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HomeMy WebLinkAbout900385RECORDATION REQUESTED BY: First Interstate Bank Jackson Downtown Branch 842 West Broadway P. O. Box 11095 Jackson, WY 83002-1095 WHEN RECORDED MAIL TO: First Interstate Bank Jackson Downtown Branch 842 West Broadway P. O. Box 11095 Jackson, WY 83002-1095 SEND TAX NOTICES TO: Lee Kunkle Charlene Kunkle 10950 N LA Canada Dr. APT 19205 Tucson~ AZ 85737-5961 900385 REGEIVF[) 'LIHCOLN ~,r ~.~,-',.' C. LEI~i', 559a ' 644 SPACE ABOVE THIS LINE IS F0.R RECORDER'S USE ONL. Y. First Interstate Bank CONSTRUCTION MORTGAGE MAXIMUM LIEN. The lien of this Mor,:gage shall not exceed at any one time $45,000.00. THIS MORTGAGE dated June 11, ~04, is made and executed between Lee Kunkle and Charlene Kunkle, husband and wife, whose address i.~' 10950 N LA Canada Dr. APT 19205, Tucson, AZ 85737-5961 (referred to below as "Grantor") and First Intersbr:e Bank, whose address is 842 West Broadway, P. O. Box 11095, Jackson, WY 83002-11:)95 (referred to below as 'Lender"). GRANT OF MORTGAGE. For valuable consideration, Grantor mortgages and conveys to Lender all of Grantor's right, title, and inlerest in and to the following described real property, togetner with all existing or subsequently erected or affixed buildings, improvements and fixtures; all easements, rights ol way, and appurtenances; all water, water ~:i(.jhts, watercourses and ditch rights (including stock in utilities with ditch or irrigation rights); and all other rights royalties, and profits relating to me re~, property, including without limitation alt minerals, oil, gas, geothermal and similar matters, (the "Real Property") located in Lincoln County, State o! Wyoming: Lot 66 of Star Valley Ranch Plat '!:~, Lincoln County, Wyoming as described on the official plat tereof. The Real Property or its address is commonly known as 580 Alpine Way, Thayne, WY 83127. The Real Property tax identification number' is 12-3518-31-1-10-039.00 Grantor presently assigns to Lender all of Grantor's idght, title, and interest in and to all present and future leases of the Property and all Rents from the Property. In addition, Grantor grants to Lender a Uqiform 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 INI)EBTEDNESS AND (B) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THE NOTE, THE RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL pROPERTY, IS ALSO GIVEN TO SECURE ANY AND ALL OF GRANTOR'S OBLIGATIONS UNDER THAT CERTAIN CONSTRUCTION LOAN AGREEMENT BE'rWEEN GRANTOR AND LENDER OF EVEN DATE HEREWITH. ANY EVENT OF DEFAULT UNDER THE CONSTRUCTION LOAN AGREEMENT, OR ANY OF THE RELATED DOCUMENTS REFERRED TO THEREIN, SHALL ALSO BE AN EVENT OF DEFAULT UNDER THIS MOF~TGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: PAYMENT AND PERFORMANCE. Except as otherwise provided in this Mortgage, Grantor shall pay to Lender all amounts secured by this Mortgage as they become due and shall strictly perform all cl Grantor's obligations under this Mortgage. CONSTRUCTION MORTGAGE. This Mortgag~- is a "construction mortgage" for the purposes of Sections 9-334 and 2A-309 of the Uniform Commercial Code, as those sections have been adopted by the State of Wyoming. POSSESSION AND MAINTENANCE OF THE P!';13PERTY. 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, I~../ operate or manage the Property; and (3) collect the Rents from the Property. Duty to Maintain. Grantor shall maintain. ':he Property in good condition and promptly pedorm 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 Property, there has been no use, generat,on, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance by any person on, under, aboul or from the Property; (2) Grantor has no knowledge of, or reason to believe that there has been, except as previously disclosed to and ackd3wledged by Lender in writing, (a) any breach or violation of any Environmental Laws, (b) any use, · h' dis osa release or threatened release of any Hazardous Substance on, under, about or from the -t~reu%~n~sn~, ep erty or (c) any actual or threatened litigation or claim, s. of an.y, kin s~ ,teelna~tg. generation, manufa, cture, storage, f th Prol~ d.. by .any per PrO~Pu~ rty by any prior owners or ocu V ,.. .... ' .... .~ __,.__,.,~,4.,=,4 h,, lender in writino (al nei[ner ~ramor nor a y to ch matters' and (3) Except as prEwous~y dlscIoseo to anu ,~u...,-,..,~o- ~ 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 inspectiops and tests, at Grantor's expense, as Lender may deem appropriate to determine compliance of the Property with this section of the Mortgag ;.' Any inspections or tests made by Lender shall be for Lender's purposes only and shall not be construed to create any responsibility or lability on the part of Lender to Grantor or to any other person.' The representations and warranlies contained herein are based on Grantor's al,If; diligence in investigating the Property for Hazardous Substances. Grantor hereby (1) releases and waives any future claims against Lender b' indemnity or contribution in the event Grantor becomes able for cleanup or other costs under any such laws; and (2) agrees to indemnify ar.c hold harmless Lender against any and all claims, losses, liabilities, damages, penalties, and expenses which Lender may directly or indirectly sustain or suffer resulting from a breach ot this section of the Mortgage or as a