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HomeMy WebLinkAbout900458RECORDATION REQUESTED BY: BANK OF IDAHO Channing Branch 1800 Channing Way PO Box 1487 Idaho Falls, ID 83404 WHEN RECORDED MAIL TO: BANK OF IDAHO Cbanning Branch 1800 Cbanning Way PO Box 1487 Idaho Falls, ID 83404 SEND TAX NOTICES TO: SALT RIVER HOMES, LLC PO BOX 3698 ALPINE, WY 83128 9 0 0 h. 5 8 SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY CONSTRUCTION MORTGAGE THIS MORTGAGE dated June 21, ?-:004, is made and executed between SALT RIVER HOMES, LLC, a Wyoming Limited Liability Company (referred tc',, below as "Grantor") and BANK OF IDAHO, whose address is 1800 Channing Way, PO Box 1487, Idaho Falls, ID 83404 (referred to below as "Lender"). GRANT OF MORTGAGE. For valuable consi,,~ration, Grantor mortgages and conveys to Lender all of Gran~or's right, title, and interest in and to the Iollowing described real properW, toge¢~er with all existing or subseqoently e~ected or affixed buildings, improvements and lixtures; all easements, rights of way, a(]d appurtenances; all water, water rights, watercourses and ditch rights (including stock in utilities with ditch or irrigation rights); and all other rights, royahi~s, and profits relating to the real property, including wi[bout limitation all minerals, oil, gas, geothermal and similar matters, (the "Real:property") located in LINCOLN County, State of Wyoming: LOT 180 IN NORDIC RANCHE~. DIVISION NO. 13, LINCOLN COUNTY, WYOMIN6 AS DESCRIBED ON THE OFFICIAL PLAT THEREOF The Real Property or its address is c~mrnonly known as 56 Gallup Drive, ETNA, WY 83118. cRoss-COLLATERALIZATION. In addition ~r:, the Note, ti)is Mortgage secures alt obligations, debts and liabilities, plus interest thereon, et BorroWer to Lender, or any one or more gl f.h'em, as well as all claims by Lender against Borrower or any one or more of them, whether now existing or hereafter arising, whether related:or unrelated to the porpose of tbu Note, who[bet voluntary or otherwise, whether due or not due, direct or indirect, determined or undetermin,~.~l, absolute or contin0ent, liquidated or unliquidated wbedler Borrower or Grantor may be liable individually or jointly with others, whether ol4',gated as guarantor, surety, accommodation parW or otherwise, and whether recovery upon such arno(]nts may be or hereafter may become I~arred by any statute gl~ limitations, and whether [he obligation to repay such arr~ounts may be or hereafter may become otherwise uner forceah Grantor presently assigns to Lender all of Gra}~tor's right, title, and interest in and to all present and future leases of the Property and all Rents from the Proper~y. In addition, Grantor grant; :to Lender a Uniform Commercial Code secudry interest in Hie Perso(]al Property and Rents. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT OF THE iNDEBTEDNESS AND (B) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THE NOTE, THE RELATED DOCUMENTS, AND THIS MOil;GAGE. THIS MORTGAGE IS GIVEr,' AND ACCEPTED ON THE FOLLOWING TERMS: GRANTOR'S WAIVERS. Grantor waives all d.ghts or defenses arising by reason of any "one action" or "anti-deficiency" law, or any other law which may prevent Lender from bringing any action against Grantor, inclucling a claim for deficiency to the extent Lender is otherwise entitled to a claim for deficiency, before or after Lender's commencement or completion of any foreclosure action, either judicially or by exercise gl a power of sale. GRANTOR"S REPRESENTATIONS AND WARRANTIES. Grantor warrants tl~at: (a) ti/is Mortgage is executed a't Borrower's request and not at the request of Lender; {b) Grantor has the f,~ll power, right, and authority to enter into this Mortgage and to hypothecate the Property; (c) the provisions of this Mortgage do not conflict with, or result in a default onder any agreement or other instrument binding upon Grantor and do not result in a violation of any law, regulation, cc:irt decree or order applicable to Grantor; (d) Grantor has established adequate means gl obtaining from Borrower on a continuing basis inform~;~ion about Borrower's financial condition; and (e) Lender has made no representation to Grantor about Borrower (including without limitation-;ile creditworthiness of Borrower). PAYMENT AND PERFORMANCE. Except as otl~etwise provided in this Mortgage, Borrower shall pay to t. ender all Indebtedness secured by this Mortgage as it becomes due, and Borrower a(]d Grantor shall strictly perform all Borrower's and Grantor's obligations under thi~ M(]rtgage. CONSTRUCTION MORTGAGE. This Mortgag.b is a "construction mortgage" fox' the purposes of Sections 9-334 and 2A-309 of the Uniform Commercial Code, as those sections ha_ve bee'n adopted by the State of Wyoming. POSSESSION AND MAINTENANCE OF THE '~ROPERTY. Borrower and Grantor agree that Borrower's an~l Grantor"s possession and use of tile Property shall be governed by the following F'0visions: Possession aed Use. Until the occurrence of an Event of Default, Grantor may (1) remain in possession and control of tile Property; (2) use, operate or manage [he Property; anJ (3) collect tile Bents from the Property. Duty to Maintain. Grantor shall maict~in the Property in tenantable condition and promptly perform all repairs, replacements, and mai(]tenance necessary to preserve its v'~:ue. 