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HomeMy WebLinkAbout903812 RECEIVED LINCOLN OOUNTY CLERK After Recordation Return to: ..,: F Ai',l N E WAG!q E R KeyBank National Association First ~erican ELS - Policy Dept 1228 Euclid Avenue Suite 400 ~,~)~l~ 0570' - C1eveland, OH .441~5 ~- HOME EQUITY LINE MORTGAGE RONALD DENNEY KATHERINE DENNEY 1770 E 25TH ST IDAHO FALLS, ID 83404 i?:::~i~ ~ii::i :,~.i :~::ili.i.i.::i ?:.ii.i!.! KATIIERINE ANN DENNEY, TRUSTEE DF TI IE DENNEY FAMILY TRUST 561 HARDMAN ROAD TIIAYNE, WY 83349 ~L ~ ~ .~!i~ii?.?:.::.!.ii::.i.:::i; ~ ". :.:' ~!: :~:'::~: ~: :::::::::::::::::::::::::::: i. i. i i.i .i.i. ii~ ~.!~ii.::.::.::.i.!.i.!.i.::.i.::.::.i.::.!.!.i.i.i.i.i. ::.::.i.3.i.i. !.!.i.i.i.i.i.i.i.i.i.i.!. i.! i In consideration of the loan or other credit accommodation hereinafter specified and any future advances or future Obligations, as defined herein, which may hereafter be advanced or incurred and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Mortgagor hereby warrants and mortgages to KeyBank National Association 4910 Tiedeman Road, Suite B, Brookl_y_n_~_0~-~o 44144 ("Lender"), its successors and assigns, with power of sale and right of entry and possession all of Mortgagor's present and future estate, right, title and interest in and to the real property described in Schedule A, which is attached to this Mortgage and incorporated herein by this reference, together with all present and future improvements and fixtures; all tangible personal property, including, without limitation, all machinery, equipment, building materials, and goods of every nature (excluding household goods) now or hereafter located on or used in connection with the real property, whether or not affixed to the land; all privileges, hereditaments, and appurtenances; all leases, licenses and other agreements; all rents, issues and profits; all water, well, ditch, reservoir and mineral rights and stocks pertaining to the real properly (cumulativeiy "Property"); until payment in full of all Obligations secured hereby. Moreover, in further consideration, Mortgagor does, for Modgagor and Modgagor's heirs, representatives, successors, and assigns, hereby expressly warrant, covenant, and agree with Lender, its successors and assigns as follows: 1. OBLIGATIONS. This Mortgage shall secure the payment and performance of all present and future indebtedness, liabilities, obligations and covenants of Borrower or Mortgagor (cumulatively "Obligations") to Lender pursuant to: (a) this Modgage and the following promissory notes and other agreements: VARIABLE $315,000.00 09/2! : 041761701590C 125602091101 o9/25/34 As LPWY50§ © FormAtion Technologies, Inc. (11/3/96) (800) 937-37996 (b) all other present or future written agreements with Lender that refer specifically to this Mortgage (whether executed for the same or different purposes than the foregoing); (c) any guaranty of obligations of other parties given to Lender now or hereafter executed that refers to this Mortgage; (d) future advances, whether obligatory or optional, to the same extent as if made contemporaneously with the execution of this Mortgage, made or extended to or on behalf of Mortgagor or Borrower. Modgagor agrees'that if one of the Obligations is a line of credit, the lien of this Mortgage shall continue until payment in full of all debt due under the line notwithstanding the fact that from time to time (but before termination of the line) no balance may be outstanding. At no time shall the lien of this Mortgage, not including sums advanced to protect the security of this Mortgage, exceed $ 315: f) 13 n _ t3 {3 ; and (e) all amendments, extensions, renewals, modifications, replacements or substitutions to any of the foregoing. used in this Paragraph 1, the terms Mortgagor and Borrower shall include and also mean any Mortgagor or Borrower if more than one. REPRESENTATIONS, WARRANTIES AND COVENANTS. Modgagor represents, warrants and covenants to Lender that: (a) Mortgagor has fee simple marketable title to the Property and shall maintain the Property free of all liens, security interests, encumbrances and claims except for this Mortgage and those described in Schedule B which is attached to this Mortgage and incorporated herein by reference, which Mortgagor agrees to pay and perform in a timely manner; (b) Mortgagor is in compliance in all respects with all applicable federal, state and local laws and regulations, including, without limitation, those relating to "Hazardous Materials" as defined herein, and other environmental matters (the "Environmental Laws"), and neither the federal government nor the state