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HomeMy WebLinkAbout901605)925 RECORDATION REQUEST~=D BY: First Bank of Idaho, fsb, dba First Bank of the Tetons Jackson Office 170 E. Broadway P.O. Box 12860 Jackson, WY 83002 WHEN RECORDED MAIL TO: First Bank of Idaho, fsb, dba First Bank of the Tetons Jackson Office t70 E. Broadway P.O. Box 12860 Jackson, WY 83002 SEND TAX NOTICES TO: First Bank of Idaho, fsb, dba First Bank of the Tetons Jackson Office 170 E. Broadway P.O. Box 12860 Jackson, WY 83002 901605 RECEIVED LINCOLH COUNTY CLERK Oh- -3 d"l'lO: It2 SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY MORTGAGE THIS MORTGAGE dated July 30, 2004, is made and executed between Scott Harmon and Tamara Harmon, husband and wife (referred to below as "Grantor") and First Bank of Idaho, fsb, dba First Bank of the Tetons, whose address is 170 E. Broadway, P.O. Box 12860, Jackson, WY 83002 (referred to below as "Lender"). GRANT OF MORTGAGE. For valuable consideration, Grantor mortgages and conveys to Lender all of Grantor's right, litle, and interest in and lo the following described real property, [ogether with all existing or subsequen.tly erected or affixed buildings, improvements and fixtures; alt easemenls, rights of way, and appurtenances; all water, water rights, watercourses and ditch rights (including stock in utilities with ditcll or irrigation rights); and all other rights, royalties and profits relating to the real property, including without limitation all minerals, oil, gas, geothermal and similar matters, (the "Real Property") located in Lincoln County, State of Wyoming: Lot 124 in Star VAlley Ranch Plat 6, Lincoln County, Wyoming as described on the official plat thereof. The Real Property or its address is commonly known as 47 Vista Court, Thayne, WY 83127. REVOLVING LINE OF CREDIT. This Mortgage secures the Indebtedness Including, without limitation, a revolving line o1' credit, which obligates Lender to make advances to Grantor so long as Grantor complies with all the terms of the Credit Agreement. Such advances may be made, repaid, and remade from time to time, subject to the limitation that the total outstanding balance owing at any one time, not including finance charges on such balance at a fixed or variable rate or sum as provided in the Credit Agreement, any temporary overages, other charges, and any amounts expended or advanced.as provided In either the Indebtedness paragraph or this paragraph, shall nol exceed the Credit Limit as provided in the Credit Agreement. It is the intention of Grantor and Lender that thls Mortgage secures the balance outstanding under the Cred t Agreement from time to time from zero up to the Credit Limit as provided in this Mortgage and any intermediate balance. Grantor presently assigns to Lender all of Grantor's right, title, and interest in and Io all presenl and iuture leases of the Property and all Rents from the Property. In addition, Granlor grants to Lender a Uniform Commercial Code security interest in tile Personal Property and Rents. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT OF THE INDEBTEDNESS AND (B) PERFORMANCE OF EACH OF GRANTOR'S AGREEMENTS AND OBLIGATIONS UNDER THE CREDIT AGREEMENT, THE RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND · ACCEPTED ON THE FOLLOWING TERMS: PAYMENT AND PERFORMANCE. Except as otherwise provided in this Mortgage, Grantor shall pay to Lender all amounts secured by this Mortgage as they become due and shall strictly perform all of Grantor's obligations under this Mortgage. POSSESSION AND MAINTENANCE OF THE PROPERTY. Grantor agrees that Grantor's possession and use of tile Property shall be governed by the following provisions: Possession and Use. Until the occurrence of an Event of Default, Grantor may (1) remain in possession and control of the Property; (2) use, operate or manage tile Property; and (3) collect the Rents from the Property. Duty to Maintain. Grantor shall maintain the Property in good condition and prompHy pedorm all repairs, replacements, and mainlenance necessary to preserve its value. Compliance With Environmental Laws. Grantor. represents and warrants to Lender that: (1) During the period ol Grantor's ownership of lhe Property, there has been no use, generation, manufacture, storage, trealment, disposal, release or threatened release oi' any Hazardous Substance by any person on, under, aboul or from the Property; (2) Granlor has no knowledge of, or reason to believe that there has been, except as previously disclosed to and acknowledged by Lender in writing, (a) any breach or violation of any Environmental Laws, (b) any use, generation, manufacture, storage, treatment, disposal, release or threatened release ol any Hazardous Substance on, under, about or horn the Properly by any prior owners or occupanls of the Properly, or (c) any actual or threatened litigation or claims ol any kind by any person relating to such matters; and (3) Except as previously disclosed to and acknowledged by Lender in writing, (a) neither Grantor nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, manulacture, store, Ireat, dispose ct or release any Hazardous Substance on, under, about or from the