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, gent'.ration, manufacture, storage, treatment, d sposa, release or threatened release of any Hazardous Substance by any person on, under, a[-0ot or from tile Property; (2) Grantor has no knowledge of, or reason to believe that there bas been, except as previously disclosed to Mid acknowledge(] by Lender in writing, raj any breach or violation of any Environmental Laws, (b) any use, generation, manufacture, ~orage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the Property by any prio~ Owners or occupants of the Property,· or (c) any actual or threatened litigation or claims of any kind by any person relating to suchmatte¢s; and (3) Except as previously disclosed to and acknowledged by Lender in writing, (a) neither Grantor nor any tenant, contractor, age, t or other authorized user of the Property shall use, geoerate, manulacrure, store, treat, dispose of or release any Hazardous Substance o,, under, about or from the Property; and (b) any such activity shall be conducted ir] cornpliance with all applicable federal, state, and local laws, regulations and ordJna(]ces, including without limitation all Environmental Laws. Grantor authorizes Lender and its agents to ente' upon the Property to make such inspections and tests, at Grantor's expense, as Lender may deem appropriate to determine compliance 0f 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.t.e construed [o create any responsibility or liability on the part of Lender to Grantor or to any other person. The representations and war'.go[les contained herein are based on Grantor's due diligence in investigating the Property for Hazardous Substances. Grantor hereby' (1) releases and waives any future claims against Lender for indemnity or co~dribution in the event Grantor becomes liable for cleanu2 or other costs under any such laws; and (2) agrees to indemnify and hold harmless Lender against any and all claims, losses, liabi.iiies damages, penalties, and expenses which Lender may direcLly or indirectly sustain or suffer resulting from a breach of this section o~ the Mortgage or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release occurring prior to ?:renter's ownership or interest in the P~operty, whether or not the same was or should have been known to Grantor. The provisions of tit.!; section of the Mortgage, including the obligation to indemnify, shall survive the payment of the Indebtedness and the satisfaction and r~;onveyance of the lien gl this Mortgage and shall no[ be Mfected by Lender's acquisition of any interest in tile Property, whether by fore,;!osure or otherwise. Nuisance, Waste. Grantor shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any sUippJng of or waste on or to the Property or any portion of the Properw. Without limiting the generality of the foregoing, Grantor will not remove, or grant to any other party tile right to remove, any timber, ;r.erals (including oil and gas). coal, clay, scoria, soil, gravel or rock products without Lender's prior O ~ ~ () ~, ~ MORT GA GE ,,. ,) Loan ,No: 25414258 ' (Continued) ~ .... ~ 3 o Page 2 written consent. Removal of Improvements. Grantor sh~d~ not demolish or remove any Improvements from tbe Real Property withoot Lender's prior written consent. As a condition to the remove' replace such Improvements with Irnpro~ ameots of at least equal value. Lender's Right to Enter. Lender and Le;'der's agents and representatives may enter upon the Real Property at all reasonable dmesto allend to Lender's inlerests and to inspect the ~eal: Property for p'urposes o~ Gran[or's compliance with the terms and coodidons Gl ti]is Mortgage. Compliance with Governmental Require.mOots. Grantor shall promptly comply witl] all laws, or'dinances, and regulalions, now or hereafter in effect, of all governmental autboriti~: s applicable to the use or occupancy of the Property, incl~ding without limitation, the Americans With Disabilities Act. Grantor may cm~[est in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate appe IS, so long as Grantor has nodfied Lender in writing prior to doing so and so long as, in Lender's sole opinion, Lender's interests in the F operty are not jeopardized. Lender may require Grantor to post adequate security or a surety bond, reasonably satis[actory to Lender, to protect Lender's interest. Duty to Protect. Grantor agrees nei~he"'to abandon or leave unattended the Property. Grantor shall do all other acts, in addition [o those acts set forth above in this section, wk.~h from the character and use Gl the Property are reasonably necessary ~o protecl and preserve the Properw. CONSTRUCTION LOAN. If some or all o~ ~[he proceeds pt the 'loan creating the Indebtedness are to be used [o construct or complete construction of any Improvements on the ?c~:perty, the Improvements sh~ll be completed no later than the maturity date Gl the Note (or such earlier date as Lender may reaso~ably.estal:li~sh) and Grantor shall I~ay in lull ~1 costs and expenses in com~ectio,q wdh the work. Lender will disburse loan proceeds under such terms and condilions as Lender may deem reasonably necessary to insure zhat ~he inlerest created by ~his Mortgage shall have priority over all possibl~: liens, including tbose pi nla[e~'Jal suppliers and wo~krnen. Lende~ may ~equire, amo~g oJlle~ Ihmgs, diet disbursement requests be supported by ;eceipted bills, expense affidavits, waivers Gl liens, construcli0n progress reports, and such other documentation as Lender may reasonably re."t~est. TAXES AND LIENs. The followingprovso~,~ relating to the taxes and liensond]e Property are partolthisMortgage~ Payment. Grantor shall pay when due (:and in all events prior ~o delinquency) all taxes, payroll taxes, special taxes, assessments, water charges and sewer service charges lev~d against or on account pt the Property, and shall pay when due all claims lot work done on or for services rendered or material furnished the interest of Lender uoder this Mortg~g~, exc'ep[ for those liens Specifically agreed to in writing by Lender, and except lot the lien of taxes and assessments not due as further specified in the Right to Con[es~ paragral)h. Right to Contest. G~antor may wi[hh~'d payment of any tax, assessment, obligation to pay, so long as Lender's i~terest in the Property is not jeopardized. If a lien arises or is filed as a resuh Gl nonpaymenl, Grantor shall within fifteen (15) days after the lien arises o~, il a lien is filed, wilhin fifteen (15) days alter Granlor has notice Gl the filing~ secure lhe discharge satisfactory to Lender in an amount su:llcient to discharge the lien plus any costs and attorneys' tees, or other charges that could accrue as a result Gl a loreclosure or sale un:J(,~r the lien. In any contest, Grantor shall de[end itself and Lender and shall sadsJy any adverse judgment before enforcemeht against the contest proceedings. Evidence of Payment. Grantor shall upor; demand furnish to Lender satisfactory evidence olpayment of thoraxes or assessments and shall authorize the appropriate governmental.'c~ficial to delive~ to Lender at any time a written statement of the taxes and