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HomeMy WebLinkAbout89951130590 RECORDATION REQUESTED BY: The Jackson Slale Bank & Trust Maln Office P.O. Box 1788 112 Cenler Streel Jackson, WY 83001 WHEN RECORDED MAIL TO: Th e Jackson State Bank & Trusl Main Office P.O. Box 1788 112 Cenler Street Jackson, WY 83001 SEND TAX NOTICES TO: The Jackson State Bank & Trust Main Office P.O. Box 1788 112 Cenler Slreel Ji~ck~on, WY 83001 89951 23'7 SPACE. ABOVE THIS LINE I.S FOR RECORD.ER'~ USE ONLY MORTGAGE MAXIMUM LIEN. The lien of this MOrtgage shall not exceed at any one time $100,000.00. THIS MORTGAGE dated May 12, 2004', is made and executed between Cynthia A. Engelstad, Sole Trustee, or her successors in trust, under the Cynthia A. Engelstad Living Trust, dated February 1, 1999, and any amendments thereto, whose address is P.O. Bo,'( 12321, Jackson, WY 83002-2321 (referred to below as "Grantor") and The Jackson State Bank & Trust, whose address is P.O. Box 1788, 112 Center Street, Jackson, WY 83001 (referred to below aS "Lender"). : GRANT OF MORTGAGE. For valuable considerallon, Granlor mortgages and conveys Io Lender all of Grantor's dghl, lille, and interesl in and lo the following described real properly, Iogether 'with all exisling or subsequently erecled or affixed buildings, improvements and fixtures; all easemenls, righls of way, and appurtenances; all water, weter righls, walercourses and ditch rights (including stock in utilities with ditch or irrigation rights); and all olher rights, royalties, and profils relating to the real property, including without limitation all minerals, oil, gas, geolhermal end similar matters, (the "Real Property") located in Lincoln.County, State of Wyoming: Lot 34, Alpine Village Subdivision No. 1, Plat 2, Amended, according to that plat thereof recorded in the Office of the Lincoln County Clerk, Lincoln County, Wyoming. The Real Property or its address is,' commonly known as 975 Alpine Village Loop, Alpine, WY 83128. Granlor presently assigns to Lender all of Granlor's right, title, and inlerest in and to all present and future leases ot the Property and all Renls from the Properly. In addition, Grantor grants to Lender',a Uniform Commercial Code securily inleresl in Ihe Personal Property and Renls. 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: GRANTOR'S WAIVERS. Grantor waives all rights or defenses arising by reason of any "one action" or "anli-deficiency" law, or any olher law which may prevent Lender from bringing any action against Grantor, including a claim for deficiency to the exlent Lender is otherwise enlitled lo a claim for deficiency, before or afler Lender's commencement or completion of any foreclosure action, either judicially or by exercise of a power of sale. GRANTOR'S REPRESENTATIONS AND WARRANTIES. Grantor warrants that: (a) Ihis Mortgage Is execuled at Borrower's request and not at the request of Lender; (b) Grantor has the full power, right, and authority ~o enter into this Mortgage and to hypolhecate the Properly; (c) Ihe provisions of this Mortgage do not conflict wilh, or result in a default under any agreement or other inslrumenl binding upon Grantor and do nol result in a violation of any law, regulation, court decree or order applicable to Grantor; (d) Grantor has eslablJshed adequate means of oblaining from Borrower on a continuing basis information about Borrower's financial condition; and (e) Lender has made no representation to Grantor about Borrower (including wilhout limitation the credilworlhiness of Borrower). PAYMENT AND PERFORMANCE. Except as olherwise provided in this Mortgage, Borrower shall pay lo Lender all Indebtedness secured by this Mortgage as it becomes due, and Borrower and Grantor shall strictly perform all Borrower's and Granlor's obligations under this Mortgage. POSSESSION AND MAINTENANCE OF THE PROPERTY. Borrower and Grantor agree that Borrower's and Granfor's possession and use of the Property shall be governed by ihe following provisions: Possession and Use. Until the occurrence of an Event of Default, Grantor may (1) remain in possession and control of the Property; (2) use, operate or manage lhe Property; and (3) collect lhe Renls from the Property. Duty lo Maintain. Granlor shall maintain ;he Properly in good condilion and promplly perform all repairs, replacements, and maintenance necessary to preserve its value.. Compliance With Envlronmenlal Laws. Grantor represents and warrants lo Lender lhat: (1) During lhe period of Granlor's ownership ol the Properly, lhere has been no use, generation, manufacture, storage, treatmenl, disposal, release or threalened release of any Hazardous Substance by any person on, under, aboul or from the Property; (2) Grantor has no knowledge of, or reason lo believe thai there has been, except as previously disclosed to and acknowledged by Lender in writing, (a) any breach or violation of any Environmenla! Laws, (b) any use, generation, manufacture, storage, lrealmenl, disposal, release or threatened release ol any Hazardous Substance on, under, about or from the Properly by any prior owners or occupants of the Property, or (c) any actual or threatened liligalion or claims ol any kind by any person relating Io such matterS; and (3) Except as previously disclosed to and acknowledged by Lender in wriling, (a) neither Granlor nor any lenant, contractor, agent or other aulhorized user of the Property shall use, generate, manufaclure, slore, treal, dispose of or release any Hazardous Substance on, under, aboul or from the Property; and (b) any such activity shall be conducted in compliance wilh all applicable federal, state, and local laws, regulations and ordinances, including wilhout limitalion all Environmental Laws. Granlor aulhodzes Lender and its