver to Lender certificates of coverage from each insurer containing a slipulation that coverage will not be cancelled or diminished without a minimum of ten (10) days' prior written notice to Lender and not containing any disclaimer of the insurer's liability for failure to give such notice. Each insurance policy also shall include an endorsement providing that coverage In favor of Lender will not be impaired in any way by any act, omission or default of Grantor or any other person. Should the Real Property be located in an area designated by the Director of the Federal Emergency Management Agency as a special flood hazard area, Grantor agrees to obtain and maintain Federal Flood Insurance, if available, within 45 days after notice is given by Lender that the Properly is Iocaled in a special flood hazard area, for the full unpaid principal balance of the loan and any prior liens on the properly securing the loan, up to the maximum policy limits set under the National Flood Insurance Program, or as otberwise required by Lender, and to maintain such insurance for the term of the loan.' Application of Proceeds. Grantor shall promptly notify Lender of any loss or damage to Ihe Properly. Lender may make proof of loss if Grantor fails 1o do so within fifteen (15) days of the casualty. Whether or not Lender's security is impaired, Lender may, at Lender's election, receive and retain lhe proceeds of any insurance and apply the proceeds to the reduction of the Indebtedness, payment of any lien affecting Ihe Property, or the restoration and repair of the Property. If Lender elects to apply Ihe proceeds to restoration and repair, Grantor shall repair or replace the damaged or destroyed Improvements in a manner satisfactory to Lender. Lender shall, upon satisfactory proof of such expenditure, pay or reimburse Grantor from the proceeds for the reasonable cost of repair or restoration if Grantor is not in. default under this Modgage. Any proceeds which have not been disbursed within 180 days after their receipt and which Lender has not committed to the repair or restoration of the Property shall be used first lo pay any amount owing to Lender under this Mortgage, then to pay accrued irlterest, and the remainder, if any, shall be applied to the principal balance of the Indebtedness. If Lender holds any proceeds after payment in full of the Indebtedness, such proceeds shall be paid to Grantor as Grantor's interests may appear. Grantor's Report on Insurance. Upon requesl of Lender, however not more than once a year, Grantor shall furnish to Lender a repod on each existing policy of insurance showing: (1) the name of the insurer; (2) the risks insured; (3) the amount of the policy; (4) lhe properly insured, the then current replacement value of such property, and the manner of determining that value; and (5) the expiration date of the policy. Grantor shall, upon request of Lender, have an independent appraiser satisfactory to Lender determine the cash value replacement cost of the Property. LENDER'S EXPENDITURES. If any action or proceeding is commenced that would materially affect Lender's interest in the Properly or if Grantor fails to comply with any provision of this Modgage or any Related Documents, including but not limited to Granlor's failure to discharge or pay when due any amounts Grantor is required to discharge or pay under this Modgage or any Related Documents, Lender on Grantor's behalf may (but shall not be obligated to) take any action that Lender deems appropriate, including but not limited to discharging or paying all taxes, liens, security interesls, encumbrances and other claims, at any time levied or placed on the Property and paying all costs for insuring, maintaining and preserving the Property. All such expenditures incurred or paid by Lender for such purposes will then bear interest at the rate charged under the Note from the date incurred or paid by Lender to Ihe date of repayment by Grantor. All such expenses will become a pad of the Indebtedness and, at Lender's option, will (A) be payable on demand; (B) be added to the balance of the Note and be appodioned among and be payable with any installment payments to become due during either (1) the term of any applicable insurance policy; or (2) the remaining term of the Note; or (C) be treated as a balloon payment which will be due and payable at tile Note's maturity. The Modgage also will secure payment of these amounts. Such right shall be in addition to all other rights and remedies to which Lender may be entitled upon Default. WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the Property are a part of this Modgage: Title. Grantor warrants that: (a) Grantor holds good and marketable title of record to the Property in fee simple, free and clear of all liens and encumbrances other than those set fodh