assessrnen~s against the Property. Notice 0f Construct on Grantor shall n)fify Lender atleast fifteen (15) days before any work is commenced, any services are furnished, or any materials are supplied to the Property, iJ any mechanic's lien, materialmen's lien, or other lien could be asse~ted on account of the work, services, or materials. Grantor ~ il~ upon request o[ Lender furnish to Lender advance assurances satisfactory to Lende~ that Grantor can and will pay the cost of such impro'/~::ments. PROPERTY DAMAGE INSURANCE. The follo~;~ing ~rovisions relating to insuring the Property are a part of this Mortgage: Maintenance of Insurance. Grantor sh~Jl'procure and maintain policies of fire insurance with standard extended coverage endorsements on a replacement basis for the Jull insurable v~lue cove~ing all Improverne~ts on the Real Proper~y in ~n amount suJlicient ~o ~void application of any coinsuragce clause, and with :J standard mortgagee clause in lavo~ Gl Lender. Grantor shall also procure and maintain comprehensive general liabitiw insuranc~ in such coverage amounts as Lender may request with Lender being n~med as additional iilsureds in such liability insurance policies. AddiLionally, Grantor shall maintain such other insurance, including but not limited to hazard, business interruption and boiler insurance as Leo.let may require. Policies sh~ll be w~itten by sucbinsurance companies and in such tom) as may be 'reasonably acceptable to Lender. Gra~tor shall deliver to Lender certificates pt coverage from each insurer containing a stipulation that coverage will not be cancelled or dimin;shed without a minimum Gl thirty (30) days' prior written notice to Lender and not containing any disclaimer Gl the insurer's liability for f.~iiure to give such notice. Each insurance policy ~lso shall include an eodorsement p~oviding that coveragein favor of Leoder will not be ~'mpaired in any way by any act, omission or default oiG~ntor o~ anyothe~ persoo. Should the Real Property be located in an area designa"ed by the Director of the Federal Emergency Management Agency as a special flood h~zard area, Grantor agrees to obtain and maint'ain Federal Flood Insurance, i[ available, within 45 days Mter notice is given by Lende~ that zhe Properw is located in a special flood hazard area,., for the full unpaid principal balance Gl the loan and any prior liens on the property securing loan, up to the maximum policy limits s~t under the National Flood Insurance Program, or as otherwise required by Lender, and to maintain such insurance for the term of the loan. ' Application of Proceeds. Grantor shall promptly notify Lender of any loss or damage to the Property. Lender may make proof Grantor fails to do so within fifteen (15~ days of the casualty. Whether or not Lender's security is impaired, Lende~ may, at LendePs election, receive and retain the proceeds; of any insurance and apply the proceeds to the reduction Gl the Indebtedness, payment of any lien affecting the Property, or the restorado: ~Jnd repair o[the Property. I1 Lender elects to apply the p~oceeds to restoration ~nd repair, Grantor shall repair or replace the damaged or qestroyed Improvements in a m~nner satisfactory to Lender. Lende~shall, uponsatisf~cteryproo[of such expenditure, pay or reimburse Gr~ ~tor [rom the proceeds [or the reasonable cost of repair or restoration il Grantor is not in default under this Mortgage. Any proceeds ~hich have not been disbursed within 180 days after their receipt and which Lender has not committed to the repair or restoration ~ ~ the Property shall be used lirst to pay any amount owing to Lender under this Mortgage, then to p~y accrued interest, and the remainde:, ~1 any, sh~ll be applied to the principal balance Gl the Indebtedness. If Lender holds any proceeds alter payment in full of the Indebtedness,, such proceeds shall be paid to Grantor as Grantor's interests may appear. Granto¢'s Report on Insura~zce. Upon r~quest o¢ Lender, however not more than once a year, Grantor shall furnish to Lender a report on each existing policy of insurance show ]9: (1) the name of the insurer; (2) the risks insured; (3) the amount Gl the policy; (4) the property insured, the then current repl~.;,:~ment value pt such property, and the manner of determining that value; and (5) the expiration date of the policy. Grantor sh~ll, upon r~quest of Lender, have an independent appraiser satisfactory to Lender detem]ine the cash value replacement cost of the Property. LENDER'S EXPENDITURES. Ilany action or )~oceedingis commenced thaz would materially aftect Lender's interest in the Propertyor ilGrantor fails to comply with any provision Gl this Mc.r:gage or any Related Documents, including but not limited to Grantor's failure to discharge or pay when due ~ny amounts Grantor is required to ~ischarge or pay under this Mortgage or any Related Documents, Lender on Grantor's behalJ may (but shall not be obligated to) take any acd(.g4hat Lender deems appropriate, including but not limited ~o discharging or paying all taxes, liens, security interests, encumbrances and other claims, at any time levied or placed on the Property and paying all costs for insuringj maintaining and preserving the Property. All soch expendi[ur,~¢incurred or paid by Lender for such purposes will then bear interest atthe rate charged under the Note [rom the date incurred or paid by Lend'~to the date of repayment by Grantor. All such expenses will become a part Gl the Indebtedness and, at Lender's option, will iA) be payable bn demand; (Bi be added to the balance of the Note and be apportioned among and be payable with any installment payments to become d,~e~during either (1) the term of any applicable insurance policy; or (2) the remaioing term oJ the Note; or (C) be treated as a balloon payme~t'.which will be due and payable at the Note's maturity. The Mortgage also will secure paymen[of these amounts. Such right shallbein addition~to, all other rights and remedies to which Lender maybe entitled upon Default. WARRANTY; DEFENSE OF TITLE. The follo~i?]g provisions relating to ownership pt the Property are a part of this Mortgage: Title. Grantor warrants that: (a) Grantor holds good and marketable title of record to the Property in fee simple, free and clear of all liens and encumbrances other than those set [~:~rtb in the Real Property description o¢ in any title insurance policy, title report, or final title opinion issued in favor of, and accepted by, Lo]der in connection with tbis Mortgage, and lb) Grantor has the full right, power, and authority to execute and deliver this Mortgage to Lender. Loan No: 25414258 MORTGAGE ,.. (Continued) "'" 8 3 ~ Page 3 Defense of Title. Subject to the exceptk;¢~ in the paragraph above, Grantor warrants and will forever defend tile title to the Property against the lawful claims of all persons. Inthe ~:~;ent any action or proceeding is commenced that questions Grantor's title or the interestol Lender under this Mortgage, Grantor shall def~nU the action at Grantor's expense. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate i~ '.ihe proceeding and to be represented in tile proceeding by counsel of Lender's own choice and .Grantor will deliver, or cause to be d~l!vered, to Lender such instruments as Lender may request from time to time to permit such participation. Compliance With Laws. Grantor warrar ~ that the Property and Grantor's use of the Property cor'nplies with all existing applicable laws, ordinances, and regulations of governmen,~al authorities. Survival of Representations and Warra~-t, ies. All representations, warranties, and agreements made by Grantor in this Mortgage shall survive the execution and delivery gl thi~ Mortgage, shall be continuing in nature, and shall remain in full force and effect until such time as Borrower's Indebtedness shall be paid in, f.JII. CONDEMNATION. The following provisions.~e[ating to Condemnation proceedings are a part of this Mortgage: Proceedings. If any proceeding in con~.~mnation is filed, Grantor shall promptly notify Lender in writing, and Grantor shall promptly take such steps as may be necessary to ~le[,.'~i~d the action and obtain the award. 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 its OWn choice, and Grantor will deliver or cause to be delivered to ~ender such instruments and documentation as may be requested by Lender from time to time to permit sucl~ participation. ". Application of Net Proceeds. If all (~}"a~iy part of the Property is condemned by eminent domain proceedings or by any proceeding or purchase in lieu of condemnation, Lend&'~' may at its election require that all or any portion of toe net proceeds of the award be applied to the Indebtedness or the repair or resto~'~ion of the Property. The net proceeds ot the award shall mean the award after paymem gl all reasonable costs, expenses, and attorn~','s' fees incurred by Lender in connection with the condemnation. IMPOSITION OF TAXES, FEES AND CHARGi'~$ BY GOVERNMENTAL AUTHORITIES. The following provisions relating to governrnental taxes, fees and charges are a part of this Mortgage Current Taxes, Fees and Charges. Up(~i: request by Lender, Grantor shall execute such documents in addition to this Mortgage and take whatever other .action is requested by Lard;der to perfect and continue Lender's lien on the Real Property. Grantor shall reimburse Lender for all taxes, as described below, together v~ith all expenses incurred in recording, perfecting or continuing this Mortgage, including without limitation all taxes, fees, documentary st i.mps, and other charges for recording or registering this Mortgage. Taxes. The following shall constitute taxgs to which this section applies: (1) a specific tax upon. this type 01 Mortgage or upon all or any part of the Indebtedness secured by tF~i Mortgage; (2) a specilic tax on Borrower which Borrower is authorized or required to deduct from payments on the Indebtedness secur, ed by tt~is type of Mortgage; (3) a tax on this type of Mortgage chargeable against tl~e Lender or tbe holder of the Note; and (4) a speci';:~c tax 0n all or any portion of toe Indebtedness or on payments of principal and interest made by Borrower. ' : Subsequent Taxes. If any tax to which, tlhis section applie~ is enacted subsequent to the date of this Mortgage, this event shall have the same effect as an Event of Defer,It, end'.[lender may exercise any or all of its available remedies for an Event of Default as provided below unless Grantor either (1) pays the tax 5efore it becomes delinquent, or (2J contests the tax as provided above in the Taxes and Liens section and deposits with Lender cash o~ :] sufficient corporate surety bond or other security satisfactory to Lender. SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to this Mortgage as a security agreement are a part of this Mortgage: Security Agreement. This instrument s~:all constitute a Security Agreement to toe extent any of the Property constitutes fixtures, and Lender shall have all of the rights of a se.;~ared party under the Uniform Commercial Code as amended from'time to time. Security Interest. Upon request by Lep~',erl ' Grantor shall take whatever action is requested by Lender to perfect and continue Lender's s~curityinterest in the Rents and Persor,!! Property: In addition to recording this Mortgage in the real property records, Leander may, at any time and without further autborization I 6m Grantor, file executed counterparts, copies or reprodoctJons Of this Mortgage as a financing statement. Grantor shall reimburse Lenc.~r for all expenses incurred in perfecting or continuing this security interest. Upon default, Grantor shall not remove, sever or detach the Pe sonal Property from the Property. Upon default, Grantor shall assemble any Personal Property not affixed to the Property in a manner and ~tla place reasonably convenient to Grantor and Lender and make it available to Lender within three (3) clays after receipt of written demand from Lender to the extent permitted by applicable law. Addresses. The mailing addresses of G.'