agents to enter upon the ProPerly to make such inspections and tests, at Granlor's expense, as Lender may deem appropriate to delermine compliance of the Property with this section of the Mortgage. Any inspections or tests made by Lender shall be for Lender's purposes only and shall not be conslrued to create any responsibility or liabilily on lhe part of Lender to Grantor or 1o any other person. The represenlations and warranties . contained herein are based on Grantor's due diligence in investigating Ihe Property for Hazardous Substances. Grantor hereby (1) releases and waives any fulure claims against Lender for indemnity or conlribution in the event Granlor becomes liable for cleanup or olher cosls under any such laws; and (2) agrees to indemnify a;3d hold harmless Lender against any and all claims, losses, liabililies, damages, penallies, and expenses which Lender may directly or indirectly sustain or suffer resulting from a breach of Ibis section of the Morlgage or as a consequence of any use, generation, manufacture, slorage, disposal, release or threatened release occurring prior 1o Grantor's ownership or inleresl in the Properly, whelher or not lhe same was or should have been known to Grantor. The provisions ol this seclion of lhe Mortgage, including the obligalion lo Indemnify, shall survive the payment of Ihe Indebledness and the satisfaction and reconveyance of the lien of this Mortgage and shall nol be affecled by Lender's acquisition of any inlerest in the Property, whether by foreclosure or otherwise. Nuisance, Wasle. Granlor shall not cause, conducl or permi~ any nuisance nor commit, permit, or suffer any siripping of or wasle on or to lhe ProPerty or any portion of the Properly. Without limiting Ihe generalily of the foregoing, Grantor will not remove, or granl to any other parly 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 Properly withoul Lender's prior wrillen consent. As a condition to lhe removal of any Improvements, Lender may require Grantor to make arrangemenls salisfaclory Io Lender ~o replace such Improvemenls with Improvements of at least equal value. Lender's Rlghl Io Enter. Lender and Lender's agenls and represenlalives may enler upon the Real Property at all reasonable limes to allend to Loan No: 33046723 MORTGAG~:~ :i~i:::;:;i?,~;~ 0 (ContinUed) -238 Page 2 Lender's interesls and 1o inspect the Real.Property for purposes of Grantor's compliance with the terms and conditions of this Mortgage. Compliance with Governmenlal Requiriemenls. Grantor shall promptly comply wilh all laws, ordinances, and regulalions, now or hereafter in effect, of all governmental aulhorilies applicable to the use or occupancy gl the Property. Granlor may conlesl in good faith any such law, ordinance, or regulation and wilhhold compliance during any proceeding, including appropriate appeals, so long as Grantor has notified Lender in writing prior to doing so and so long as, in!Lender's .sole opinion, Lender's interests in Ihe Property are not jeopardized. Lender may require Grantor to P0Sl adequate security or a surlety,bond, reasonably satisfactory 1o Lender, to protect Lender's interest. Duty Io Prolecl. Grantor agrees neither lb abandon or leave unallended Ihe Properly. Grantor shall do all other acts, in addilion 1o those acts set forth above in this seclion, which from the: character and use of lhe Property are reasonably necessary to pr0tecl and preserve the Property. DUE ON SALE - CONSENT BY LENDER. Lender may,' at Lender's oplion, declare immedialely due and payable all sums secured by this Mortgage upon lhe sale or transfer, wilhout Lender's prior wrillen consent, gl all or any part of lhe Real Property, or any interest in the Real Property. A "sale or transter" means lhe conveyance of Real Procerty or any right, title or interest in lhe Real Properly; whether legal, beneficial or equilable; whether voluntary or involuntary; whether by oulright sa]e, deed, inslallment sale contract, land contracl, contract for deed, leasehold interesl with a term greater than Ihree (3) years, lease-option contract, or.by sale, assignment, or transfer of any beneficial interest in or to any land lrust holding lille lo the Real Properly, or by any other method of conveyaOce of an inlerest in the Real Properly. However, this oplion shall nol be exercised by Lender il such exercise is prohibited by federal law or by Wyominlg law. TAXES AND LIENS. The following provisions !ela!ing to the taxes and liens on Ihe Property are part of this Mortgage; Paymenl. Grantor shall pay when due (and in all events prior to delinquency) all taxes, payroll taxes, special laxes, assessments, water charges and sewer service charges levied against or on accounl gl lhe Prope. rty, and shall pay when due all claims for work done on or for services' rendered or malerial furnished lo lhe ProPerty. Grantor shall maintain lhe Properly free of any liens having priorily over or equal 1o the interest of Lender under this Mortgage, excepl Ior th;3se liens specifically agreed Io in wriling by Lender, and excepl for the lien of taxes and assessmenls not due as further specified in the Righl Io Cohtesl paragraph. Right Io Conlesl. Grantor may wilhhold payment of any tax, assessmenl, or claim in conneclion with a good faith dispute over the obligalion Io pay, so long as Lender's interest in the Property is not jeopardized. If a lien arises or is tiled as a resull'of nonpayment, Granlor shall wilhin fifteen (15) days after Ihe lien arises or, if a lien is filed, within fitteen (15) days aller Grantor has notice of the filing, secure the discharge of Ihe lien, or if requested by Lender, deposil with Lender cash or a sufficient corporate surety bond or other securily salisfaclory to Lender in an amount sufficient 1o