in the Real Property description or in any lille insurance policy, title report, or final title opinion issued in favor of, and accepted by, Lender in connection with this Mortgage, and (b) Grantor has the full right, power, and authority to execute and deliver this Modgage to Lender. Defense of Title. Subject to the exceplion in lhe paragraph above, Grantor warrants and will forever defend the lille to the Property against the lawful claims of all persons. In the event any action or proceeding is commenced that questions Grantor's title or the interest of Lender under this Modgage, Grantor shall defend the action at Grantor's expense. Grantor may be Ihe nominal party in such proceeding but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of Lender's own (~l~oicel ~tnd Grantor will deliver, or cause to be delivered, to Lender such instruments as Lender may request from time 1o time'to permit such participation. Compliance With LawS. Grantor warrants that the Property and Grantor's use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental aulhorities. Survival of Representalions and Warranties. All representations, warranties, and agreements made by Grantor in this Modgage shall survive the execution and delivery of this Modgage, shall be continuing in nature, and shall remain in full force and effect until such time as Grantor's Indebtedness shall be paid in full. CONDEMNATION. The following provisions relating to condemnation proceedings are a pad of lhis Modgage: Proceedings. If any proceeding in condemnation is filed, Grantor shall promptly notify Lender in wilting, and Grantor shall promptly take such steps as may be necessary to defend the action and obtain tile award. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to padicipate in the proceeding and to be represen[ed 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 time to time to permit such participation. Application of Net Proceeds. If all or any part of the Property is condemned by eminent domain proceedings or by any proceeding or purchase Loan No: 33050584 Page 3 in lieu of condemnation, Lender may at its election require that all or any podion of the net proceeds of the award be applied to the Indebledness or the repair or restoration of the Property. The net proceeds of the award shall mean the award after payment 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 to governmental laxes, fees and charges are a pad of this Modgage: ' Current Taxes, Fees and Charges. Upon request by Lender, Grantor shall execute such documents in addition to this Modgage and take whatever other aclion is requesled by Lender to perfect and conlinue Lender's lien on the Real Property. Grantor shall reimburse Lender for all taxes, as described below, together with all expenses incurred in recording, perfecting or continuing this Modgage, including without limitation all taxes, fees, documentary stamps, and other charges lor recording or registering this Modgage. Taxes. The following shall constitute taxes to which this seclion applies: (1) a specilic tax upon this type of Mortgage or upon all or any part of the Indebtedness secured by this Modgage; (2) a specific lax on Grantor which Grantor is authorized or required to deduct from payments on the Indebtedness secured by Ihis type of Modgage; (3) a tax on this type of Modgage chargeable against Ihe Lender or the holder of the Note; and (4) a specific tax on all or any podion of the IndebIedness or on payments of principal and interesl made by Grantor. Subsequent Taxes. If any tax to which this Section applies is enacted subsequent to the date of this Modgage, this event shall have the same effect as an Event of Default, and Lender may exercise any or all of its available remedies for an Event of Default as provided below unless Grantor either (1) pays the tax before it becomes delinquent, or (2) contests the lax as provided above in the Taxes and Liens section and deposits with Lender cash or a sufficient corporate surety bond or olher security satisfactory lo Lender. SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to Ibis Modgage as a security agreement are a pad of this Modgage: Security Agreement. This instrument shall constitute a Security Agreement to the extent any of the Property constitutes fixtures, and Lender shall have all of the rights of a secured party under the Unilorm Commercial Code as amended from time to time. Security Interest. Upon request by Lender, Grantor shall take whatever action is requested by Lender to perfect and continue Lender's security interest in the Renls and Personal Property. In addition to recording this Mortgage in the real properly records, Lender may, at any time and without fudher authorization from Grantor, file executed counterpads, copies or reproductions of this Mortgage as a financing statement. Grantor