Property; and (b) any such activity shall be conducted in compliance with all applcab e federal state, and local laws, regulations and ordinanbes, including without limitation all Environmental Laws. Grantor authorizes Lender and ils agents to enter upon the Property to make such inspections and tests, at Grantor's expense, as Lender may deem appropriate to determine compliance ct the Property with this section of the Mortgage. Any inspections or tests made by Lender shall be for Lender's purposes only and shall nol be construed to create any responsibility or liability on the part of Lender to Grantor or to any other person. The representations and wan-unties contained herein are based on Grantor's due diligence in investigating the Property for Hazardous Substances. Grantor hereby (1) releases and waives any future claims against Lender for indemnity or contribution in the event Grantor becomes liable for cleanup or other costs under any such laws; and (2) agrees to indemnify and hold harmless Lender against any and all claims, losses, liabilities, damages, penalties, and expenses which Lender may directly or indirectly sustain or suffer resulting from a breach of this seclion 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 tile obligation to indemnify, shall survive the payment of the Indebtedness and the satisfaction and reconveyance of the lien of this Mortgage and shall not be affected by Lender's acquisition of any interest in the Property, whether by foreclosure or oIherwise. Nuisance, Waste. Grantor shall not cause, conduct or permit any nuisance nor commil, permit, or suffer any stripping of or waste on or to the Property or any podion of the Properly. Without limiting the generality of the foregoing, Grantor will not remove, or grant to any other pa~ty the righl to remove, any timber, minerals (including oil and gas), coal, clay, scoria, soil, gravel or rock products without Lender's prior wdtten consent. Removal of Improvements. Grantor shall not demolish or remove any Improvements from the Real Property without Lender's prior wdtten consent. As a condition to the removal of any improvements, Lender may require Grantor to make arrangements satisfactory to Lender to replace such Improvements with Improvements.of at least equal value. Lender'S Right to Enter. Lender and Lender's agents and representatives may enter upon the Real Property at all reasonable times to attend to Lender's interests and to inspect the Real Property for purposes of Grantor's compliance with the terms and conditions of this Mortgage. Compliance w th Governmental Requirements. Grantor shall promptly comply with ali laws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable to the use or occupancy of the Property. Grantor may contest in good faith any such law, ordinance, or regulation and withhold compliance dur ng any proceeding, including appropriale appeals, so long as Granlor has notified Lender in writing prior to doing so and so long as, in Lender's sole opinion, Lender's interests in the Property are not jeopardized. Lender may require Grantor to post adequate security or a surety bond, reasonably satisfactory to Lender, to protect Lender's interest. MORTGAGE (Continued) ~. ~i,~ ~.'~ 7 G ~ ' Page 2 Duty to Protect. Grantor agrees neither to abandon or leave unattended the Properly. Grantor shall do all other acts, in addition to lhose acts set fodh above in this section, which from the character and use of the Properly are reasonably necessary to protecl and preserve the Properly. DUE ON SALE - CONSENT BY LENDER. Lender may, at Lender's option, declare immediately due and payable ali sums secured by this Modgage upon tl~e sale or transfer, without Lender's prior written consenl, of all or any part of the Real Properly, or any interest in the Real Properly. A "sale or transfer" means the conveyance of Real Properly or any right, title or interest in the Real Property; whether legal, beneficial or equitable; whether ~otuntary or involuntary; whetl~er by outright sale, deed, installment sale contract, land contract, contract for deed, leasehold interest with alerm greater than three (3) years, lease-option contract, or by sate, assignment, or transfer of any beneficial interest in or to any land trust holding title to the Real Property, or by any other method of conveyance of an inlerest in the Real Property. However, this option shall not be exercised by Lender if such exercise is prohibited by federal law or by Wyoming law. TAXES AND LIENS. The following provisions relating to tile taxes and liens on the Properly are part of this Mortgage: Payment. Granlor 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 or on account of the Properly, and shall pay when due all claims for work done on or for services rendered or material furnished to lhe Property. Grantor shall maintain the Property free of any liens having priority over or equal to the inlerest of Lender under lhis Modgage, except for the Existing Indebtedness referred to in this Modgage o~' those liens specifically agreed to in writing by Lender, and except for the lien of taxes and assessments not due as fudher specified in the Right to Contest paragraph. Right to