discharge the lien plus.any cosls and reasonable attorneys' fees, or giber charges thal could accrue as a result ct a foreclosure or 5ale under lhe lien. In any contest, Grantor shall deiend ilself and Lender and shall satisfy any adverse judgment before enforcement againsl the Properly. Granlor shall name Lender as an additional obligee under any surety bond furnished in lhe contesl proceedings. Evidence of Payment. Grantor shall upon :demand furnish to Lender satisfaclory evidence ct payment of the taxes or assessments and shall authorize'the appropriate governmental ~ffidial to deliver to Lender at any time a written stalement gl the taxes and assessments against the Property. Notice of Construction. Grantor shall notifY' Lender al least fifteen (15) days before any work is commenced, any services are furnished, or any materials are supplied Io the Properly, it ~ny mechanic's lien, malerialmen's lien, or olher lien could be asserled on account of the work, services, or materials. Grantor will upon request of Lender furnish to Lender advance assurances salisfaclory to Lender that Granlor can and will Pay lhe cost of such improvements. PROPERTY DAMAGE INSURANCE. The follo~wing provisions relating 1o insuring lhe Property are a part of lhis Mortgage: Malnlenance of Insurance. Granlor sh~!ll procure and maintain policies of tire insurance wilh slandard exlended coverage endorsemenls on a replacemenl basis for lhe full insurable va ue covering all Improvemenls on Ihe Real Properly in an amount sufficient Io avoid applicalion of any coinsurance clause, and wilh a standard mortgagee clause in favor ct Lender. Policies shall be wrilten by such insurance companies and in such form as may be reasonably acceptable.to Lender. Grantor shall deliver 1o Lender certificales of coverage from each insurer containing a stipulation thai coverage will nol be cance~lled or diminished wilhoul a minimum of ten (t0) days' prior written nolice to Lender and not containing any disclaimer of lhe insurer's liability for tailure lo give such notice. Each insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be ilmpaired in any way by any ecl, omission or detault gl Grantor or any olher person. Should the Real Properly be Iocaled in an area designaled by lhe Director of lhe Federal Emergency Management Agency as a special flood hazard area, Granlor agrees 1o obtain and maintain Federal Flood Insurance, it available, wilhin 45 days alter'notice is given by Lender that the Property is Iocaled in a special flOOd hazard area, for the tull unpaid principal balance of the loan and any prior liens on the property securing lhe loan, up to lhe maximum policy limits set under the National Flood Insurance Program, or as otherwise required by Lender, and to maintain such insurance for the term of the loan. Applicalion of Proceeds. Grantor shall promptly notify Lender of any loss or damage 1o Ihe Property. Lender may make proof of loss if Grantor fails to do so within fitteen (15) days ct t~e casualty. Whether or not Lender's security is impaired, Lender may, at Lender's eleclion, receive and retain the proceeds of any insurance and,~ apply the proceeds to the reduction of the Indebledness, payment of any lien affeclin9 lhe Properly, or the restoration and repair ct the Property. If Lender elects to apply lhe proceeds to restoration and repair, Grantor shall repair or replace the damaged or destroyed Improvements ina manner Satisfactory to Lender. Lender shall, upon satisfactory proof ct such expendilure, pay or reimburse Granlor trom the proceeds for the reasonable cost of repair or resloration if Grantor is not in default under this Morlgage. 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 to pay any amount owing to Lender under Ihis Morlgage, then to pay accrued interest, and the remainder, if any, shall be applied to the principal balance of lhe Indebtedness. If Lender holds any proceeds alter payment in full of the Indebtedness, such proceeds shall be paid to Grantor as Grantor's inlerests may appear. LENDER'S EXPENDITURES. If Granlor fails ,(A) lo keep the Properly free ct all laxes, liens, security inlerests,-encumbrances, and other claims, (B) to provide any required insurance on the Property, or (C) 1o make repairs to the Property then Lender may do so. It any aclion or proceeding is commenced lhat would malerially affect Lender's interests in the Property, lhen Lender on Grantor's behalf may, but is not required Io, take any action that Lender believes to be appropriate to prole, ct Lender's interesls. All expenses incurred or paid by Lender for such purposes will lhen bear interesl al lhe rate charged under the Note from Ihe date incurred or paid by Lender to the date 0l repayment by Granlor. All such expenses will become a part ct the Indebtedness and, at Lender's option, Will (A) be payable on demand; (B) be added Io the balance of Ihe Note and be apportioned among and be payable with any installment payments itc become due during eilher (1) lhe term of any applicable insurance policy; or (2) Ihe remaining term of the Note; or (C) be treated as a balloon payment which will be due and payable al Ihe Nole's maturity. The Mortgage also.will secure paymenl ct these amounls. The rights provided for in this paragraph shall be in addilion to any other righls or any remedies to which Lender may be entitled on account of any default. Any such aclion by Lender shall not be construed as curing the default so as lo bar Lender trom any remedy that it otherwise would have had. WARRANTY; DEFENSE OF TITLE. The followin~ provisions relating lo ownership ct the Properly are a part ct Ibis Morlgage: Title. Granlor warrants that: (a) Grantor'holds good and marketable lille ct record 1o lhe Property in lee simple, Iree and clear