consequence of any use, generation, manufacture, storage, disposal; release or threatened 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 indemnify, shall survive the payment of thb, Indebtedness and the satisfaction and reconveyance of the lien of this Mortgage and shall not be affected by Lender's acquisition of any interest in the Property, whether by foreclosure or otherwise. Nuisance, Waste. Grantor shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any stripping oi or waste on or to the Property or any portion of the Property. Without limiting the generality of the foregoing, Grantor will not remove, or 9rant to any other party the right to remove, any timber, minerals (inclL C lng oil and gas), coal, clay, scoria, soil, gravel or rock products without Lender's prior written consent. Removal of Improvements. Grantor sl~.ll not demolish or remove any Improvements from the Real Property without Lender's prior written consent. As a condition to the remora of ~ny Improvements, Lender may require Grantor to make arrangements satisfactory to Lender to replace such Improvements with Improvements of ~:t 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 to attend to Lender's interests and to inspect the Rea¢ F'roperty for purposes of Grantor's compliance with the terms and conditions of this Modgage. , i == (Continued) Compliance with Governmental Requin;r~ents. Grantor shall promptly comply with all laws, ordinances, and ragu ations now or hereafter in ordinance 0r regulation and withhold compliance during any proceeding, including appropriate effect, of all governmental authorities apl:lioable to the use or occupancy of the Property. Grantor may contest in good faith any Such law, appeals, so long as Grantor has notified Lender in writing prior to doing so and so long as, iniLender's sole opinion, Lender's interests in the Property are not jeopardized. Lender may require Grantor to post adequate security or a sur~t~ 'bond reasonably satisfactory to Lender, to protect Lender's interest. Duty to Protect. Grantor agrees neither k, i'zbandon or leave unattended the Property. Grantor shall do all other acts, in addition to those acts set forth above Jn this section, which from the character and use of the Property are reasonably necessary to protect and preserve the Properly. CONSTRUCTION LOAN. If some or all of the Ococeeds of the loan creating the Indebtedness are to be used to construct or Complete construction of any Improvements on the Property, the Improw:,nients shall be completed no later than the maturity date of the Note (or such earlier date as Lender may reasonably establish) and Granlor shall pa~ ~n full all costs and expenses in connection with the work. Lender will disburse loan proceeds under such terms and conditions as Lender may deerl i"easonably necessary to insure that the interest created by this Mortgage shall have priority over all possible liens, including those of material suppliers'; and workmen. Lender may require, among other things, that disbursement requests be supported by receipted bills, expense affidavits, waivers of !ions, construction progress repons, and such other documentation as Lender may reasonably request. DUE ON SALE -.CONSENT BY LENDER.. LelY)car r~ay at Lender's option dec are immed~ upon the sale or t~ansfer without Le'nd"er's nrior ',v;itt"'; ~'~ ....... ' - 'ately due and payable all sums secured by this Mortgage ' r. . : ~. ,.~,.~.t o~ a, or any part ct the Real Property or any interest in the Real Property. A "sale or transfer" means the conveyance of Real Prope:~tv or any right, title or interest in the Real Property; whether legal, beneficial or equitable; whether voluntary or involuntary; whether by outright sale' 8ced, installment sale contract, land contract, contract tot deed, leasehold interest with a term greater than three (3) years, lease,option contract, or b~' sale, ass gnment or transfer of any beneficial interest in or to any land trust holding title to the Real Property, or by any other method of conveyanc.~ 'of an interest in the Real Property. However, this option shall not be exercised by Lender if such exercise is prohibited by federal law or by Wyomih!] law. TAXES AND LIENS. The following provisions re"aling to the taxes and liens on the Property are part of this Mortgage: Payment. Grantor shall pay when due (and in all events prior to delinquency) all taxes, payroll taxes, special taxes, assessments, water charges and sewer service charges levied against )r on account of the Property, and shall pay when due all claims for work done on or for services rendered or material furnished to the PropertL Grantor shall maintain the Property free ct any liens having priority over or equal Io the interest of Lender under this Mortgage, except for the~Existing Indebtedness referred to in this Mortgage or those liens specifically agreed to in writing by Lender, and except for the lien of taxes and !'~.'