~ntor (debtor) and Lender (secured party) from which information concerning the security interest granted by this Mortgage may be obtaiilad.. (each as required by the Uniform Commercial Code) are as stated on the first page of this Mortgage. FURTHER ASSURANCES;.ATTORNEY-IN-FAC'!,'. The following provisions relating to further assurances and attorney-in-fact are a part of this Mortgage: Further Assurances. At any time, and fr~m time to time, upon request of Lender, Grantor will make, execute and deliver, or will cause to be made, executed or delivered, to Lender o~ to Lender's designee, and when requested by Lender, cause to be filed, recorded, raffled, or rerecorded, as the case may be, at such'times and in such offices and places as Lender may deem appropriate, any and all such mortgages, deeds gl trust, security (leeds, sacuritv,agreernents, financing statements, continuation statements, instruments gl lurther assurance, certificates, and other documents as mat/; in the sole opinign o~ Lender. be necessary or desirable in order to effectuate, complete, perfect, continue, or preserve (1) Borrower's ~d Grantor's obligations under the Note, this Mortgage, and the Related Documents, and (2) the liens and security interests created by tl-l~s Mortgage as first and prior liens on the Property, whether now owned or herealter acquired by Grantor. Unless prohibited by law o~ L~:.nder agrees to the contrary in writing, Grantor shall reimburse Lender for all costs and expenses .incurred in connection with the matters r~lerred to in this paragraph. Attorney-in-Fact. If Grantor fails to do any of the things referred to in the preceding paragraph,-Lender may do so for and in tt~e name of Grantor and at Grantor's expense. For:such purposes, Grantor hereby irrevocably appoints Lender as Grantor's attorney-in-fact for the purpose of making, executing, deliverinF, filing, recording, and doing all other things as may be necessary or desirable, in Lender's sole opinion, to accomplish the matters refer~ .~d to in:the preceding paragraph. FULL PERFORMANCE. If Borrower pays allti.e Indebtedness when due, and otherwise performs all the obligations imposed upon Grantor under this Mortgage, Lender shall execute and deliver to Grantor a suitable satisfaction of this Mortgage and suitable statements of termination of any financing statemeni On file evidencing Lend::;~'s security interest in the Rents and the Personal Property. Grantor Will pay, if permitted by applicable law, any reasonable termination fe~:!as determined by Lender from time to time. EVENTS OF DEFAULT. Each of the following, ;at Lender's option, shall constitute an Event of Default under this Mortgage: Payment Default. Borrower fails to make any payment when due under the Indebtedness. Default on Other Payments. Failure of'(,L~::antor within the time required by this Mortgage to make any payment for taxes or insurance, or any other payment necessary to prevent I:'ling of or to eftect discharge o! any lien. Other Defaults. Borrower or Grantor fai~s to comply with or to perform any other term, obligation, covenant or condition contained in this .M°rtgage or in any of the Related Docurhents or to comply with or to perlorm any term, obligation,'coveoant or condition contained in any other agreement between Lender and Be.:i'ower or Grantor. Default in Favor of Third Parties. Shoulr~ Borrower or any Grantor default under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agree~"~ent, in favor of any other creditor or person that may materially affect any gl Borrower's or any Grantor's property or Borrower's ability % repay the Indebtedness or Borrower's or Grantor's ability to perform their respective obligations under this Mortgage or any related docui-~'ent. False Statements. Any warranty, repre:~ntation or statement made or furnished to Lender by Borrower or Grantor or on Borrower's or Grantor's behalf under this Mortgage 0~.':?he Related Documents is false or rnisleading in any material respect, either now or at the time made or furnished or becomes false or nq~leading at any time ti~ereafter. Defective Collateralization. This Mortg~3~ or any of the Related Documents ceases, to be in full force and effect (including failure of any collateral document to create a valid and i;erfected security interest or lien) at any time and for any reason. De,th or Insolvency. The dissolution or ~rmination of Borrower's or Grantor's existence as a going business, the insolve~cy of Borrower or MORTGAGE (Continued) LoanNo:25414258 Page 4 Grantor, the appointmeot of a receiver,for any part of Borrower's or Grantor's property, any assignment for the benefit of creditors, any type of creditor workout, or [he comn:]ahcemen[ of any proceeding under any bankruptcy or insolvency laws by or against Borrower or Grantor. Creditor or Forfeiture Proceedings. Cc, r~mencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by a:~? creditor of Borrower or Grantor or by any governmental agency against any property securing the Indebtedness. This includes a garnishn-~nt of any of Borrower's or Grantor's accounts, including deposit accounts, with Lender. However, [his Event of Default shall not apply if tileJre is a good faith dispute by Borrower or Grantor as to the validity or reasonableness Gl the claim which is the basis of the creditor or forf!~ture proceeding and il Borrower or Grantor gives Lender written notice of tl~e creditor or forfeiture proceeding and deposits with Lender mercies or a surety bond for the creditor or forfeiture proceeding, in an amount deterrnined by Lender, in its sole discretion, as being an adequat.,~ reserve or bond for the dispute. Breach of Other Agreement. Any breac'].by Borrower or Grantor under the terms of any other agreernent between Borrower or Grantor and Lender that is not remedied within arty grace period provided therein, including wi[bout limitation any agreement concerning any indebtedness or other obligation of Borr(:wer or Grantor to Lender, whether existing now or later. Events Affecting Guarantor. Any of th~' preceding events occurs with respect to any guarantor, endorser, surety, or accommodation party Gl any of the Indebtedness or any guarantor, endorser, surety, or accommodation party dies or becomes incompetent, or revokes or disputes the validity of, or liability under any Guarantyof'thelndebtedness. Adverse Change· A material adverse~ change occurs in Grantor's financial condition, or Lender believes the prospect of payment or performaoce of the Indebtedoess is imp.!',ired. Insect,[fry. Lender in good faith believe.', i;tself insecure· RIGHTS AND REMEDIES ON DEFAULT. Upenthe