of all liens and encumbrances other than lhose set fo~lh .in lhe Real Property description or in any lille insurance policy, title report, or final lille opinion Issued in favor of, and accepted by, Lender in conn.'ection wilh this Mortgage, and (b) Grantor has lhe full right, power, and authority Io execute and deliver Ibis Mortgage to Lender. Defense of Title. Subject to lhe excepli¢n in the paragraph above, Granlor wa.rrapls'and will forever defend the title to the Property against lhe lawful claims ct all persons. In the event any action or proceeding is commenced lhal questions Grantor's title?or~lhe interest of Lender under Ihls Mortgage, Granlor shall defend the acli0n at Grantor's expense. Grantor may be lhe nominal party in such proceeding, but Lender shall be entitled Io participate in lhe proceeding and io be represented in the proceeding by counsel of Lender's own choice, and Grantor will deliver, or cause to be delivered, to Lender such inslrumenls as Lender may requesl from lime to time to permil such participation. Compliance With Laws. Grantor Warrants that the Property and Granlor's use of lhe Property complies with all existing applicable laws, ordinances, and regulations of governmenlal aulhorities. Survival of Promises. All promises, agreements, and statements Grantor has made in this Mortgage shall survive the execulion and delivery ct this Mortgage, shall be continuing in naturle and shall remain in tull force and effect until such time as Borrower's Indebtedness is paid in lull. CONDEMNATION. The following provisions relati?g to condemnalion proceedings are a part of lhis Mortgage: Proceedings. If any proceeding in condemnation is filed, Grantor shall promplly notify Lender in writing, and Granlor shall promplly lake such steps as may be necessary lo defend thelaclion and obtain the award. Grantor may be the nominal party in such proceeding, bul Lender shall be entitled to participate in the proceeding and to be represented in lhe proceeding by counsel of its own choice, and Granlor will deliver or cause Io be delivered to Lender such inslruments .nd documentation as may be requesled by Lende? from lime to time to permit such participation. Loan No: 33046723 MORTGAGE ~'-' ~' '- 2 3 9 (Continued) O,~,..~,~.~ Page 3 Application of Net Proceeds. If all or any parl of the Property is condemned by eminent domain proceedings or by any proceeding or purchase in lieu of condemnation, Lender may at its eilecl on require that all or any portion of the net proceeds of the award be applied to lhe Indebtedness or the repair or restoralion of the Property. ;rl~e nel proceeds of the award shall mean Ihe award.after payment of all reasonable costs, expenses, and attorneys' fees incurred by Lender in cqnnect on wilh Ihe condemnation. IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating to governmenlal laxes, fees and charges are a part of this Mortgage: ' Current Taxes, Fees and Charges. upoh :request by Lender, Grantor shall execule such documents in addition to this Mortgage and iake whalever other action is requested by Lender to perfect and continue Lender's lien on lhe Real Property. Granlor shall reimburse Lender for all taxes, as described below, Iogether wilh all:expenses incurred in recording, perfecting or continuing lhis Mortgage, including wilhou/limilalion all laxes, fees, documentary slamps, and other charges for recording or registering this Mortgage. Taxes. The following shall conslilute taxes tgi. which this section applies: (1) a specific tax upon this type of Morlgage or upon all or any part of the indebtedness secured by lhis Mortgage;' (2) a specific tax on Borrower which Borrower is authorized or required to deduct from payments on the Indebtedness secured by this type of !Mortgage; (3) a tax on lhis lype of Morlgage chargeable againsl the Lender or the holder of Ihe Note; and (4) a specific tax on all or any portion of the Indebtedness or on payments of principal and interesl made by Borrower. Subsequent Taxes. If any lax to which thins Section applies is enacled subsequent to the date of Ibis Morlgage, this event shall have the same effect as an Event of Defaull, and Lender maylexercise any or all of ils available remedies for an Event of Delaull as provided below unless Granlor eilher (1) pays the lax before il becomes dglinquent, or (2) contests lhe tax as provided above in lhe Taxes and Liens section and deposits wilh Lender cash or a sufficient corporate surety 90nd or other security salisfaclory lo Lender. SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relaling lo this Modgage as a securily agreement are a part of this Mortgage: . Security Agreement. This instrument shall!c0nstitule a Security Agreement 1o Ihe exlent any of the Property conslitutes fixtures, and Lender shall have all of the righls of a secured party under the Uniform Commercial Code as amended from lime to lime. Security Interest. Up(~n request by Lende!