!;sessments not due as further specified in tile Right to Contest paragraph. Right to Contest. Grantor may withhold p~yment of any tax assessment or claim in connection with a good faith dispule Over the obligation to pay, so Iong as Lender's interest in the Propl.grty is not jeopardized. If a lie~ arises or is filed as a result of nonpayment, Grantor shall within fifteen (15) days after the lien arises or, if a lien is 'lied, within fifteen (15) days after Grantor has notice of the filing, secure the discharge of the lien, or if requested by Lender deposit with Lender ca.sl~ or a sufficient corporat~ surety bond or other security satisfactory to Lender in an amount sufficient to discharge the lien plus any costs and rea's()nable attorneys' fees, or other charges that could accrue as a result of a foreclosure or sale under the lien. In any contest, Grantor shall deferldlitself and Lender and shall satisfy any adverse judgment before enforcement against tile Property. Grantor shall name Lender as an additional cb[igee under any surety bond furnished in the contest proceedings. Evidence of Payment. Grantor shall upon'.'c:emand furnish to Lender satisfactory evidence of payment of the taxes or assessments and shall authorize the appropriate governmental officia) to deliver to Lender at any time a written statement of the taxes and assessmenls against the Property. ,, Notice of Construction. Grantor shall notify Lender at least fifteen (15) days before any work is commenced, any services are furn shed, or any materials are supplied to the Property, if any mechanic's lien, materialmen's lien, or other lien could be asserted on account of the work, services, or materials and the cost exceeds $3,000.00.' 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 followihc, provisions relating to insuring the Property are a part of this Mortgage: Maln'tenar~c~ 'of "' ::' ' ' ' ' ' ' nsurance. Grantor shall p,ccure 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 mo~:gagee clause in favor of Lender. Policies shall be written by such insurance companies and in such form as may be reasonably acceptable to .L~)nder. Grantor shall deliver to Lender certificates of coverage irom each insurer containing a stipulation that coverage will not be cancelled cr 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 ;tie Director of the Federal Emergency Management Agency as a special flood hazard area, Grantor agrees to obtain and maintain Federal Flood I!qsurance, if available, within 45 days after notice is given by Lender that the Properly is located in a special flood hazard area, for the full unpaid orincipal balance of the loan and any prior liens on the property securing the loan, up to the maximum policy limits set under the National FJood Insurance Program, or as otherwise required by Lender, and to maintain such insurance for the term of the loan. ;. Application of Proceeds. Grantor shall p'o,mptly notify Lender of any loss or damage to the Property if the estimated cost of repair or replacement exceeds $3,000.00. Lender may: rlake proof of loss if Grantor fails to do so within fifteen (15) days of the casualty. Whether or not Lender's security is impaired, Lender may, at Lmder's'election, receive and retain the proceeds of any insurance and apply the proceeds to the reduction of the Indebtedness, payment of an~ den affecting the Property, or the restoration and repair of the Properly. If Lender elects to apply the proceeds to restoration and repair, Grantoi shall repair 'or replace the damaged or destroyed Improvements in a manner satisfactory to Lender. Lender shall, upon satisfactory proof of sucL, .~xpendJture, pay or reimburse Grantor from the proceeds for the reasonable cost of repair or restoration if Grantor is not in default under th~s Mortgage. Any proceeds which have not been disbursed within 180 days after their receipt and which Lender has not committed to the repai~:' Or restoration of the Property shall be used first to pay any amount owing to Lender under this Mortgage, then to pay accrued interest, and tt'e'remainder, j'f any, shall be applied to the principal balance of the Indebtedness. If Lender holds any proceeds after payment in full of the Indeb~e~Jness, such proceeds shall be paid to Grantor as Grantor's interests may appear. Compliance with Existing ndebtedness. D~.ri,~g the period in which any Existing Indebtedness described below is in effect, compliance with the insurance provisions contained in the instrumeqt' evidencing such Existing Indebtedness shall constitute compliance with the insurance provisions under this Mortgage, to the extent compliance with the terms of this Mortgage would constitute a duplication of insurance requirement. If any proceeds from the insurance become payable oi~ loss, the provisions in this Mortgage for division of proceeds shall apply only to that portion of the proceeds not payable to the holder of the E~isting Indebtedness. LENDER'S EXPENDITURES. If Grantor fails (A) Icl keep the Property free of all taxes, liens, security interests, encumbrances, and other claims, (B) to provide any required insurance On the Property,. (Ci to make repairs to the Property or to comply with any obligation to maintain Existing Indebtedness in good standing as required below, ~:hen Lender may do so. If any action or proceeding is commenced that would materially affect Lender's interests in the Property, then Lender on Gi'a"ltor's behalf may, but is not requ red to, take any action that Lender believes to be appropriate to protect Lender's interests. All expenses incurred or Faid 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 the date of r(payment by Grantor. All such expenses will become a pan 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 apportioned among and be payable with any