Contest. Grantor may withhold payment of any tax, assessment, or claim in connection with a good faith dispute over the obligation to pay, so long as Lender's interest in the Property is not jeopardized. If a lien arises or is filed as a result ol nonpayment, Grantor shall within fifteen (15) days alter Ihe lien arises or, if a lien is filed, 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 cash or a sufficient corporate surety bond or other securily satisfactory to Lender in an amount sufficient. to discharge the lien plus any costs and reasonable attorneys' fees, or other charges that could accrue as a result of a foreclosure or sale under the lien. In any contest, Grantor shall defend itself and Lender and shall satisfy any adverse judgment belore enforcement against the Property. Grantor shall name. Lender as an additional obligee under any surety bond furnished in the contest proceedings. Evidence of Payment. Grantor Shall upon demand furnish lo Lender satisfactory evidence of payment ol the taxes or assessments and shall autliorize Ihe appropriate governmental official to deliver to Lender at any time a written statement ct the taxes and assessments against the Properly. Notice of Construction. Grantor shall notify Lender at least fifteen (15) days before any work is commenced, any services are furnished, or any materials are supplied to the Property, if any mechanic's lien, materialmen's lien, or other lien could be asseded on account of the work, services, or materials. Grar tor will upon request ol Lender furnish to Lender advance assurances satisfactory to Lender that Grantor can and will pay the cost of such improvements. PROPERTY DAMAGE INSURANCE' The following provisions relaling to insuring the Properly are a pad of this Mortgage: Maintenance of Insurance. Grantor shall procure and maintain policies of fire insurance with standard extended coverage endorsements on a replacement basis for Ihe full insurable value covering all Improvements on the Real Properly in an amount sufficienl to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of Lender. Policies shall be written by such insurance companies and in such form as may be reasonably acceptable to Lender. Grantor shall deliver to Lender certificates of coverage from each insurer containing a stipulalion that coverage will not be cancelled or diminished without a minimum of fifteen (15) 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 endorsemenl providing lhat 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 Ihe Real Property be located in an area designated by the Director of the Federal Emergency Management Agency as a special flood hazard area, Grantor agrees to obtain and maintain Federal Flood Insurance, if available, within 45 days after notice is given by Lender that the Property is located in a special flood hazard area, for the full unpaid principal balance of the loan and any prior liens on the property securing the loan, up to the rnaximum policy limits set under the National Flood Insurance Program, or as otherwise required by Lender, and to maintain such insurance for the term of the loan. Application of Proceeds. Grantor shall promplly notity Lender of any loss or damage to Ihe Properly. Lender may make 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, al Lender's election, receive and retain tile proceeds of any insurance and apply the proceeds to the reduction ol the Indebtedness, payment of any lien affecting the Properly, or the restoration and repair of the Property. If Lender elects to apply lhe proceeds to restoration and repair, Grantor Shall repair or replace the damaged or destroyed Improvemenls in a manner satisfactory to Lender. Lender shall, upon satisfactory proof of such expenditure, pay or reimburse Grantor from the proceeds for the reasonable cost of repair or resloration if Grantor is not in defaull under lhis Modgage. Any proceeds which have nol been disbursed within 180 days after their receipl and which Lender has not committed to lhe repair or resloration of the Property shall be used Iirst to pay any amount owing to Lender under this Mortgage, then to pay accrued interest, and the remainder, if any, shall be applied to the principal balance of the Indebledness. If Lender holds any proceeds after payment in full of lhe Indebtedness, such proceeds shall be paid to Grantor as Grantor's interests may appear. Compliance wilh Existing IndebtedneSs. During tile period in which any Existing Indebtedness described below is in effect, compliance with the insurance provisions conlained in the instrument evidencing such Existing Indebtedness shall constitute compliance with the insurance provisions under this Mortgage, to the extent compliance with the terms of this Modgage would constitute a duplication of insurance requirement. If any proceeds from the insurance become payable on loss, the provisions in this Mortgage for division of proceeds shall apply only to that podion of the proceeds hol payable Io the holder of the Existing Indebtedness. LENDER'S EXPENDITURES. If Grantor fails (A) to keep the Properly free of all taxes, liens, security interests, encumbrances, and other claims, (B) lo provide any required