occurrence of an Event of Default and at any time thereafter, t_ender, at Lender's option, may exercise any one or more of the followi,/g rig/!s and remedies, in addition to any other righls o~ remedies provided by law: Accelerate Indebtedness. Lender shall :~i;ve the right at its option without notice to Grantor to declare the entire Indebtedness immediately due and payable, including any prepaym~:~t penalty which Grantor would be required to pay. UCC Remedies. With respect to ail or,~.y part of the Personal Property, Lender shall have all the rights and remedies of a seco[ed party under the Uniform Commercial Code Collect Rents. Lender shall have the richlY[, without notice to Borrower or Grantor, to take possession of the Property, including during the pendency of foreclosure, whether judicial or non-judicial, arid collect the Rents, including amounts past due and unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness. In furtherance of this right, Lender may require any tenant or other user of the Property to make payments.~l rent or use fees directly to Lender. lithe Rents are collected by Lender, then Grantor irrevocably designates Lender as Grantor's attornewiq fact [o endorse instruments received in payment thereof in the name of Grantor and to negotiate the same and collect the proceeds· F'ayments by tenants or other users to Lender in response to Lender's demand shall satisfy the obligations for which tile payments are made, whether or not any proper g~ounds for the demand existed. Lender may exercise its rights under this subparagraph either in perso~.,.by agent, or through a receiver. Appoint Receiver. Lender shall have tf;~.right to have a receiver appointed to take possession of ail or any part of tl~e Property, with the power to protect and preserve the Pr(,,perty, to operate the Property preceding foreclosure or sale, and to collect the Rents from the Property and apply the proceeds, over '.~d above [he cost of the receivership, against the Indebtedness. The receiver may serve without bond if permitted by law. Lender's rig.']'i to the app6intment of a receiver shall exist whether or not the apparent value o! the Property exceeds the Indebtedness by a subs[ant,O'! arnount. Employment by Lender shall not disqualiJy a person from serving as a receiver· Jodicial Foreclosure. Lender may ob[air' ~ judicial decree foreclosing Grantor's interest in all or any part of the Property· Nonjudicial Sale. Lender may foreclose 3(antor's interest in all or in any part of the Property by non-judicial sale, and specifically by "power of sale" or "advertisemeot and sale" for..'closure as provided by statute. Deficiency Judgment. !f permafit[ed by ~p~licable I~W, Lender may obtain a judgment for any deficiency remaining in the Indebtedness due to Lender after application Gl all amounts received from the exercise of tile rights provided in this section· Tenancy at Sufferance. If Grantor rem~!iins in possession of the Property after [he Property is 'sold as provided above or Lender otherwise becomes entitled to possession of the P';'operty upon default of Gtai]tor, Grantor shall become a tenant at sufferance of Lender or the purchaser of tile Property and shall, at :_ender's option, either (1) pay a reasonable rental for the use of the Property, or (2) vacate the Property immediately upon the demand of~ Lender. Other Remedies. Lender shall have all Grille[ rights and remedies provided in this Mortgage or the Note or available at law or in eqoity. Sale of the Property. To tile extent perm~,tted by applicable law, Borrower anti Grantor hereby waives any and all right to have the Property marshalled· In exercisin0 its rights and r~,m~edies, Lender shall be free to sell all or any part of tile Property together or separately, in one sale or by separate sales· Lender shall be: entitled to bid at any pubiic sale on all or any portion of the Property. Notice of Sale. Lender shall give Grant()[ reasonable notice o[lhe time anti place Gl any public sale of the Personal Property or of the time after which any private sale or other ir~tended disposition of the Personal Property is to be made. Reasonable notice shall mean notice given at least ten (10) days before the ,ir!lo of the sale or disposition. Any sale of the Personal Property may be made in conjunction with any sale of the Real Property. Election of Remedies. Election by Len~:!er to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Grantor under this Mortgage, after Grantor's failure to perform, shall not affect Lender's right to declare a default and ,exercise its remedies. Nothing under this Mortgage or otherwise shall be construed so as to limit or restrict the rights and remedies available, [o Lender following an Event of Default, or in any way to limit or restrict the rights and ability o1 Lender to proceed directly against Gra ~Ior and/or Borrower and/or against any other co-maker, guarantor, surety or endorser and/or to proceed against any other collateral dire :t~ly or indirectly securing the Indebtedness. Attorneys' Fees; Expenses. If Lender i~:stitutes any suit or action 'to enforce any of the terms of this Mort0age, Lender shall be eh[iliad 1o recover such sore as the court may adj,.dge reasonable as attorneys' fees at trial and ul]on any appeal. Whether or not any cou~t action is involved, and to the extent not prohibit.: d by law, all reasonable expenses Iender incurs that in [_ender's opinion are necessary at any time for the protection of its interest or the ~!.n~orcement of ifs rights shall become a part of the Indebtedness payable on demand and shall [)ear interest at the Note rate from the date of tile expenditure until repaid. Expenses covered by this paragraph include, without limitation, however subject to any limits under api:.li~able law, Lender's a[ton~eys' fees and Lender's legal exp. enses whether or' not there is a lawsuit, including attorneys' fees and expenses .for bankruptcy proceedings (including efforts .to modify or va,:ate any automatic stay or injunction), appeals, and any anticipated post-jodgr:~ent collection services, tile cost of searching records, obtaining ti[lo reports [including foreclosure reports), surveyors' rope[is, and apprai~;I fees and title