installment payments to become due durng either (1) the term o~ any applicable insurance policy; or (2) the remaining term of the Note; or (C) be treated as a balloon payment which wil be due and payable at the Note's maturity. The Mortgage also will secure payment of these amounts. The rights provided for in this paragraph shall be in addition to any oth~;r'rights or any remedies to which Lender may be entitled on account of any default. Any such action by Lender shall not be construed as curing the c'efautt so as to bar Lender from any remedy th,at it otherwise would have had. WARRANTY; DEFENSE OF TITLE. The following Frovisions relating t0'O~nership of the Property are a part of this Mortgage: Title. Grantor Warrants that: (a) Grantor hold~ good and marketable title of record to the Property in fee simple, free and clear of all liens and encumbrances other than those set forth in the: F:lea Property description or in the Existing Indebtedness Section below or in any title insurance policy, title report, or final title opinion issued ih fa'vor of, and accepted by, Lender in connection with this Mortgage, and (b) Grantor has the full right, power, and authority to execute and delive; t:nis Mortgage to Lender. Defense of Title. Subject to the exception in the' paragraph above, Grantor warrants and will forever defend the title to the Property against the lawful claims of all persons. In the event any ac3ion or proceeding is commenced that questions Grantor's title or the interest of Lender under this Mortgage, Grantor shall defend the action at Grantor's expense. Grantor may be the 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 choice, and Grantor will deliver, or cause to be delivered, to Lender such instrumen.:.s~as Lender may Compliance With Laws. - Grantor warrants ftl.'~a~ the Property request from time to time to permit such participation. : and Grantor's use of the Property complies with all existing applicable laws, ; !. Page 2 MORTGAGE (Continued) ', ~ "'J~ ('~ Page 3 ordinances, and regulations of governmental ?t~:'.thorities. Survival of Promises. All promises, agreenl)ents, and statements Grantor has made in this Mortgage shall survive the execution and delivery of this Mortgage, shall be continuing in nature ar~tdl shall remain in full force and effect until such time as Grantor's Indebtedness is paid in full. EXISTING INDEBTEDNESS. The following provi.~ ions concerning Existing Indebtedness are a part of this Mortgage: Existing Lien. The lien of this Mortgage .~curing the indebtedness may be secondary and inferior to an existing lien. Grantor expressly covenants and agrees to pay, or see to the'pa/merit of, the Existing Indebtedness and to prevent any default on such indebledness, any default under the instruments evidenbing such indebt:.9(,ness, or any default under any security documents for such indebtedness. No Modification. Grantor shall not enter infb'any agreement with the holder of any mortgage, deed of trust, or other security agreement which has priority over this Mortgage by which that 'adreemect is modified, amended, extended, or renewed without the prior written consent of Lender. Grantor shall neither request nor accept any f~t.,~re advances under any such security agreement without the prior written consent of Lender. CONDEMNATION. The following provisions i;elati~'~c to condemnation proceedings are a part of this Mortgage: Proceedings. If any proceeding in condem~a'tion is filed, Grantor shall promptly notify Lender {n writing, and Grantor shall promptly take such steps as may be necessary to defend the actio3 and obtain the award. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and t~ I:,e represented 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 orany I:ia t of the Property is condemned by eminent domain proceedings or by any proceeding or purchase in lieu of condemna.tion Lender ~ay at its elec', on require that a or any portion of the net proceeds of the award be applied to the. Indebtedness or the repair or restoration of the Property. T~? net proceeds of the award shall mean the award after payment of all reasonable costs, expenses, and attorneys' fees incurred by Lender in con'~ection with the condemnation. IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating to governmental taxes, fees and charges are a part of this Mortgage: Current Taxes, Fees and Charges. Upon request by Lender, Grantor shall execute such documents in addition to this Modgage.and take whatever other action is requested by Lende;r :o perfect and continue 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 Mortgage, including without limitation all taxes, fees, documentary stamps, and other (~harges for recording or registering this Mortgage. Taxes. The following shall constitute taxes t'} 'which this section applies: (1) a specific tax upon this type of Mortgage or upon all or any part of the Indebtedness secured by this Mortgage;' (2) a specific tax on Grantor which Grantor is authorized or required to deduct from payments on the indebtedness secured by this type of Mortgage; (3) a tax on this type of Mortgage chargeable against the Lender or the holder of the Note; and (4) a specific tax on ell or any portion of. the Indebtedness or on payments of principal and interest made by Grantor. Subsequent Taxes, If any tax to which this section applies is enacted subsequent to the date of this Mortgage, lhis event shall have the same effect as an Event of Default, and Lender.ma'../t.