~, Grantor shall take whatever aclion is requested by Lender to perfect and continue Lender's security inleresl in the Personal Property. In additioh io recording this Mortg'age in the real property records, Lender may, at any lime and withoul furlher authorization from Grantor, file executed counlerparts, copies or reproductions of this Mortgage as a financing statement. Grantor shall reimburse Lender for all expenses incurred in perfecting or continuing Ibis security interesl. Upon delault, Granlor shall not remove, sever or delach the Personal Property from the Property. Upon default, Grantor shall assemble any Personal Property nol affixed to lhe Property in a manner and al a place reasonably convenient to Grantor and Lender and make it available 1o Lender within Ihree (3) days after receipt gl wrillen demand from Lender to Ihe extent permitled by applicable law. Addresses. The mailing addresses of Grantor (debtor) and Lender (secured party) lrom which informalion concerning Ihe securily interest granled by this Mortgage may be obtained (ea~ch as required by the Unilorm Commercial Code) are as stated on the first page of this Mortgage. FURTHER ASSURANCES; ATTORNEY-IN-FACT, ]'he following provisions relating Io further assurances and altorney-in-facl are a part of Ibis Mortgage: ·: i 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, lo Lender 6r lo Lender's designee, and when requested by Lender, cause 1o be filed, recorded, refiled, or rerecorded, as the case may be, al such times and in such offices and places as Lender may deem appropriale, any and all such mortgages, deeds of trusl, security deeds, secur ty agreements, financing slalements, continuation statements, inslruments of further assurance, certificates, and other documents as may, in the sole iopinion of Lender, be necessary or desirable in order to ellecluale, complete, pertect, conlinue, or preserve (1) Borrower's and Grantor's obligations under the Nole, this Mortgage, and the Related Documenls, and (2) the liens and security inlerests created by this Mortgage as first aqd prior liens on lhe Property, whelher now owned or hereafter acquired by Grantor. Unless prohibiled by law or Lender agrees to lhe contrary ir~ wriling, Granlor shall reimburse Lender for all costs and expenses incurred in cOnnection wilh the mailers referred 1o in this paragraph. Attorney-in-Fact. If Granlor fails to do any of the things referred to in lhe preceding paragraph, Lender may do so for and in lhe name of Grantor and at Granlor's expense. For such purposes, Granlor hereby irrevocably appoinls Lender as Granlor's altorney-in-facl for lhe purpose ot making, executing, delivering, filing, recording, and doing all other Ihings as may be necessary or desirable, in Lender's sole opinion, to accomplish the mailers referred 1o in the preceding paragraph. FULL PERFORMANCE. If Borrower pays all the Iddebtedness when due, and otherwise performs all lhe obligations imposed upon Grantor under Ibis Morlgage, Lender shall execute and deliver Io Grantor a suitable satisfaclion of this Mortgage and suilable statements of termination of any financing statement on file evidencing Lender's security inleresl in the Rents and the Personal Property. Granlor will pay, if permitted by applicable law, any reasonable termination fee as delermined by Lender from time to time. EVENTS OF DEFAULT. At Lender's option, Gra[itor will be in default under this Mortgage if any of the following happen: Paymenl Default. Borrower fails to make a~ly paymenl when due under the Indebledness. Default on Olher Payments. Failure of Granlor wilhin lhe lime required by this Mortgage to make any payment for taxes or insurance, or any other paymenl necessary to prevent filing of or lo effect discharge of any lien. Break Olher Promises. Borrower or Grailtor breaks any promise made to Lender or fails lo perform promptly at the time and strictly in the manner provided in lhis Mortgage or in any agreement related to this Mortgage. Default In Favor of Third Parties. Should Borrower or any Granlor default under any loan, exlension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other credilor or person Ihal may malerially affect any gl Borrower's or any Granlor's property or Borrower's ability Io repay the Indebledness or Borrower's or Granlor's ability to perform Iheir respective obligalions under Ibis Mortgage or any related document. False Slalemenls. Any representalion or statemenl made or furnished Io Lender by Borrower or Grantor or on Borrower's or Grantor's behalf under this Mortgage or the Related Documents is false or misleading in any malerial respecl, eilher now or al Ihe time made or furnished. Defecllve Collalerallzallon. This Mortgage or any of the Related Documents ceases to be in iull force and effect (including failure of any collateral ~ document 1o creale a valid and perfected security inlerest or lien) at any time and tor any reason. Insolvency. The dissolution or termination of Ihe Trust, the insolvency of Borrower or Granlor, the appoinlment of a receiver for any part of Borrower's or Grantor's property, any assignment for the benetit of creditors, any type of credilor workout, or Ihe commencement ol any proceeding under any bankruptcy or insolvencY laws by or againsl Borrower or Grantor. Taking of the Properly. Any creditor or gcvernmental agency tries to take any ol the Property or any other ol Borrower's or Grantor's property in which Lender has a lien. This includes laking~ of, garnishing of or levying on Borrower's or Grantor's accounts with Lender. However, if Borrower or Granior dispules in good faith whether the claim on which the taking of the Properly is based is valid or reasonable, and if Borrower or Grantor gives Lender written nolice of the claim and furnishes Lender with monies or a surely bond salisfaclory to Lender to satisfy the claim, then this delault provision will no~ apply. Breach of Other Agreement. Any breach by Borrower or Grantor under the terms ol any other agreement between Borrower or Grantor and Lender that is not remedied within any grace period provided therein, including without limilalion any agreement concerning any indebtedness or other obligation of Borrower or Grantor Io Lender, whether existing now or later. Evenls Affecting Guarantor. Any of the preceding evenls occurs wilh respect to any guaranlor, endorser, surety, or accommodation party of any of the Indebledness or any guarantor, endorser, surety, or accommodation parly dies or becomes incompetent, or revokes or dispules lhe validity of, or liability under, any Guaranty of the