where the Property is located nor any other governmental or quasi governmental entity has filed a lien on the Properly, nor are there any governmental, judicial or administrative actions with respect to environmental matters pending, or to the best of the Mortgagor's knowledge, threatened, which involve.the Property. Neither Mortgagor nor, to the best of Martgagor's.knowledge, any other party has used, generated, released, discharged, stored, or disposed of any Hazardous Materials as defined herein, in Connection with the Property or transported any Hazardous Materials to or from the Property. Modgagor shall not commit or permit such actions to be taken in the future. The term "Hazardous Materials" shall mean any substance, material, or waste which is or becomes regulated by any governmental authority including, but not limited to: (i) petroleum; (ii) friable or nonfriable asbestos; (iii) polychlorinated biphenyls; (iv) those substances, materials or wastes designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act or listed pursuant to Section 307 of the Clean Water Act or any amendments or replacements to these statutes; (v) those substances, materials or wastes defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act or any amendments or replacements to that statute; and (vi) those substances, materials or wastes defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, or any amendments or replacements to that statute or any other similar state or federal statute, rule, regulation or ordinance now or hereafter in effect. Modgagor shall not lease or permit the sublease of the Property to a tenant or subtenant whose operations may result in contamination of the Property with Hazardous Materials or toxic substances; (c) All applicable laws and regulations including, without limitation, the Americans with Disabilities Act, 42 U.S.C. Section 12101 et seq. (and all regulations promulgated thereunder) and all zoning and building laws and regulations relating to the Property by virtue of any federal, state or municipal authority with jurisdiction over the Property, presently are and shall be observed and complied with in all material respects, and all rights, licenses, permits, and certificates of occupancy (including but not limited to zoning variances, special exceptions for nonconforming uses, and final inspection approvals), whether temporary or permanent, which are material to the use and occupancy of the Property, presently are and shall be obtained, preserved and, where necessary, renewed; (d) Mortgagor has the right and is duly authorized to execute and perform its Obligations under this Mortgage and these actions do not and shall not conflict with the provisions of any statute, regulation, ordinance, rule of law, contract or other agreement which may be binding on Mortgagor at any time; - - · (e) No action i':: .": ing is or shall be pending or th'~'eatened which rr.i!!i!iJ ii!?:ii!:".,rially affect the Property; and . Page 1 of 5 0:90380.9 -,, , : :' 0185 (f) Mortgagor has not violated and shall not violate any §refute, regulation, ordim,~ce, rule of law, contract or other agreement wh,~"h might materially affect the Property (including, but not limited to, those governing Hazardous Materials) or Lender's rights or interest in the Property pursuant to this Mortgage. 3. PRIOR MORTGAGES. Mortgagor represents and warrants that there are no prio~ mortgages affecting any part of the Property except as set forth on Schedule B attached to this Mortgage which Mortgagor agrees to pay and perform in a timely manner. If there are any prior mortgages then Mortgagor agrees to pay all amounts owed, and perform all obligations required, under such mortgages and the indebtedness secured thereby. 4. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN MORTGAGORS OR BORROWERS. In the event of a sale, conveyance, lease, contract for deed or transfer to any person of all or any part of the real properly described in Schedule A, or any interest therein, or of all or any beneficial interest in Borrower or Mortgagor (if Borrower or Mortgagor is not a natural p~son or persons but is a corporation, limited liability company, partnership, trust, or other legal entity), Lender may, at its option, declare the outstamha9 principal balance of the Obligations plus accrued interest thereon immediately due and payable. At Lender's request, Mortgagor or Borrower, as the case may be, shall furnish a complete statement setting forth all of its stockholders, members or partners, as appropriate, and the extent of their r~spective ownership interests. 