~xercise any or all of its available remedies for an Event of Default as provided below unless Granior either (1) pays the tax before it becomes de~ir~quen[, or (2) contests the tax as provided above in the Taxes and Liens section and deposits with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender. SECURITY AGREEMENT; FINANCING STATEt, IENTS. The following provisions relating to this Mortgage as a security agreement are a part of this Mortgage: Security Agreement. This instrument shall constitute a Security Agreement [o the extent any of the Property constitutes fixtures, and Lender shall have all of the rights of a secured party unde~ tl~e Uniform Commercial Code as amended from time to time. Security Interest. Upon request by Lender, .6;.rantor shall take whatever action is requested By Lender to perfect and continue Lender's security interest in the Personal Proparty. In addition~ to recording this Modgage in the real property records, Lender may, at any t~me and without further authorization from Grantor, file executed countc, rparts, copies or reproductions of this Morlgage as a financing statement. Grantor shall reimburse Lender for all expenses incurred in perfectir~g,or continuing this security interest. Upon default, Grantor shall r~ot remove, sever or detach the Personal Property from the Propem/. Upon ( edault, Grantor shall assemble any Personal Property not affixed to the Property in a manner and at a place reasonably convenient to Grantor and Lender and make it available Io Lender within three (3) days after receipt of written demand from Lender to the extent permitted by applicable i Addresses. The mailing addresses of Gr~tn~or (debtor) and Lender (secured party) from which information concerning the security interest granted by this Mortgage may be obtained (e;~ch as required by the Uniform Commercial Cod e) are as stated on the first page of this Mortgage. FURTHER ASSURANCES; ATTORNEY-IN-FACT The following provisions relating [o further assurances and attorney-in-fact are a par~ of this Mortgage: Further Assurances. At any time, and from time to time, upon request of Lender Grantor wi! make, execute and deliver, or will cause to be made, executed or delivered, to Lender or t3 Lender's designee, and when requested by Lender, cause to be filed, recorded, fettled, or rerecorded, as the case may be, at such timgs and in such offices and places as Lender may deem appropriate, any and all such mortgages, deeds of trust, security deeds, security agree~nents, financing statements, continuation statements, ~nstruments of further assurance, certificates, and other documents as may, in the sole (~pi:~on of Lender, be necessary or desirable in order to effectuate, complete, perfect, continue, or preserve (1) Grantor's obligations under the Note, this Mortgage, and the Related Documents, and (2) the liens and security interests created by this Mortgage on the Property, whether now owned or hereafter acquired by Grantor. Unless prohibited by law or Lender agrees to the contrary in writing, Grantor shall reimburse Len,ler for all costs and expenses incurred in connection with the matters referred to in this paragraph. Attorney-in-Fact. If Grantor fails to do any of he 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 purpos,.~s, Grantor hereby irrevocably appoints Lender as Grantor's attorney-in-fact for the purpose ol making, executing, delivering, filing, recordin!'], and doing all other things as may be necessary or desirable in Lender's sole opinion, to accomplish the matters referred to in the preceding paragraph. FULL PERFORMANCE. If Grantor pays all the Ihdebtedness when due and otherwise performs all the obligations imposed upon Grantor under this Mortgage, Lender shall execute and deliver to Gr ~r'tor a suitable satisfaction of this Mortgage and suitable statements of termination of any financing statement on file evidencing Lender"s security interesl in the Rents and the Personal Property. Grantor will pay, it permitted by applicable law, any reasonable termination fee as determined by Lender. from time to time. EVENTS OF DEFAULT. At Lender's option, Grafter will be in default under this Mortgage if any of the following nappan: Payment Default, Grantor fails to make any payment when due under the Indebtedness. Default on Other Payments. Failure of Grantor within tl~e time required Dy this Mortgage to make any payment for taxes or ~nsurance, or any other payment necessary to prevent filing of or to effect discharge of any lien. Break Other Promises. Grantor breaks any promise made to Lender or fails to perform PrOmptly at the time and strictly in the manner provided in this Mortgage or in ~,ny agreement related to th!s Mortgage. Default in Favor of Third Parties. Should Grantor default under any loan, extension of 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 (:irantor's obligations under this Mortgage or any related document. False Statements. Any representation or s:a.ement made or furnished to Lender by Grantor or on Grantor's behalf under this Modgage or the Related Documems is false or misleading in/~ny material respect, either now or a[ the time made or furnished. Defective Collateralization. This Mortgage ~r: any of the Related Documents ceases to be