insurance, to the extent permitted by applicable law. Grantor also will pay any · court costs, io addition to all other sum,. provided by law. NOTICES. Any notice required to be given L ~der this Mortgage, including without limitation any notice of default and any notice of sale shall be given in writing, and shall be effective wt~en (l~tually delivered, when actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized ove~ light courier, or, it m~iled, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to ['he addresses shown near the beginning of this Mortgage. All copies of notices of foreclosure from the holder of any lien which has priority ovt¢ this Mortgage shall be sent to Lender's address, as shown near the beginning of this Mortgage. Any party may change its address for notice's under this Mortgage by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the partyts address. For notice purposes, Grantor agrees to keep Lender informed at all tithes of Grantor's current address· Unless otherwise provided oi required by law, if there is more than one Grantor, any notice given by Lender to any G~antor is deemed to be notice given to alt Grantors. MISCELLANEOUS PROVISIONS. The followi](Li, miscellaneous provisions are a part of this Mortgage: Amendments. This Mortgage, together 'vtrith any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this MortgaEe!. No alteration of or amendment to ti]is Mortgage shall be effective unless given in writing and signed by tho party or parties sought to Ge charged or bound by the alteration or amendment. Annual Reports. If the Property is us~id for purposes Other than Grantor's residence, Grantor shall furnish to Lender, upon request, a certified statement of net dperating in~:ome received from the Proper[y during Grantor's previous fiscal year Lender sl~all require. "Net operating inooifne" shall mean all cash receipts from the Properly less all cash expenditures made in connection Loan No: 25414258 O'~(~j~4~i With tile operation of the Properly. MORTGAGE (Continued) Page 5 Caption Headings. Caption headings in ti:';!; Mortgage are for convenience purposes only and are not to be used to ,nterpret or define the provisions of this Mortgage. , ,. Governing Law. This Mortgage will be ge:yarned by, construed and enforced in accordance with federal law end the laws of the State of Idaho, except and only to the extent of .procedural matters related to the perfection and enforcement of Lender's rights and remedies against the Property, which matters shallh.), governed by the laws of the State of Wyoming. However, in tile eveqt that the enforceability or validity of a'W provision of this Mortga?? is challenged or questioned such provision shall be governed by wl~ichever applicable state or federal law would uphold or would enfor¢:;.: suctl challenged or questo~ed provson The loan tranaacton which ia evidenced by the Note ned ttlis Mortgage has 'been epphed for co~:~s~dered, approved and made, and all necessary loan document~ have been accepted by Lender in the State of Idaho. " Ct~oice of Venue. If there is a lawsuit,~:Grantor agrees upon Lender's request to submit to the jurisdiction of the courts o~ Bonneville County, State of Idaho. "~ Joint and Several Liability. All obligation's :of Borrower and Grantor under this Mortgage shall l)e joint and several, and all references to Grantor shall mean each and every Grant,~.% and all references to Borrower shall mean each and every Borrower. This means that each Borrower and Grantor signing below is ::L~sponsible for all obligations in this Mortgage. Where any one or more gl the parties is a corporation, parmership, limited liability c~:;mpany or similar entity, it is not necessary for Lender to ioquire into the powers of any of the officers, directors, partners, members, or. bther agents acting or purporting to act on tile entity's behalf, and any obligations made or created in reliance upon the professed ex~,~ise of such powers shall be guaranteed under this Mortgage. No Waiver by Lender. Lender shall, not, b~!deemed to have waived any rights under this Mortgage unless such waiver is given in writing and signed by Lender. No delay or omissi,?n oil the part of Lender in exercising any right shall operate as a waiver gl such right or any other right. A waiver by Lender of a prev;)sion of this Mortgage shall not prejudice or coostitute a waiver of Lender's right otl~erwise to demand strict compliance with that provis!"~:n or any other provision of this Mortgage. No prior waiver by Lender, nor any ~ourse of dealing between Lender and Grantor, shall .cons:ti[ute a waiver of any of Lender's rights or of any of Grantor's obligations as to any future transactions. Whenever the consent of L~nder is required under this Mortgage, the granting of such consent by Lender in any instance stlall not constitute continuing consent tc isubsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole disc.teflon of'iLender. Severability. If a court of competent juiisdictio'n finds any provision of this Mortgage to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make ihe offending provision illegal, invalid, or unenforceable as to any other circumstance. II feasible, the olfending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall be considered deleted fr'~m this Mortgage. Unless otherwise required by law, the illegality, invalidity, or unenforceability of any provision of this Mortgage shall not,affect the legality, validity or enforceability of any other provision of this Mortgage. Merger. There shall be no merger of the i~terestor estate created by this Mortgage with any otl~er interest or estate in the Property at any time held by or for the benefit of Lender in any capacity, without the written consent of Lender. Successors and Assigns. Subject to any limitations stated in this Mortgage on transfer of Grantor's interest, this Mortgage shall be binding upon and inure to tile benefit of the partie~i their successors and assigns. If ownership of the Property becomes vested in a person olher than Grantor, Lender, without notice to Gr~mtor, may deal with Granlor's successors with reference to tt~is Mortgage and the Indebtedness by way of forbearance or extension witilou-~,releasing