insurance on the Properly, (C) to make repairs to the Property or Io comply with any obligation to maintain Existing Indebledness in good slanding as required below, then Lender may do so. If any action or proceeding is commenced lhat would materially affect Lender's interests in Ihe Property, then Lender'on Grantor's behalf may, but, is not required to, take any action that Lender believes to be appropriate to protect Lender's interests. Alt expenses incurred or paid by Lendei' for such purposes will then bear interest at the rale charged under the Credit Agreement from Ihe date incurred or paid by Lender to tile date of repayment by Grantor. All such expenses will become a pad of the Indebtedness and, at Lender's option, will (A) be payable on demand; (B) be added to the balance of the Credit Agreement and be apportioned among and be payable with any inslallment payments to become due during either (1) the lerm of any applicable insurance policy; or (2) the remaining term of the Cred t Agreement; or (C) be treated as a balloon payment which will be due and payable at Ihe Credit Agreement's maturity. The Modgage also will secure payment of these amounts. The rights provided for in this paragraph shall be in addilion lo any other righls or any remedies to which Lender may be entitled on account of any default. Any such action by Lender shall not be conslrued as curing the default so as to bar Lender lrom any remedy that it otherwise would have had. WARRANTY; DEFENSE OF TITLE. The following provisions relaling to ownership of lhe Property are a pad of lhis Mortgage: Title. Grantor warrants that: (a) Grantor holds good and marketable title of record to the Proper~y in fee simple, free and clear of all liens and encumbrances other than those set fodh in the Real Properly description or in the Existing Indebledness section below or in any lille insurance policy, title report, or final title opinion issued in favor of, and accepted by, Lender in connection with this Modgage~ and (b) Grantor has the full righl, power, and authority to execute and deliver this Modgage to Lender. Defense of Title. Subjecl to the exception in the paragraph above, Grantor warrants and will forever defend the title to the Properly against the lawful claims of all persons. In the 0vent any aclion or proceeding is commenced that questions Grantor's title or the interest ol Lender under this Modgage, Grantor shall defend tile action at Grant6r's expense. Grantor may be the nominal party in such proceeding, bul Lender shall be enlilled to participate in the proceeding and to be represenled in the proceeding by counsel of Lender's own choice, and Grantor will deliver, or cause Io be delivered, 1o Lender such instruments as Lender may request from time to time to permit such padicipation. COmpliance With Laws. Grantor warrants that the Property and Grantor's use of lhe Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities. Survival of Promises. All promises, agreements, and statements Grantor has made in Ibis Modgage shall survive Ihe execution and delivery of this Modgage, shall be conlinuing in nature and shall remain in full force and effect until such time as Grantor's Indebtedness is paid in full. EXISTING INDEBTEDNESS. The following provisions concerning Existing Indebledness are a pad of this Mortgage: Existing Lien. The lien of this Modgage securing the Indebtedness may be secondary and inferior to an exisling lien. Grantor expressly covenants and agrees to pay, or see to the payment ol, the Existing Indebtedness and to prevent any default on such indebtedness, any default under the instruments evidencing such indebtedness, or any default under any security documents for such indebtedness. No Modification. Grantor shall not enter into any agreement with the holder of any modgage, deed of trust, or other security agreement which has priority over this Mortgage by which that agreement is modified, amended, extended, or renewed without the prior written consent of Lender. ' ' ,., '~ MORTGAGE Loan No: 494013006 (ContinUed)' Page 3 Grantor shall neither request nor accept any future advances under any such security agreement without the prior written consent of Lender. CONDEMNATION. The following provisions relating to condemnation proceedings are a part of th s Mortgage: Proceedings. If any proceeding in condemnation is filed, Grantor shall promptly notify Lender in writing, and Grantor shall promptly take such steps as may be necessary to defend the action and obtain the award. Grantor may be the nominal party in such proceeding, bul Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of its own choice, and Grantor will deliver or cause to be delivered to Lender such instruments and documentation as may be requested by Lender from time to time to permit such participation. Application of Net Proceeds. 