in full force and effect (including failure of any collateral document to create a valid and perfected se~;ur'ity interest or lien) at any time and for any reason. Death or Insolvency. The death of Grant(')r, the insolvency of Grantor, the appointment of a receiver for any part of Grantor's property, any assignment for the benefit of creditors, any t~'p9 of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Grantor· Taking of the Property, Any creditor or goye.'nmental agency tries to take any of ~ne Property or any other of Grantor's property in which Lender has a lien· This includes taking of, garnishin!] of or levying on Grantor's accounts with Lender. However, il Grantor disputes in good faith whether the claim on which the taking of the Property i." based is valid or reasonable, and if Grantor gives Lender written notice of the claim and furnishes Lender with monies or a surety bond satisfac.'o'y to Lender to satisfy the claim, then this default provision will not apply. MORTGAGE (Continued) Page 4 Existing Indebtedness. The payment of .my installment of principal or any interest on the Existing indebtedness is not made within the time required by the promissory note evidencing s~Jch indebtedness, or a default occurs under the instrument securing such indebtedness and is not cured during any applicable grace period i'qr .~such instrument, or any suit or other action is commenced to foreclose any existing lien on the Property. ; 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 p~,~eding events occurs with respect to any guarantor, endorser, Surety, or accommodation party of any of the Indebtedness or any guarantor, endorse;r, surety, or accommodat on party dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Ind,.~btedness. Insecurity. Lender in good faith believes itself~ insecure. RIGHTS AND REMEDIES ON DEFAULT. Upon '!he occurrence'of an Event of Default and at any time thereafter but subject to any limitation in the Note or any limitation in this Mortgage, Lender, at ._ender'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: ;' i Accelerate Indebtedness. Lender shall ha~ei the 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 p)irt 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 Property, including during the pendency of foreclosure, whether judicial or non-judicial, and collect the Rents, including amounts past due and unpaid, and apply tile net proceeds, over and above Lender's costs, against the Indebtedr;ess. In fudherance of this right, Lender may require any tenant or other user of the Property to make payments of rent or use fees directly to Le.qd;er. 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 Ler'~dC.r 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 this subparagraph either in person, by agent, or through a receiver, i Appoint Receiver. Lender shall have the ri~lh~t to have a receiver appointed to take possession of all or any part of the Property, with the power to protect and preserve the Properly, to operal9 the Property preceding foreclosure or sale, and to collect the Rents from the Property and apply the proceeds, over and above the cost of the,re?eivership against the Indebtedness The receiver may serve without bond if perm tted b law Lender's right to the appointment of a rechiv~r, sha exist whether, or not the aooarent_, value of the Properly exceeds the Indebtednesso y by a substantial amount. Employment by Lender:shall not disqualify a person from serving as a receiver. Judicial Foreclosure. Lender may obtain s'ju.d c a decree foreclosing Grantor's interest in all or any part of the Property. Nonjudicial Sale. Lender may foreclose Grahtor's interest in all or in any part (~f the Property by non-judicial sale, and specifically by "power of sale" or "advertisement and sale" foreclosur,~ as provided by statute. Deficiency Judgment. If permitted by ap¢',licable law, Lender may obtain a judgment for any deficiency remaining in the Indebtedness due to Lender after application of all amounts recei~,ed from the exercise of the rights provided in this section. Tenancy at Sufferance. If Grantor remainsiin possession of the Property after tile Property is sold as provided above or Lender otherwise becomes entitled to possession of the Property upon default of Grantor, Grantor shall become a tenant at sufferance of Lender or the purchaser of the Property and shall, at Lender's opt::on:' either (1) pay a reasonable rental for the use of tile Property, or (2) vacate the Property immediately updn the demand Of Lender...;, , ~ Other Remedies. Lender shall have all oth~!.~r 'ights and remedies Provided in this Mortgage or the Note or available at law or in equity. Sale of the Property. To the extent permi~tt~d by applicable lawj Grantor hereby waives any and all right to have the Property marshalled. In exercising its rights and remedies, Lender ~hall be free to sell all or any part of the Property together or separately, in one sale or by separate sales. Lender shall be entitled to bid at any ou~lic sale on all or any portion of the Property. Notice of Sale. Lender will give Grantor r~;as, onab e notice of the time and place of any public sale of the Personal Property or of the time after which any private sale or other intended di.".pdsition 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. All of Lender's righ';s.