shall reimburse Lender for all expenses incurred in perfecting or continuing this security interest. Upon default, Grantor shall not remove, sever or detach the Personal Properly from the Property. Upon defa(JIt, Grantor shall assemble any Personal Property not affixed to the Properly in a manner and at a place reasonably convenient to Grantor and Lender and make it available to Lender within three (3) days after receipt of written demand from Lender to the extent permitted by applicable law. Addresses. The mailing addresses of Grantor (debtor) and Lender (secured party) from which information concerning the security interest granted by this Mortgage may be obtained (each as required by the Uniform Commercial Code) are as stated on the first page of this Modgage. FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating lo fudher assurances and attorney-in-fact are a pad of this Modgage: Further Assurances. At any time, and from time to time, upon request of Lender, Grantor will make, execute and deliver, or will cause to be made, executed or delivered, to Lender or to Lender's designee, and when requested by Lender, cause to be filed, recorded, rallied, or rerecorded, as the case may be, at such times and in such offices and places as Lender may deem appropriate, any and all such modgages, deeds of trust; security deeds, security agreements, financing statements, continuation slatemenls, instruments of fudher assurance, cedificates, and other documents as may, in the sole opinion of Lender, be necessary or desirable in order to effectuate, complete, perfect, continue, or preserve (1) Grantor's obligations under the Note, this Modgage, and the Related Documents, and (2) the liens and security interests created by this Mortgage as first and prior liens on the Properly, whether now owned or hereafter acquired by Grantor. Unless prohibited by law or Lender agrees to the contrary in writing, .Grantor shall reimburse Lender for all costs and expenses incurred in connection wilh the matters referred to in this paragraph. Attorney-in-Fact. If Grantor fails lo do any of the things referred to in the preceding paragraph, Lender may do so for and in the name of Grantor and at Grantor's expense. For such purposes, Grantor hereby irrevocably appoints Lender as Grantor's attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and doing all other things as may be necessary or desirable, in Lender's sole opinion, to accomplish the matters relerred to in the preceding paragraph. FULL PERFORMANCE. If Grantor pays all the Indebtedness when due, and olherwise performs all the obligations imposed upon Grantor under this Modgage, Lender shall execute and deliver to Granlor a suitable satisfaction ol this Modgage and suitable statemenls of termination of any financing statement on tile evidencing Lender's security interest in the Rents and the Personal Property. Grantor will pay, if permitted by applicable law, any reasonable termination fee as determined by Lender from time to lime. EVENTS OF DEFAULT. Each of the following, at Lender's oplion, shall constitute an Evenl of Default under this Modgage: Payment Default. Grantor fails to make any payment when due under the Indebtedness. Default on Other Payments. Failure of Grantor within the time required by this Mortgage to make any payment for taxes or insurance, or any other payment necessary to prevent filing of or to effect discharge of any lien. Other Defaults. Grantor fails to comply with or to perform any other term, obligation, covenant or c~ndition contained in this Modgage or in any of the Related Documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Grantor, Default In Favor of Thlrd Parties. Should Grantor default under any loan, extensionof credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Grantor's property or Grantor's ability to repay the Indebtedness or Grantor's ability to perform Grantor's obligations under this Mortgage or any related document. False Statements. Any warranty, representation or statement made or furnished to Lender by Grantor or on Grantor's behalf under this Mortgage or the Related Documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter. Defective Collaterallzation. This Modgage or any of lhe Related Documents ceases to be in full force and effect (including failure of any collateral document to create a valid and perfected security interest or lien) at any lime and for any reason. Death or Insolvency. The dissolution of Grantor's (regardless ol whelher election to continue is made), any member withdraws from the limited liability company, or any other termination of Grantor's existence as a going business or the death of any member, the insolvency of Grantor, the appointmenl of a receiver for any pad ol Grantor's property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws bY or against Grantor.. Creditor or Forfeiture Proceedings. Commencement of foreclosure-or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor ol Grantor or by any governmental agency against any property securing the Indebtedness. This includes a garnishment of any of Grantor's accounts, including deposit accounts, with Lender. However, this Event of Default shall nol apply if there is a good faith dispute by Grantor as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Grantor gives Lender written notice of lhe creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or.forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute. Breach of Other Agreement. Any breach by Grantor under the terms of any other agreement between Grantor and Lender that is not remedied within any grace period provided therein, including without limitation any agreement concerning any indebtedness or other obligation of Grantor to Lender, whether existing now or later. Events Affecting Guarantor. Any of the preceding evenls occurs with respect Io any Guarantor of any of the Indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes Ihe validity of, or liability under, any Guaranty o¢ the Indebtedness. In the event of a death, Lender, at its option, may, but shall not be required to, permit the Guarantor's estate to assume unconditionally the obligations arising under the guaranty in a manner satisfactory to Lender, and, in doing so, cure any Event of Default. = Adverse Change. A material adverse Change occurs in Grantor's financial condition, or Lender believes the prospect of payment or performance of the Indebtedness is impaired. Right to Cure. If any default, other than a default in payment is curable and if Granlor has not been given a notice of a breach of the same provision of this Mortgage within the preceding twelve (12) monlhs, it may be cured if Grantor, after receiving written notice from Lender demanding cure of such default: (1) cures the delault within fifteen (15) days; or (2) if the cure requires more than fifteen (15) days, immediately Loan No: 33050584 MORTGAGE O~J3~~'- -. - 423 (Continued) Page 4 initiates steps which Lender deems in Lender's sole discretion to be sufficient to cure the default and therea[ter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event ol Default and at any time therealter, Lender, at Lender's option, may exercise any one or more of the following rights and remedies, in addition to any other rights or remedies provided by law: Accelerate Indebtedness. Lender shall have Ihe right at its option without notice to Grantor to declare' the entire Indebtedness immediately due and payable, including any prepayment penalty which Grantor would be required to pay. UCC Remedies. With respect to all or any part of the Personal Property, Lender shall have all the rights and remedies of a secured party under the Uniform Commercial Code. Collect Rents. Lender shall have the right, without notice to Grantor, to take possession of the Properly, including during the pendency of foreclosure, whether judicial or non-judicial, and collect the Rents, including amounts past due and unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness. In fudherance of this right, Lender may require any tenant o~' other user of the Properly to make payments of rent or use fees directly to Lender. If the Rents are collected by Lender, then Grantor irrevocably designates Lender as Grantor's attorney-in-fact to endorse instruments received in payment thereof in the name of Grantor and to negotiate the same and collect the proceeds. Payments by tenants or other users to Lender in response to Lender's demand Shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the demand existed. Lender may exercise its rights under thisisubparagraph either in person, by agent, or through a receiver. Appoint Receiver. Lender shall have lhe right to have a receiver appointed to take possession of all or any pad 0i the Property, with the power to protect and preserve lhe Properly, to operate the Property preceding Ioreclosure or sale, and to collect the Rents from the Property and apply the proceeds, over and above the cost of the receivership, against the Indebtedness. The receiver may serve without bond if permitted by law. Lender's right to the appointment of a receiver Shall exist whether or not the apparent value of the Property exceeds the Indebtedness by a substantial amount. Employment by Lender shall not disqualify a person from serving as a receiver. Judicial Foreclosure. Lender may obtain a judicial decree foreclosing Grantor's interest in all or any part of the Property. Nonjudicial Sale. Lender may foreclose Grantor's interest in all or in any pad of the Property by non-judicial sale, and specifically by "power of sale" or "advedisement and sale" foreclosure as