Inc!ebtedness. In lhe evenl ota dealh, Lender, al ils option, may, bul shall not be required to, permit the guarantor's estate to assume unconditionally the obligalions arising under the guaranly in a manner satisfaclo~:y Io Lender, and, in doing so, cure any Evenl ol Default. Righl to Cure. If such a failure is curablE, and if Borrower or Granlor has not been given a notice of a breach of lhe same provision of this Mortgage wilhin the preceding twelve (12). months it may be cured (and no Event of Delauli wild have occurred)if Borrower or Granlor, afler Lender sends writlen nolice demanding cu~'e of such failure: (a) cures the failure within fifteen (15) days; or (b) if lhe cure requires more lhan fifteen (15) days, immediately initiates steps Sufficient to cure the failure and thereafter continues and compleles all reasonable and necessary steps sufficient ~o produce compliance as soon as reasonably practical. RIGHTS AND REMEDIES ON DEFAULT. Upop the occurrence of an Evenl o! Detaull and at any time thereafter, Lender, at Lender's oplion, may MORTG' 'GE OS9 11 ' ,',..4 0 Loan No: 33046723 (Continued) Page 4 exercise any one or more of lhe following rights and remedies, in addition Io any olher rights or remedies provided by law: Accelerate Indebtedness. Lender shall have the right al ils option wilhoul notice 1o Grantor 1o declare Ihe 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 part of Ihe Personal Property, Lender shall have all the righls and remedies of a secured party under the Uniform Commercial Code. Collecl Rents. Lender shall have the right, withoul notice Io Borrower or Grantor, ~o take possession of lhe Property, including during lhe pendency of foreclosure, whelher judicial or non-judicial, and collect Ihe Rents, including amounts past due and unpaid, and apply the net proceeds, over and above Lender's costs, .against the Indebledness. In lurtherance oi this right, Lender may require any lenant or other user of the Property to make payments of rent or use fees directly to Lender. If Ihe Ranis are collected by Lender, then Grantor irrevocably designates Lender as Granlor's atlorney-in-fact Io endorse instrumenls received in payment thereof in the name ol Grantor and to negotiate the same and collect the proceeds. Payments by tenants or otl~er users Io Lender in response lo Lender's demand shall salisfy the obligations for which Ihe payments are made, whether or not any proper grounds lot the demand existed. Lender may exercise ils rights under lhis subparagraph e thor n person, by agent, or through a recewer. Appoint Receiver. Lender shall have the right Io have a receiver appoinled 1o take possession ol all or any part of the Property, with lhe power to protect and preserve the Property, lo operalte the Property preceding foreclosure or sale, and to collect the Rents from the Property and apply the proceeds, over and above the cost ol the receivership, against the Indebtedness. The receiver may serve without bond if permitted by law. Lender's righl 1o the appoinlmenl of a receiver shall exist whether or not the apparent value ol the Property exceeds the Indebledness by a substantial amount. Employment by Lender shall nol disqualily a person from serving as a receiver. Judicial Foreclosure. Lender may oblain a judicial decree foreclosing Grantor's inlerest in all or any pad of the Property. Nonjudicial Sale. Lender may foreclose Grarlor's interesl in all or r~ any pad o! Ihe Property by non-judicial sale, and specitically by "power of sale" or "advertisemenl and sale" foreclosur~ as provided by stalute. Deficiency Judgment. If permilted by applicable law, Lender may oblain a judgment for any deficiency remaining in the Indebtedness due 1o Lender after applicalion of all amounts received from lhe exercise ol lhe rights provided in this seciion. Tenancy al Sufferance. It Grantor remains in possession ot the Property after the Property is sold as provided above or Lender otherwise becomes entitled Io possession ot the Property upon default of Grantor, Grantor shall become a tenant al sufferance ol Lender or the purchaser ol lhe Property and shall, at Lender's option, either (1) pay a reasonable renlal for Ihe use of the Property, or (2) vacate the Property immedialely upon the demand of Lender. Olher Remedies. Lender shall have all other tighls and remedies provided in this Mortgage or Ihe Note or available at law or in equity. Sale of Ihe Property. To the extent permitted by applicable law, Borrower and Grantor hereby waives any and all right to have lhe Property marshalled. In exercising its rig his and remedies, Lender shall be free Io sell all or any part of the Property logether or separately, in one sale or by separate sales. Lender shall be entitled to bid 'at any public sale on all or any portion of the Property. Notice of Sale. Lender will give Grantor reasonable notice ol 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 Ina Personal Property is to be made. Reasonable nolice shall mean notice given al leasl 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 ol lhe Real Property. Elecllon of Remedies. All of Lender's rights and remedies will be cumulalive and may be exercised alone or together. An eleclion by Lender to choose any one remedy will not bar Lender from using any other remedy. If Lender decides Io spend money or to perform any of Granlor's obligations under this Mortgage, after Grantor's failure lo do so, lhal decision by Lender will nol affect Lender's righl 1o declare Granlor in default and to exercise Lender'S remedies. Altorneys' Fees; Expenses, If Lender institutes any suit or action to enforce any of the forms of this Morlgage, Lender shall be enlilled 1o recover such sum as the court may adjudge reasonable as attorneys' fees at