~nd remedies will be cumulative and may be exercised alone or together. An election by Lender to choose any one remedy will not bar Lender from using any other remedy. If Lender decides to spend money or to pedorm any of Grantor's obligations under this Mortgage, after Grant_~r'::i failure to do so, that decision by Lender will not affect Lender's right to declare Grantor in default and to exercise Lender's remedies. ; Attorneys' Fees; Expenses. If Lender instltut;es any suit or action to enforce any of the terms of this Mortgage, Lender shall be entitled to recover such sum as the court may adjudge reasonabl'e as attorneys' fees at trial and upon any appeal. Whether or not any court action is involved, and to the extent not prohibited by law, all reascnable expenses Lender incurs that in Lender's opinion are necessary at any time for the protection of its interest or the enforcement of its rights sh~ll become a part of the Indebtedness payable on demand and shall bear interest at the Note rate from the date of the expenditure until repaidl Expenses covered by this paragraph include, without limitation, however subject to any limits under applicable law, Lender's reasonable attorneys'~,fees and Lender's legal expenses whether or not there is a lawsuit, including reasonable attorneys' fees after default and referral to an attorney/ nd.t Lender's salaried employee and expenses for bankruptcy proceedings (including efforts tO modily or vacate any automatic stay or injuoction),,iappeals, and any anticipated post-judgment collection services, the cost of searching records, obtaining title reports (including forectosur.~ ~eports), surveyors' reports, and appraisal fees and title insurance, to the extent permitted by applicable law. Grantor also will pay any co ~rt costs, in addition to all other sums provided by law. NOTICES. Any notice required to be given unde,r this Modgage, including without limitation any notice of default and any notice of sale shall be given in writing, and shall be effective when actually dglivered, when actually received by telelacsimiJe (unless otherwise required by law), when deposited with a nationally recognized overnight 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 of this Mortgage. All copies of notices of foreclosure from the holder of any lien which has priority over this Mortgage shall be sent to Ler,dePs address, as shown near the beginning of this Mortgage. Any person may change his or her address for notices under this Mortgage by givin;~ formal written notice to the other person or persons, specifying that the purpose of the notice is to change the person's address. For notice purp.oses, 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 oce Grantor, any notice given by Lender to any Grantor is deemed to be notice given to all Grantors. It wiJl be Grantor's responsibility to tell the others ~f .~he notice from Lender. MISCELLANEOUS PROVISIONS. The followin.c, miscellaneous provisions are a part of this Mortgage: Amendments. What is written in this Mortgage and in the Related Documents is Grantor's entire agreement with Lender concerning the matters covered by this Mortgage. To be effective an~ change or amendment to this Mortgage must be in writing and must be signed by whoever will be bound or obligated by [he change or amend~e~t. Caption Headings. Caption headings in '~his Mortgage are for convenience purposes only and are not to be used to interpret or define the provisions of this Mortgage. ; ~ Governing Law. This Mortgage will be g~:,verned by and interpreted in accordance with federal law and the laws of the State of Wyoming. This Mortgage has been accepted by Lende( in the State of Wyoming. Joint and Several Liability. All obligation¢i o~f Grantor under this Modgage shall be joint and several, and all references to Grantor shall mean each and every Grantor. This.means that eact-.=', Grantor signing be ow s responsible for all obligations in this Mortgage, No Waiver by Lender. Grantor understands (ender will not give up any of Lender's rights under this Mortgage unless 'Lendei does so 'in writing. The fact that Lender delays or omits to exerl;iS~a any right will not mean that Lender has given up that right. If Lender does agree in writing to give up one of Lender's rights, that does not "m~'an Grantor will not have to comply with the other provisions of this Mortgage. Grantor also understands that it Lender does consent to 'i~ rlequest, that does not mean that Grantor will not have to get Lender's consent again if the situation happens again. Grantor further Understand!, that· just because Lender consents to one or more of Grantor's requests, that does not mean Lender i MORTGAGE (Continued) ~" '~ ~ ~ 8 Page 5 will be required to consent to any of Grantor',s future requests. Grantor Waives presentment, demand for payment protest and notice of dishonor. Grantor waives all rights of exemption from,exeCution or similar law in the Property, and Grantor agrees that the rights of Lender il1 the Property under this Mortgage are prior to Grantor's r g,hts while this Mortgage remains in effect. Severability. If a court finds that any provis!'on ¢!f this Mortgage is not valid or should not be enforced, that fact by itself will not mean that the rest of this Mortgage will not be valid or enforce& Therefore, a court will enforce the rest of tile provisions of this Mortgage even if a provision of this Mortgage may be found to be invalid or uner, IOrc~;able, Merger. There shall be no merger of the w,~ere,';t or estate created by this Mortgage with any other interest or estate in the Property at any time held by or for the benefit of Lender in any ca~,)acit'y, without the written consent of Lender. Successors and Assigns. Subject to any I mita, tions stated in this Mortgage on transfer of Grantor's interest, this Mortgage shall be binding upon and inure to the benefit of the parties, their si.