Grantor from the obligations of this Mortgage or liability under the Indebtedness. Time is of the Essence. Time is of the ess )nce in the performance of this Mortgage. Waiver of Homestead Exemption. Grantor ~';ereby 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 followir~g capitalized words, ~nd terms shall have the following meanings when used in this Mortgage. Unless specifically stated to the contrary, all references to dollar a"~ount~ shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, audi, he plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Mortgage shall have the meanin/2s attributed to such terms in the Uniform Commercial Code: Borrower. Tile word "Borrower" means S.t~LT RIVER HOMES; LLC; ROSEWOOD BUILDERS, INC.; LAURENCE B. REINHART; and JOSEPH F. BELLOFF and includes all co-signers and co-makers signing the Note. Default. The word "Default" means the D~; tault set fortt~ in tiffs Mortgage in the section titled "Default". Environmental Laws. The words "Enviro~';~nental Laws" mean any and all state, federal and local statutes, regulations and ordinances relating to the protection of human healtt .or the environment, including without limitation tile Comprehensive Environmental Response, Compensation, and Liability Act of 19BO,~as amended, 42 U.S.C. Section 9601, et seq. ("cERCLA"), the Superlund Amendments and Reauthorization Actor 1986, Pub. L. No. ,~ cJ-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery 'Act, 42 U.S.C. Section 6901 et seq., or other applicable state or federal laws, rules, or regulations adopted pursuant thereto. Event of Default. The words "Event of Default" mean any of the events of default set forth in this Mortgage in the events of default section of this Mortgage. Grantor. The word "Grantor" means SA[~] t;tlVER HOMES, LLC. Guaranty. The Word "Guaranty" means the guaranty from guarantor, endorser, surety, or accommodation party to Lender, including without limitation, a guaranty of all or part *.I the Note. Hazardous Substances. The words "Haz~lrdous Substances" mean materials that, because of their quantity, concentration or physical, chemical or infectious characteristics, m.w cause or pose a present or potential hazard to'human health or the environment when improperly used, treated, stored, dispose0 of, generated, manufactured, transported or otherwise handled. -the words "Hazardous Substances" are used in their very broades,~, sense and include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed under the Em, i~onmentalLaws. Theteml "Hazardous Substances" also includes, without limitation, petroleum and petroleum by--products or any fraction ti ereof and asbestos. Improvements. The word "Improvements' means all existing and future improvements, buildings structures, mobile homes affixed on tile Real Property, facilities, additions, replacen~ents and other construction on tile Real Property. Indebtedness. The word "Indebtedness" rh'eans all principal, interest, and oIher amounts, costs and expenses payable under the Note or Related Documents, together with afl renewals of, extensions of, modifications of, consolidations of and substitutions for the Note or Related Documents and any amounts expo ~ded or advanced by Lender to discharge Grantor's obligations or expenses incurred by t_ender to enforce Grantor's obligations under this Murtgage, together with interest on such amounts as provided in this Mortgage. Specifically, without limitation, Indebtedness ]c udes~ all amounts that may be indirectly secured by the Cross-Collateralization provision of Ibis Mortgage. Lender. The word "Lender" means BANK OFIDAHO, its successors and assigns. Mortgage. The word "Mortgage" means iii5 Mortgage between Grantor and Lender. Note. The word "Note" means the promissory note dated June 21, 2004, in the original priqcipal amount of $137,048.20 from Borrower to Lender, together with all renewals ol, extensions of, modifications ut, refinancings of, consolidations of, and substitutions for tile promissory note or agreement. The',.i~aturity date of this Mortgage is February 15, 2005. NOTICE TO GRANTOR: THE NOTE CONTAINS A VARIABLE INTEREST RATE. Personal Property. The words "personal [.'r!~l)erty" mean all equipment, fixtures, and other articles of personal property now or hereafter owned by Grantor, and now or hereafter ~'~lached or affixed to the Real Property; together with all accessions, parts, and additions to, all replacements of, arid ail substitutions for, ,any of such property; and together with all proceeds (including without limitation all insurance proceeds arid refunds of premiums) from a~:;y sale or other disposition ut the Property. Property. The word "Property" means colP~tively tile Real Property and the Personal Property. Real Property. The words "Real Property" ':T~ean the real property, interests and rights, as further described in this Mortgage. · Related Documents. The words "RelaterS, Documents" mean all promissory notes, credit agreements, loan agreements, environmental {}~0~5~i MORTGAGE Loan No: 25414258 (Continued) Page 6 agreements, guaranties, security agreements, mortgages, deeds o! trust, security deeds, collateral mortgages, and all other mnstruments, agreements and docuolen[s whether now ~ hereafter existing, executed in connection with the Indebtedness. Rents. The word "Rents" means all pres~r~t and future rents, revenues, ncome issues, royalties, profits, and other benefits derived from the Property. GRANTOR ACKI//C~C~LEDG,E~/FtAVlNG I~EAD ~L,L THE PROVISIONS OF THIS MORTGAGE. AND GRANTOR AGREES TO mTS TER~S. GRANTOR~//' ~[//~ //-~///~'- / %' ' --/ SALT RI~ STATEOF ~* _. ) COUNTY OF_ } appeared LAURENCE B. REINHART, Member; .'~OSEPH F. BELLOFF. Member of SALT RIVER HOMES, LLC, and known [o me ~o be members or desionated agents of the limited lability companytha~ executed the Mortgage and acknowledged the Mortgage[o be the free and voluntary and deed of the limited liability company, by authority of statute, mfs articles gl organiza[mon or ~ts operaung aOreemem, for the uses and purposes thereio mentioned and on Oalh stat['d that they are ~k~l~tl~,¢o exucu[~ d~is Mortgage and io fact executed the Mortgaoe on behalf of the limited liability company - x~k~' ~ : ~ ~ ~ ; ~-~- -