'If all or any part of the Property is condemned by eminent domain proceedings or by any proceeding or purchase in lieu of condemnation, Lender may at its election require that all or any portion el the net proceeds of Ihe award be applied to tile Indebtedness or the repair or restoration of the Property. The net proceeds of the award shall mean the award after payment of all reasonable costs, expenses, and attorneys' fees incurred by Lender in connection with the condemnation. IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating to governmental 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 Mortgage and take whatever other action is requested by Lender toperfect 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 charges for recording or registering this Mortgage. Taxes. The following shall constitute taxes to which this section applies: (1) a specific tax upon this type of Moflgage 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 1o 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 el the Credit Agreement; and (4) a specific tax on all or any. portion of the Indebtedness or on payments of principal and inierest made by Grantor. Subsequent Taxes. If any tax to which this section applies is enacted subsequent lo Ihe date of this Modgage, this event shall have the same effect as an Event of Default, and Lender may exercise any or all of its available remedies for an Event of Default as provided below unless Grantor either (1) pays the tax before il becomes delinquent, 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 STATEMENTS. The following provisions relating to this Mortgage as a security agreement are a part of this Mortgage: Security Agreement. This instrumenl shall constitute a Security Agreement to the extent any of the Property constitutes lixtures, and Lender shall have all of the rights of a secured party under the Uniform Commercial Code as amended from time to time. Security Interest. Upon request by Lender, Grantor shall take whatever action is requested by Lender to perfect and continue Lender's security interest in the Personal Properly. In addition to recording this Mortgage in the real property records, Lender may, at any time and witl'~out further authorization from Grantor, file executed counterparts, copies or reproductions of this Mortgage as a financing statement. Grantor shall reimburse Lender for all expenses incurred in perfecting or continuing this security interest. Upon default, Grantor shall not remove, sever or detach the Personal Property from the Property. Upon default, Grantor shall assemble any Personal Property not affixed to the Properly in a manner and at a place reasonably convenient to Grantor and Lender and make it available to Lender within three (3) days after receipt of written demand from Lender to the extent Permitted by applicable law. Addresses. The mailing addresses of Grantor (debtor) and Lender (secured party) from which information concerning the security interesl granted by this Modgage may be obtained (each as required by the Uniform Commercial Code) are as stated on the first page of this Modgage. FURTHER ASSURANCES; A'I-rORNEY-IN-FACT. The following provisions relating to further assurances and attorney-in-fact are a part of this Mortgage: Further Assurances. At any time, and from time to time, upon request of Lender, Grantor will make, execute and deliver, or will cause to be made, executed or delivered, to Lender or to Lender's designee, and when requested by Lender, cause to be filed, recorded, reliled, 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 of trust, security deeds, security agreements, financing statements, continuation statements, instruments of fudher assurance, certificates, and other documents as may, in the sole opinion of Lender, be necessary or desirable in order to effectuate, complele, perfect, continue, or preserve (1) Grantor's obligations under the Credit Agreement, this Modgage, and the Related Documenls, and (2) the liens and security interests created by this Modgage on the Properly, whether now owned or hereafter acquired by Grantor. Unless prohibited by law or Lender agrees to the contrary in writing, Grantor shall reimburse Lender for all costs and expenses incurred in connection with tt~e matters referred to in this paragraph. Attorney-!n-Fact. If Grantor fails to do any of the things referred to in the preceding paragraph, Lender may do so for and in the name of Grantor and at Grantor's expense. For such purposes, Grantor hereby irrevocably appoints Lender as Grantor's attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and doing all other things as may be necessary or desirable, in Lender's sole opinion, Io accomplish the matters referred to in the preceding paragraph. FULL PERFORMANCE. If Grantor pays all the Indebtedness when due, terminates the credit line account, 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 statement on file evidencing Lender's security interest in the Rents and the Personal Property. Grantor will pay, il permitted by applicable law, any reasonable termination fee as determined by Lender from time Io time. EVENTS OF DEFAULT. Grantor will be in default under this Mortgage if any of the following happen: (A) Grantor commits fraud or makes a material misrepresentation at any time in connection with the Credit Agreement. This can include, for example, a false statement about Grantor's income, assets, liabilities, or any other aspects of Grantor's financial condition. (B) Grantor does not meet the repayment terms