lrial and upon any appeal. Whether or nol any courl ac{ion is involved, and to the extent noi prohibi{ed by law, all reasonable expenses Lender incurs that in Lender's opinion are necessary at any time for the protection of Ils interest or the enforcement of its righls shall become a part of the Indebtedness payable on demand and shall bear interesl al the Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph include, wilhout limilalion, however subject Io any limils under applicable law, Lender's reasonable attorneys' fees and Lender's legal expenses whelher or not there is a lawsuil, including reasonable attorneys' fees and expenses for bankruplcy proceedi,qgs (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipaled post-judgmenl collection services, lhe cost of searching records, obtaining title reports (including foreclosure reports), surveyors' reporls, and appraisal fees and title insurance, Io the extenl permilled by applicable law. Grantor also will pay any court costs, in addition Io all olher sums provided by law. NOTICES. Any notice required to be given under this Mortgage, including withoul limitation any notice of default and any nolice of sale shall be given in writing, and shall be etlective when actually delivered, when actually received by telefacsimile (unless olherwise required by law), when deposited with a nationally recognized overnight courier, or, it mailed, when deposited in Ihe Untied States mail, as firsl class, certified or registered mail poslage prepaid, directed to the addresses shown near 'the beginning of this Mortgage. All copies of notices of foreclosure from the holder of any lien which has priority over this Mortgage shall be sen{ lo Lender's address, as shown near Ihe beginning of Ibis Mortgage. Any person may change his or her address for notices under this Mortgage by giving Iormal written notice to the olher person or persons, specifying that the purpose of the notice is to change the person's address. For notice purposes,. Granlor agrees to keep Lender inlormed at all limes of Grantor~s current address. Unless otherwise provided or required by law, if there is more than one Granior, any notice given by Lender 1o any Grantor is deemed lo be nolice given to all Grantors. Il will be Grantor's responsibility to tell the 0thers?f the notice Irom Lender. MISCELLANEOUS PROVISIONS. The followinr~ miscellaneous provisions are a part ot Ihis Morlgage: .. Amendmenls. What is written in this Mortgac~e and in the Related Documents is Granlor's entire agreement with Lender concerning the matters covered by this Mortgage. To be effective, any change or amendment lo this Mortgage musl be in writing and must be signed by whoever will be bound or obligated by Ihe change or amendment. Caption Headings. Caption headings in this Mortgage are for convenience purposes only and are not to be Used to inlerprel or define the provisions of this Modgage. Governing Law. This Mortgage will be governed by and interpreled in accordance with federal law and the laws of lhe Slate of Wyoming. This Mortgage has been accepted by Le~der in Ihe State of Wyoming. Choice of Venue. If there is a lawsuit, Grantor agrees upon Lender's request to submil to lhe jurisdiction of the courts of Teton County, State of Wyoming. Joinl and Several Liability. All obligaiions ol'Borrower and Granlor under this Mortgage shall be joint and several, and all references to Granlor shall mean each and every Grantor, and all references to Borrower shall mean each and every Borrower. This means thai each Borrower and Grantor signing below is responsible for all obligations in lhis Mortgage. No Waiver by Lender, Grantor understands Lender Will nol give up any of Lender's rights under lhis Mortgage unless Lender does so in writing. The facl that Lender delays or omils to exercise any right will nol mean Ihat Lender has given up lhat righL If Lender does agree in writing to give up one of Lender's rights, that does not mean Grantor will not have to comply with the other provisions of this Mortgage. Grantor also understands that if Lender does consent lq a request, thai does not mean that Granlor will not have to get Lender's consent again if the situation happens again. Grantor further understan~Js that just because Lender consents to one or more ot Granlor's requests, that does not mean Lender will be required to consent to any of Grantor's lulure requests. Grantor waives presenlmenl, demand for payment, prolesl, and notice of dishonor. Grantor waives all rights of exemption from execulion or similar law in the Property, and Granlor agrees thai Ihe righls of Lender in the Property under this Mortgage are prior to Granlor's rights while this Mortgage remains in effecl. Severability. If a court finds that any provision of this Mortgage is nol valid or should not be enforced, that fact by ilselt will nol mean thai the rest of this Mortgage will not be valid or enforced. Therefore, a court will enforce the rest of Ihe provisions of lhis Mortgage even if a provision of this Morlgage may be found to be invalid or unentorceable. Merger. There shall be no merger of the interest or eslale created by this Morlgage wilh any olher inlerest or eslale in the Properly al any lime held by or for the benefit of Lender in any capacity, without Ihe written consent, ot Lender. Successors and Assigns. Subjecl 1o any~limitations stated in this Mortgage on transfer of Granlor's inlerest, lhis Mortgage shall be binding upon and inure to the benefil of the parties, their successors and assigns. If ownership of the Property becomes vested in a person other than Grantor, Loan No: 33046723 MORTGAGE C' /[ ~ (Continued) (~.~,~,.