provided by statute. Deficiency Judgment. If permitted by applicable law, Lender may obtain a judgment for any deficiency remaining in the Indebtedness due to Lender after application ol all amounts received from the exercise ot the rights provided in this section. Tenancy at Sufferance. If Grantor remains in possession of the Property after the Property is sold as provided above or Lender otherwise becomes entitled to possession of Ihe Property upon delault of Granlor, Grantor shall become a tenant at sufferance of Lender or the purchaser of the Property and shall, at Lender's option, either (1) pay a reasonable rental for the use of the Properly, or (2) vacate the Property immediately upon the demand of Lender. Other Remedies. Lender shall have all other rights and remedies provided in this Modgage or Ihe Note or available at law or in equity. Sale of the Property. To the extent permitted by applicable law, Grantor hereby waives any and all right to have the Properly marshalled. In exercising its rights and remedies, Lender shall be free to sell all or any pad of the Property together or separately, in one sale or by separate sales. Lender shall be entitled to bid at any public sale on all or any podion of the Property. Notice of Sale. Lender shall give Grantor reasonable notice of the time and place of any public sale of the Personal Properly or of the time after which any private sale or other intended disposition of the Personal Property is to be made. Reasonable notice shall mean notice given at least ten (10) days before the time Of the sale or disposition. Any sale of the PersOnal Property may be made in conjunction with any sale of the Real Property. Election of Remedies. Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Grantor under this Modgage, after Grantor's failure to perform, shall not affect Lender's right to declare a delault and exercise its remedies. Nothing under this Modgage or otherwise shall be construed so as to limit or restrict the rights and remedies available to Lender following an Event of Default, or in any way to limit or reslrict the rights and ability of Lender to proceed directly against Grantor and/or against any other co-maker, guarantor, surety or endorser and/or to proceed against any other collateral directly or indirectly securing the Indebtedness. Attorneys' Fees; Expenses. If Lender institutes any suit or action to enforce any of the terms of this Modgage, Lender shall be entitled to recover such sum as the coud may adjudge ~'easonabte as attorneys' fees al trial and upon any appeal. Whether or not any coud action is involved, and to the extent not prohibited by law, all reasonable expenses Lender incurs Ihat in Lender's opinion are necessary at any time for the protection of its interesl or the enforcement of its rights shall become a pad of the Indebtedness payable on demand and shall bear interest at the Note rate from the date ol the expenditure until repaid. Expenses covered by this paragraph include, without limilalion, however subject to any limits under applicable law, Lender's reasonable a~torneys' fees and Lender's legal expenses whether or not there is a lawsuit, including reasonable atlorneys' fees and expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services, the cost of searching records, Obtaining title repods (including foreclosure repods), surveyors' reports, and appraisal fees and title insurance, to the extent permitted by applicable law. Grantor also will pay any court costs, in addition to all other sums provided by law. NOTICES. Any notice required to be given under this Mortgage, including without limitation any notice of delault and any notice of sale shall be given in writing, and shall be elfective when actually delivered, when actually received by telefacsimile (unless oiherwise required by law), when deposited with a nationally recognized overnigh~ courier, or, if mailed, when deposited in the United States mail, as first class, cedified or registered mail postage prepaid, directed to the addresses shown near the beginning ol this Modgage. All copies of nolices of foreclosure from the holder of any lien which has priorify Over this Modgage shall be sent to Lender's address, as shOwn near the beginning of this Modgage. Any party may change its address for notices under this Modgage by giving formal written notice to the other padies, specifying that the purpose of the notice is to change the party's' address. For notice purposes, Grantor agrees to keep Lender informed at all times of Grantor's current address. Unless otherwise provided or required by law, if there is more than one Grantor, any notice given by Lender to any Grantor is deemed to be notice given to all Grantors. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a pad of this Modgage: Amendments. This Modgage, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set fodh in this Mortgage. No alteration of or amendment to lhis Modgage shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Annual Reports. If the Property is used for purposes other than Grantor's residence, Grantor shall lurnish to Lender, upon request, a cedified statement of net operating income received from the Properly during Grantor's previous fiscal year in such form and detail as Lender shall require. "Net operating income" shall mean all cash receipts from the Property less all cash expenditures made in connection with the operation of the Propedy. Caption Headings. Caption headings in this Modgage are for convenience purposes only and are not to be used to interpret or define the provisions of this Modgage. Governing Law. This Mortgage will be governed by, construed and enforced In accordance with federal law and the laws of the State of Wyoming. This Mortgage has been accepted by Lender In the State of Wyoming. Choice of Venue. If there is a lawsuit, Grantor agrees upon Lender's request to submit fo the jurisdiction of the courts of Teton County, State of Wyoming. No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Mortgage unless such waiver is given in writing 'and signed by Lender. No delay or omission On the pad of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Modgage shall not prejudice or constitute a waiver of Lender's right olherwise to demand strict compliance with that provision or any other provision of this Modgage. No prior waiver by Lender, nor any course of dealing between Lender and Grantor, shall constitute a waiver of any of Lender's rights or of any of Grantor's obligalions as to any future transactions. Whenever the consent ol Lender is required under this Modgage, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender. Severablllty. II a court of competent jurisdiction finds any provision of this Modgage to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable asto any other circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall be considered deleted from this Modgage. Unless otherwise required by law, the illegality; invalidity, or unenforceability of any provision of ' Loan No: 33050584 (Continued) Page 5 this Modgage shall not affect the legality, validity or enforceability of any other provision of Ihis Modgage. Merger. There shall be no merger of lhe interest or estate created by this Modgage with any other interest or estate in the Property at any time held by or for the benefit of Lender in any capacity, without tile written consent of Lender. Successors and Assigns, Subject to any llmitations Stated in Ibis Modgage on Iransfer of Grantoi:';~ interest, this Modgage shall be binding upon and inure to the benefit of the padies, their successors and assigns. If ownership of the Property becomes vested in a person other than Grantor, Lender, without notice to Grantor, may deal with Grantor's successors with reference to this Modgage and the Indebtedness by way of forbearance or extension without releasing Grantor from the obligations of this Mortgage or liability under the Indebtedness. Time is of the Essence. Time is of the essence in the performance of this Mortgage. Waiver of Homestead Exemption. Grantor hereby releases and waives all rights and benefits of the homestead exemption laws of the State of Wyoming as to all Indebtedness secured by this Modgage. DEFINITIONS. The following capitalized wo~:ds and terms shall have the following meanings when used in this Mortgage. Unless specifically stated to the conlrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Mortgage shall have the meanings attributed to such terms in the Uniform Commercial Code: Borrower.' The word "Borrower" means Western Land & Homes, LLC, a Wyoming Limited Liability Company and includes all co-signers and co-makers signing the Note. Default. The word "Default" means the Default set forth in this Mortgage in the section filled "Default". Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statutes, regulations and ordinances relating Io lhe protection of human health or the environment, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transpodation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable state or federal laws, rules, or regulations adopted pursuant thereto. Event of Default. The words "Event of Default" mean any of the events of default set fodh in this Mortgage in the events of default section of this Mortgage. Grantor. The word "Grantor" means Western Land & Homes, LLC, a Wyoming Limited Liability Company. Guarantor. The word "Guarantor" means any guarantor, surety, or accommodation party ot any or all of Ihe Indebtedness. Guaranty. The word "Guaranty" means the guaranty from Guarantor to Lender, including without limitation a guaranty of all or part of the