of the Credit Agreement. (C) Grantor's action or inaction adversely affects the collateral or Lender's rights in the collateral. This can include, for example, failure to maintain required insurance, waste or destructive use of the dwelling, failure to pay taxes, death of all persons liable on the account, transfer of title or sale of the dwelling, creation of a senior lien on the dwelling without Lender's permission, foreclosure by the holder of another lien, or the use of funds or the dwelling for prohibited purposes. RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default and at any time thereafter but subject to any limitation in the Credit Agreement or any limitation in this Mortgage, Lender, at Lender's Option, may exercise any one or more of the folloWing rights and remedies, in addition to any other rights or remedies provided by law: Accelerate Indebtedness. Lender shall have 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 part of the Personal Properly, Lehder 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 durin9 the pendency of foreclosure, whether judicial or non-judicial, and collect the Rents, including amounts past due and unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness. In furtherance of this right, Lender may require any tenant or other user of the Property to make payments of rent or use fees directly to Lender. If the Rents are collected by Lender, then Grantor irrevocably designates Lender as Grantor's attorney-in-fact to endorse instruments received in payment thereof in the name 01 Grantor and to negotiate the same and collect the proceeds. Payments by tenants or other users to Lender in response to Lender's demand shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the demand existed. Lender may exercise its rights under this subparagraph either in person, by agent, or through a receiver. Appoint Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any part of the Property, with the power to protect and preserve the Property, to operate the Properly preceding foreclosure or sale, and to collect the Rents from the Property and apply Ihe proceeds, over and above the cost of the receivership, against the Indebtedness. The receiver may serve without bond if permitted by law. Lender's right to the appointment of a receiver shall exist whether or not the apparent value of the Property exceeds the Indebledness by a substantial amount. Employment by Lender shall not disqualify a person from serving as a receiver. Judicial Foreclosure. Lender may obtain a judicial decree foreclosing Grantor's interest in all or any part of the Properly. Nonjudicial Sale. Lender may foreclose Grantor's interest in all or in any part of the Property by non-judicial sale, and specifically by "power ct sale" or "advedisement and sale" foreclosure as provided by statute. Loan No: 494013006 MORTGAGE ~ !~i 7 6 ~'' (Continued) ~: Page 4 Deficiency Judgment. ff permitted by applicable law, Lender may obtain a judgment for any deficiency remaining in the Indebtedness due to Lender after application of all amounts received from the exercise of the rights provided in this section. Tenancy at Sufferance. If Grantor remains in possession of the Property after the Properly is sold as provided above or Lender otherwise becomes entitled to possession of the Properly upon default of Grantor, Grantor shall become a tenant at sufferance of Lender or the purchaser ct the Properly and shall, al Lender's option, either (1) pay a reasonable rental for the use of the Properly, or (2) vacate the Properly . irt]mediately upon tbe demand of Lender. Other Remedies. Lender shall have all other rights and remedies provided in this Modgage or the Credit Agreement or available at law or in equity. .Sale ct the Property. To the extent permitted by applicable law, Grantor hereby waives any and all right Io have the PrOperty marshalled. In exercising ils rights and remedies, Lender shall 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 public sale on all or any podion of the Properly. Notice of Sale. Lender will give Grantor reasonable 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 disposition of the Personal Property is to be made. Reasonable nolice 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 will any sale of the Real Property. Election of Remedies. All of render's rights and 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 perform any of Grantor's obligations under this Mortgage, after Grantor's failure to do so, that decision by Lender will not affect Lender's right Io declare Granlor in default and to exercise Lender's remedies. Attorneys' Fees; Expenses. If Lender institutes any suit or action to enforce any of the term~ of this Modgage, Lender shall be entilled to recover such sum as lbo court may adjudge reasonable 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 reasonable 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 shall become a pad of the Indebtedness payable on demand and shall bear inlerest at the Credit Agreement rate from the date of the expenditure unlil repaid. 