5. ASSIGNMENT OF RENTS. In consideration of the Obligations which am secum, d by this Mortgage, Mortgagor absolutely assigns to Lender all Mortgagor's estate, right, title, interest, claim and demand now owned or hereafter acquired in all existing and future leases of the Property (including extensions, renewals and subleases), all agreements for use and occupancy of the Property (all such leases and agreements whether written or oral, are hereafter referred to as the "Leases'), and all guara.nties of lessees' perf0tmance under the Leases, together with the immediate and continuing right to collect and receive all of the rents, income, receipts', revenues, issues~, profits and other income of any nature now or hereafter due (including any income of any nature coming due during any ademption period) under the Leases or from or arising out of the Property, including minimum rents, additional rents, percentage rents, parking or common area maintenance cor~t~ibutions, tax and insurance contributions, deficiency rents, liquidated damages following default in any Lease, all proceeds payable under any policy of insurance covering loss of rents resulting from untenantability caused by destruction or damage to the Property, all proceeds payable as a result of a lessee's exercise of an option to purchase the Property, all proceeds derived from the termination or rejection of any Lease in a bankruptcy or other insolvency proceeding, and all proceeds from any rights and claims of any kind which Mortgagor may have against any lessee under the Leases or any occupants of the Property (all of the above are hereafter collectively referred to as the 'Rents'). This assignment is subject to tl,~ ri9ht, power and authority given to the Lender to collect and apply the Rents. This assignment is recorded in accordance with applicable state law; tile lien created by this assignment is intended to be specific, perfected, and choate upon the recording of this Mortgage, alt as provided by applicable, state law as amended from time to time. As long as there is no default under the Obligations or this Mortgage, Lender grants Mortgagor a revocable license to collect all Rents from the Leases when due and to use such proceeds in Mortgagor's business operations. However, Lender may at any time require Mortgagor to deposit all Rents into an account maintained by Mortgagor or Lender at Lender's institution. Upon default in the paymer)t of, or in the performance of, any of the Obligations, Lender may at its option take possession of the Property and have, hold, manage, lease ami operate the Property on terms and for a period of time that Lender deems proper. Lender may proceed to collect and receive all Rents, from the. Property, and Lender shall have full power to periodically make alterations, renovations, repairs or replacements to the Property as Lender may deem p~oper. Lender may apply all Rents in Lender's sole discretion, to payment of the Obligation or to the payment of the cost of such alterations, renovations, repairs and replacements and any expenses incident to taking and retaining possession of the Property and the management and operation gl the Property. Lender may keep the Property properly insured and may discharge any taxes, charges, claims, assessments and other liens which may accrue. The expense and cost of these actions may be paid from the Rents received, and any unpaid amounts shall be added to the principal of thc Obligations. These amounts, together with other costs, shall become part of the Obligations secured by this Mortgage. 6.. LEASES AND OTHER AGREEMENTS. Mortgagor shall not take or fail to take any action which may cause or permit the termination or the withholding of any payment in connection with any Lease pertaining to the Property. In addition, Mortgagor, without Lender's prior written consent, shall not: (a) collect any monies payable under any Lease more than one month in advance; (b) modify any Lease; (c) assign or allow a lien, security interest or other encumbrance to be placed upon Mortgagor's rights, title and interest ia and to any Lease or the amounts payable thereunder; or (d) terminate or cancel any Lease except for the nonpayment of any sum or other material breach by the other party thereto. If Mortgagor receives at any time any written communication asserting a default by Mortgagor under an Lease or purporting to terminate or cancel any Lease, Mortgagor shall promptly forward a copy of such communication (and any subsequent communications relating thereto) to Lender. All such Leases and the amounts due to Mortgagor thereunder are hereby assigned to Lender as additional security for the ©bligations. 