Note. Hazardous Substances. The words "Hazardous Substances" mean materials that, because of their quantity, concentration or physical, chemical or infectious characteristics, may cause or pose a present or potential hazard to human health or the environment when improperly used, trealed, stored, disposed of, generated, manufactured, transported or otherwise handled. The words "Hazardous Substances" are used in their very broadest sense and include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed under the' Environmental Laws. The term "Hazardous Substances" also includes, without limitation, petroleum and petroleum by-products or any fraction thereof and asbestos. Improvements. The word "Improvements" means all existing and future improvements, buildings, structures, mobile homes affixed on the Real Property, facililies, additions, replacements and other construction on the Real Property. Indebtedness. The word "Indebtedness" means all principal, interest, and other amounts, costs and expenses payable under the Note or Related Documents, together with all renewals of, extensions of, modifications of, consolidations of and substitutions for the Note or Related Documents and any amounts expended or advanced by Lender to discharge Grantor's obligations or expenses incurred by Lender to enforce Grantor's obligations under this Modgage, together with interest on such amounts as provided in this Modgage. Lender. The word "Lender" means The Jackson State Bank & Trust, its successors and assigns. Mortgage. The word "Mortgage" means this Modgage belween Grantor and Lender. Note. The word "Note" means the promissory note dated May 14, 2004, irt the original principal amount of $30,000.00 from Grantor to Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the promissory note or agreement. NOTICE TO GRANTOR: THE NOTE CONTAINS A VARIABLE INTEREST RATE. Personal Property. The words "Personal Property" mean all equipment, fixtures, and other adicles of personal property now or hereafter owned by Grantor, and now or hereafter attached or affixed to the Real Property; together wilh all accessions, parts, and additions to, all replacements of, and all substitutions for, any of such property; and together with all proceeds (including without limitation all insurance proceeds and refunds of premiums) from any sale or other disposition of the Property. Property. Tile word "Properly" means collectively the Real Properly and the Personal Properly. Real Property. The words "Real Property" mean the real property, interests and rights, as further described in this Modgage. Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds ol trusl, security deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. Rents. The word "Rents" means all present and future rents, revenues, income, issues, royalties, profits, and other benefits derived from the Property. GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND GRANTOR AGREES TO ITS TERMS. GRANTOR: gp/ . ,~(~m13 , or'-wesfe'rf{ Eand ~' ..,,~,~fe~ .~r'on~o-nt,~ember of Western Land & Home~ LLC~a~/Vyoming Limited Liability Company Homes, LLOra/Wyomlng Limited Llablllty Company Loan No: 33050584 MORTGAGE (Continued) ~' '-) Page 6 ' LIMITED LIABILITY COMPANY ACKNOWLEDGMENT COMMe~NW~ALTH pE NN~VLVANIA STATE OF ', ~<~.[~ i/g"( i~- ' ) I NOTARIAL SEAL - ) SS . I JESSICA M, WOOTERS ~I~l~.~~ ) I MEDIA BORO TOWNSHIP, DEI. AWARE COUNTY ' ~" day of ~ff.~' , , 20'4 ;fore me ~he undersigned Nora. Public personally be the free and volunta~ acl and deed of lhe limited liability company, by authori~ 'of slalute, its adicles of organization or its operaling agreement, for Ihe uses and purposes therein menlioned, snd on oath slaled that they are authorized to execute Ibis Modgage and in fact executed the Modgage on behalf of the limited liabili~ company. N~ Public V LIMITED LIABILITY ACKNOWLEDGEMENT 426 THE STATE OF WYOMiNG County of Teton ) )s.s.- ) On this /~ day of flk]Fxz~ , ~9_xsD~ before me personally appeared , -O-~o_~r%.~l~v~ '~D~lg~v~u (J ' . , Member(s) of ~,~ ~ ~ ~ I~o~. ~,4 ~/~, ~L~F% whose identity I proved on the basis of satisfactory evidence, and ac~owle~ged said~instmment to be the free and voluntary act and deed of the Limited Liability Company, by authority of statute, its aaicles of organization or its operating a~eement for the uses and pu~oses therein mentioned, and on oath statement they are authorized to execute this instrument and in fact executed the instrument on behalf of the Limited Liability Company. This Notary Certificate is prepared on a separate page and is attached to the document entitled ~'ocq-r~t.0~-' Lc~t,~ 3-3o.5OG.cdq- containing ~ pages and is attached to that document by mdan~ of stapling. Given under my hand and seal the date first above written Notary Public My Connnission expires: F_')F__~;:c'F' _,~.9.~c~ 00'-7