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 atlomeys' fees after default and referral to an attorney not Lender's salaried employee and expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services, the cost of searching records, obtaining title repods (including foreclosure repods), surveyors' repods, and appraisal fees and title insurance, to the extent permitted by applicable law. Grantor also will pay any court costs, in addition to all other sums provided by law. .NOTICES. Any notice required Io be given under this Mortgage, including without limitation any notice of default and any notice of sale shall be given in writing, and shall be effective when actually delivered, when actually received by lelefacsimile (unless olherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed when deposited in Ihe United States mail, as first class, codified or registered mail postage [)repaid. directed to Ibe addresses shown near the beginning of this Modgage. All copies of notices of foreclosure from lhe holder of any lien which bas priority over this Modgage sbatl be sent to Lender's address, as shown near the beginning of this Modgage. Any person may change his or her address for notices under Ihis Modgage by giving 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 purposes, Grantor agrees to keep Lender informed at all times of Grantor's current address. Unless otherwise provided or required by law, if there is more than one Grantor. any notice given by Lender to any Grantor is deemed to be notice given to all Grantors. It will be Grantor's responsibility to tell the others of the notice from Lender. MISCELLANEOUS PROVlSlO NS. The following miscellaneous provisions are a part of this Mortgage: Amendments. Whal is written in this Modgage and in the Related Documents is Grantor's entire agreement with Lender concerning the matters covered by this Modgage. To be effective, any change or amendment to this Mortgage must be in writing and must be signed by whoever will be bound or obligated by the change or amendment. Caption Headings. Caption headings in this Modgage are for convenience purposes only and are not to be used to interpret or detine the provisions of this Mortgage. Governing Law. This Mortgage will be governed by and interpreted in accordance with federal law and the laws of the State of Wyoming. This Mortgage has been accepted by Lender In the State of Wyoming. Joinl and Several Liability. All obligations of Grantor under this Mortgage shall be joint and several, and all references lo Grantor shall mean each and every Granlor. This means that eacb Grantor signing below is responsible for all obligations in this Modgage. No Waiver by Lender. Grantor understands Lender will not g~ve up any of Lender's rights under this Modgage unless Lender does so 'n writing. The [acl thai Lender delays or omits to exercise any right will not mean that Lender has giver] up that righl. If Lender does agree ~n writing to give up one ol Lender's rights, thal does nol mean Grantor will not have to comply with the other provm~ons of Ibis Mortgage. Grantor also underslands that if Lender does consent Io a request, that does nol mean that Grantor will not have to get Lender's consent again it the situation happens again. Grantor further understands lhat just because Lender consents to one or more of Grantor's requests, that does not mean Lender 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 execulion or similar law in the Property, and Grantor agrees that the rights of Lender in the Property under this Mortgage are prior to Grantor's rights while this Mortgage remains in effect. Severabillty. r a court finds that any provision of this Mortgage is not valid or should not be enforced, that fact by itself will not mean Ihat the rest of this Mortgage will not be valid or ~ntorced Therelore, a court will enforce the rest of the provisions of this Modgage even it a prows~on of this Mortgage may be found to be invalid or unenforceabl 9. Merger. There shall be no merger of the interest or estate created b~, this Modgage with any other interest or estate in Ihe Property at any time held uy or for the benefit of Lender in any capac ty, 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 the benefil of the padies, their successors and assigns. If ownership of the Properly becomes vested in a person other Ihan Granlor, Lender, wilhout notice to Grantor, may deal with Grantor's successors wilh reference lo this Modgage and the Indebtedness by way of forbearance or extension without releasing Grantor from the obligations of this Modgage or liability under the Indebtedness. Time Is of the Essence. Time is of the essence in tile performance of this Mortgage. Waiver of Homestead Exemption. Grantor hereby releases and waives all rights and benefits of the homestead exemption laws of the State of Wyoming as to all Indebtedness secured by this Modgage. DEFINITIONS. The following words shall have the tollowing meanings when used in this Mortgage: Borrower. The word "Borrower" means Scott E. Harmon and Tamara L. Harmon and includes all co-signers and co-makers signing the Credit Agreement. Credit Agreement. The words "Credit Agreement" mean the credit agreement dated July 30, 2004, with credit limit of $20,000.00 from Grantor Io Lender. together with all renewals of. extensions of, modifications of, refinancings of, consolidations of, and substitutions for the promissory note or agreement. The maturity date of this Mortgage is August 3, 2014. NOTICE TO GRANTOR: THE CREDIT AGREEMENT CONTAINS A VARIABLE INTEREST RATE. Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statutes, regulations and ordinances relating to the proteclion of human health or the environment, including wilhout limitation the Comprehensive Environmental Response, Compensation, and Liability Act of ~980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transpodation Act, 49 U.S.C, Section 1801, et seq., the Resource Conservation and Recovery AcL 42 U.S.C. Section 6901, et seq., or other applicable state or Iederal laws, rules, or regulations adopted pursuant lhereto. Evenl of Default. The words "Event of Default" mean any of tile events of defaull set fodh in this Mortgage in the events of default section of this Mortgage Existing Indebtedness. The words "Existing Indebtedness" mean tl~e indebtedness described in the Existing Liens prows~on of this Modgage. Grantor. The word "Grantor" means Scot~ E. Harmon and Tamara L. Harmon. Hazardous Substances. The words "Hazardous Subslances" mean materials that, because of their quantity, concentration or physical, chemical MORTGAGE Loan No: 494013006 (Continued) Page 5 or infectious characteristics, may cause or pose a present or potential hazarcJ to r~uman health or the environment when improperly used, treated, stored, disposed of, generated, manufactured~ transported or otherwise handled. The words "Hazardous Substances" are used h') their very broadest sense and include without limitation any and all hazardous or toxic substances materials or waste as defined i~y or listed under the Environmental Laws The term "Hazardous Substances" also includes, without rnitat~of~, petroleum and petroleum by-products or any fraction thereof and asbestos. Improvements. The word "improvements" means all existing and future improvements, buildings, structures, mobile homes affixed on the Real Property, fac lit es, 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 tile Credit Agreement or Related Documents together with all renewals of, extens ohs ol, modifications of, consolidations of and substitutions lot the Credit Agreement or Related Documents and any amounts expended or advanced by Lender lo dtscharge Grantor's obligations or expenses ~ncurred by Lender to enforce Grantor's obligations under this Modgage, together with interest on such amounts as provided in this Mortgage. Lender. The worc~ "Lender" means First Bani( of Idaho, fsb, dba First Bank of the Telons, its successors and assigns. The words "successors or assigns" mean any person or company that acquires any interest in the Credit Agreement. Mortgage. The word "Mortgage" means this Modgage between Grantor and Lender. Personal Property. The words "Personal Properly" mean all equipment, fixtures, and other adicles of personal property now or ltereafter owned Dy Grantor, and now or hereafter attached or affixed to the Real Property; together with all accessions, parts, and additions To, all replacements of, and all substitutions for, any of such property; and together with all proceeds (including without limitation all insurance proceeds and relunds of premiums) from any sale or other disposition of the Property. Property. The word "Property" means Collectively the Real Property and the Personal Property. Real Property. The words "Real Property" mean the real property, interests anc rights, as further described in this Mortgage. Related Documents. The woras "Related Documents" mean all promissory notes, credit agreements, oan agreements, environmental agreements, guaranties, security agreemenls, mortgages, deeds ot trust, securlly deeds, collateral mortgages, and all other Instrun]ents agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. Rents. The word "Rents" means all present and luture rents, revenues, income issues royalties, profits, and other benefits derived from the Property. · EACH GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND EACH GRANT( R AGREES TO ITS TERMS. GRANTOR: / 1.,~ t E. Harmon ~mar~ L. Harmon ~"-' ~' INDIVIDUAL ACKNOWLEDGMENT STAir. OF COUNTY OF ~( ~._ ) On this day before me, the undersigned Nota~ Public, personally appeared Scott E. Harmon, ~o me known to be the individual described in aha who executed the Mo~gage, ane acknowledged that he or she signed the Modgage as his or her free and voluntary act and eeed, lot the uses and purposes therein mentioned. Given un.my hand and official seal this ~0~ day of ~ ~ Residing at Notary Public in and for the State of ~(~1 ~ ~ My commission expires ~- ~- D~ INDIVIDUAL ACKNOWLEDGMENT \ TE R STATE OF - -' ~ ) ~ Court[ COUNTY OF ) ) On this day before me, the undersigned Nota~ Public, personally appeared Tamara L Harmon, to me know~ to be tl~e individual aescribed in and who executed the Mo~gage, and acknowle~g~ that he or she signea the Modgage as his or her free and voluntary ecl and deed, for the uses and purposes therein mentioned. Given u~ my hand an~official seal this_ ~ day of Notary Public in and for ~e State of