~ · ~--z Page 5 Lender, without notice to Grantor, may~d'eal wilh Granlor's successors with reference to this Mortgage and the Indebtedness bY way of forbearance or extension without releasing Grantor from the obligations ot this Mortgage or liability under the Indebtedness. Time Is of the Essence. Time is of the ess.~nce in lhe performance of Ibis Morlgagel Waiver of Homeslead Exemption. GranlOr hereby releases and waives all rights and benefits of the homestead exemplion laws of the State of Wyoming as lo all Indebtedness secured by. this Mortgage. DEFINITIONS. The following words shall have lhe following meanings when used in this Mortgage: Borrower. The word ~'Borrower" means Cynlhia Engelstad and includes all co-signers and co-makers signing the Note. Environmental Laws. The words "Environi'nental Laws" mean any and all state, federal and local slalutes, regulations and ordinances relating to the protection of human health or the environment, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amer~ded~ ~,2 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorizaiion Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Maledals Transportation Acl, 49 U.S.C. Section 1801, el seq., the Resource Conservation and Recovery ACl, 42 U.S.C. SectJon 6901, et seq., or olher applicable state or federal laws, rules, or regulations adopled pursuant thereto. Event of Default. The words "Event o! Def~3ult" mean any of the events ot default set forth in lhis Mortgage in the events of default seclion of this Mortgage. ~ Grantor. The word "Grantor" means The Ci!nthia A. Engelstad Living Trust, dated February 1, 1999, and any amendmenls thereto. Guaranly. The word "Guaranty" means the guaranty from guarantor, endorser, surety, 'or accommodation party 1o Lender, including without limitation a guaranty of all or part of lhe Note. ~. Hazardous Substances. The words "Hazardous Substances" mean materials lhat, 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, treated, stored, disposed of, generated, manufactured, transported or olherwise handled. The words "Hazardous Subslances",are used in lheir very broadest sense and include without limitation any and all hazardous or toxic substances, malerials or waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances" also includes, wilhoul limitation, petroleum and petroleum by-products or any fraction thereof and asbestos. Improvements. The 'word "lmprovements"~ means all existing and future improvemenls, buildings, structures, mobile homes affixed on the Real Property, facilities, additions, replacements ~nd other construction on the Real Property. Indebledness. The word "Indebtedness" means all principal, interest, and other amounls, costs and expenses payable under ihe Note or Related Documents, together with all renewals of, extensions ol, modifications of, consolidations of and substitutions for the Note or Related Documents and any amounts expended or advanced ib~' Lender to discharge Grantor's obligations or expenses incurred by Lender to enforce Grantor's obligations under this Mortgage, together wilh iinterest on such amounts as provided in this Modgage. Lender. The word "Lender" means The Ja'ck;~on State Bank & Trust, its successors and assigns. The words "successors or assigns" mean any person or company thai acquires any interest in the Note. Morlgage. The word "Mortgage" means this I~lortgage between Grantor and Lender. Note. The word "Note" means the promissory note dated May 12, 2004, irt the original principal amount of $100,000.00 from Borrower to Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the promissory note or agreement. Personal Property. The words "Personal Property.' mean all equipment, fixtures, and other articles of personal property now or hereafter owned by Granlor, and now or hereafter attached or affixed 1o the Real Property; together with all accessions, parts, and additions to, all replacements of, and all substitutions for, any of such property; and together with all proceeds (including withoul limitation all insurance proceeds and refunds of premiums) from any sale or other disposition of the PrOperty. Property. The word "Property" means collectively Ihe Real Property and the Personal Property. Real Property. The words "Real Property, mean the real property, interests and rights, as further described in ~his Mortgage. Related Documents. The words "Related Documents" mean all promissory noles, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages,, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. Renls. The word "Rents" means all present and future rents, revenues, income, issues, royalties, profils, and other benefits derived from the Property. GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND GRANTOR AGREES TO ITS TERMS. GRANTOR: . . ~:Yynthia A// En{jel"stad~,/~ole , Tru.~e'"e~,. o~"' her /'successorS, In trust, under, the C~nth)a A. Engelstad /' Living Trusl, dated Febkt~y ~1, /'1999, and any [. amendments thereto ~ . . TRUST ACKNOWLEDGMENT · /I COUNTY OF l~"~',,'~ STATE OF I) COUNTY OF ~-~'~-'~ j~j.-- ,, ) ~(_ _ ~ COMk~SSION EXPIRES JUNE 7,200~ }} On this day of , 20 ~ ~ , before me, the undersigned Notary Public, personally appeared Cynthia A. Engelstad, Sole Trustee, or her successors in trust, under lhe Cynthia A. Engelstad Living Trust, dated Februa~ 1, 1999, and any amendmenls thereto, of The Cynthl~ A. Engelstad Living Trust, dated Februa~ 1, 1999, and any amendments thereto, and known {o me lo be an aulhorized trustee or agent of the trust that execuled the Mortgage and acknowledged lhe Mortgage to be Ihe free and voluntary acl and deed o~ the trust, by authority sel forlh in the Irust documents or, by aulhority of slatute, for lhe uses and purposes therein mentioned, and on oath sl~at he or she is~thorized to execute this Mortgage and in fact executed the Mortgage on behaff of lhe Irust.