~cc~,ssors and assigns. If ownership of the Property becomes vested in a person other than Grantor, Lender, without notice to Grantor, may d~.al with Grantor's Successors with reference to this Mortgage and the Indebtedness by way of forbearance or extension without releasing Girantor from the obligations of this Modgage 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. Granto'- 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 Mortgage. DEFINITIONS. The following words shall have th=. roi owing meanings when used tn this Modgage: Borrower. The word "Borrower" means Le6 Kur,;kle and Charlene Kunkle and includes all co-signers and co-makers sigmng the Note. Environmental Laws. The words "Environmental LAWS" mean any and all state, federal arid local statutes, regulations and ordina'nces relating to the protection of human health or the enviro.lment, 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 Ma:eria,s Transportation Act. 49 U.S.C. Section 1801, et seq., tile Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other apl)licable state or federal laws, rules, or regulations adopted pursuant thereto. Event of Default. The words "Event of Def,'~ult"',mean any of the events of default set forth in this Mortgage in the events of default section of this Modgage. Existing Indebtedness. The words "Existin';i Indebtedness" mean the indebtedness described in the Existing Liens provision of this Mortgage. Grantor. The word "Grantor" means Lee Kunkle and Charlene Kunkle. Guaranty. The word "Guaranty" means the guaranty from guarantor, endorser, surety, or accommodation party to Lender, including without limitation a guaranty of all or pad of the Note, Hazardous Substances. The words "Hazardot. s 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, treated, stored, disposed of, generated, manufacturad, !,ransported or otherwise handled. The words "Hazardous Substances" are used in their very broadest sense and include without [imitatipn a~:~y and all hazardous or toxic substances materials or waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances"' also includes, w~thout 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 Proper[y, facilities, 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, e'(tensions of, modifications of, consolidations of and substitutions for the Note or Related Documents and any amounts expended or advanced by Lo. rider to discharge Grantor"s obligations or expenses incurred by Lender ~o enforce Grantor's obligations Under this Mortgage, together with intorest on such amounts as provided in this Mortgage. Lender. The word "Lender" means First biters'ate Bank, its successors and assigns. The words "successors or assigns" mean any person or company that acquires any u~terest in the Note. Mortgage. The word "Mortgage" means this Modgage between Grantor and Lender. Note. The word "Note" means the promissory note dated June 11 2004, in the original principal amount of $45,000.00 from Grantor to Lender, together with all renewals (~)f, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the promissory note or agreement, The maturit~ date of this Mortgage is September 11. 2004. Personal Property. The words "Personal Prop~)rty" mean all equipment, fixtures and other articles of personal property now or hereafter owned by Grantor, and now or hereafter attached o~ affiX<ed to the Real Property; togemer w~tn all accessions, parts, and additions to, all replacements of, and all substitutions for, any of such propeEy; a~d together with all proceeds (including without limitation all insurance proceeds and refunds of premiums) from any sale or other disposition of the Property. Property. The word "Property" means collectively the Real Properly and the Personal Property. Real Property. The words "Real Property" ¢'nean the real property, interests and rights, as further described in this Mortgage. Related Documents. The words "Relatgd Documents" mean all promissory notes, 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 Jn connection with lne Indebtedness. Rents. The word "Rents" means all pres6;nt ahd future rents revenues, income issues, royalties, profits, and other benefits derived from the Property. EACH GRANTOR ACKNOWLEDGES HAVINO READ ALL THE PROVISIONS OF THIS MORTGAGE, AND EACH GRANTOR AGREES TO ITS TERMS. GRANTOR: MORTGAGE , ~,~ ,~ (Continued) Page 6 INDIVIDUAL ACKNOWLEDGMENT ) SS COUNTY OF ~ CZ.t~,..) ) On this day before me, the undersigned 'Notary' Publ;c, personally appeared Lee Kunkle and Charlene Kunkle, to me known Io be me individuals described in and who executed the Mortgage, ar',d acl;nowledged tl~at they signed the Mortgage as their free and voluntary act and deed, for the uses and P u rP°~ es'/ttJ~feTr~2nenti°n ed' ~ ~d 6_ 20 ~~~_~and official seal this { day of t..J ~~'" ;:)~-} "fC)",'v'".-~<---ed c_~ My commission expires f ~ ' ~"-~:-ZOC3 ~7~