7. COLLECTION OF INDEBTEDNESS FROM THIRD PARTY. Lender shall be ~ntitled to notify or require Mortgagor to notify any third party (including, but not limited to, lessees, licensees, governmental authorities and insura~ce companies) to pay Lender any indebtedness or obligation owing to Mortgagor with respect to the Property (cumulatively "Indebtedness") whether or not a default exists under this Mortgage. Mortgagor shall diligently collect the Indebtedness owing to Mortgagor from these third parties ur~lil the giving of such notification. In the event that Mortgagor possesses or receives po~'.session of any instruments or other remittances with respect to lhe indebtedness following the giving of such notification or if the instruments or other remittances ccnstitute the prepayment of any Indebtednes~ o~ the payment of any insurance or condemnation proceeds, Mortgagor shall hold such instruments and other remittances in trust for Lender ap,ut ;,'om its other property, endorse the instruments and other remittances to Lender, and immediately provide Lender with possession of the instru~aonts and other remittances. Lender shall be entitled, but not required, to collect (by legal proceedings or otherwise), extend the time for payment, compromise, exchange or release any obligor or collateral, or otherwise settle any of the Indebtedness whether or not an Event of Default exists unddl~ this Mortgage. Lender shall not be liable to Mortgagor for any action, error, mistake, omission or delay pertaining to the actions described in this paragraph or any damages resulting therefrom. Notwithstanding the foregoing, nothing herein shall cause Lender to be deemed a mortgagee-in-possession. 8. USE AND MAINTENANCE OF PROPERTY. Mortgagor shall take all actions ami make any repairs needed to maintain the Property in good condition. Mortgagor shall not commit or permit any waste to be committed with respect to the Property. Mortgagor shall use the Property solely in compliance with applicable law and insurance policies. Mortgagor shall not make any alterations, additions or improvements to the Property without Lender's prior written consent. Without limiting the foregoing, all alterations, additions and improvements made to the Property shall be subject to the beneficial interest belonging to Lender, shall not be removed without Lender's prior written consent, and shall be made at Mortgagor's sole expense. 9. LOSS OR DAMAGE. Mortgagor shall bear the entire risk of any loss, theft, destruction or damage (cumulatively "Loss or Damage") to the Property or any portion thereof from any cause whatsoever. In the event of any Loss or Damage., Mortgagor shall, at the option of Lender, repair the affected Property to its previous condition or pay or cause to be paid to Lender the decrease in th~ lair market value of the affected Property. 10. INSURANCE. The Property will be kept insured for its full insurable value (replacement cost) against all hazards including loss or damage caused by flood, earthquake, tornado and fire, theft or other casualty to the extent required by Lender. Mortgagor may obtain insurance on the Property from such companies as are acceptable to Lender in its sole discretion. The insurance policies shall require the insurance company to provide Lender with at least 3 0 days' written notice before such policies are altered or cancc,ad in any manner. The insurance policies shall name Lender as a loss payee and provide that no act or omission of Mortgagor or any other person shall affect the right of Lender to be paid the insurance proceeds pertaining to the loss or damage of the Property. In the event Mortgagor fails to acquire, or maintain insurance, Lender (after providing notice as may be required by law) may in its discretion procure appropriate insurance coverage upun the Property and the insurance cost shall be an advance payable and bearing interest as described in Paragraph 21 and secured hereby. Mortgagor shall furnish Lender with evidence of insurance indicating the required coverage. Lender may act as attorney-in-fact for Mortgagor in making ami s~ttlin9 claims under insurance policies, cancelling any policy or endorsing Mortgagor's name on any draft or negotiable instrument drawn by any insurer. All such insurance policies shall be immediately assigned, pledged and delivered to Lender as further security for the Obligations. Ir~ the event of loss, Mortgagor shall immediately give Lender written notice and Lender is authorized to make proof of loss. Each insurance company is directed to make payments directly to Lender instead of to Lender and Mortgagor. Lender shall have the right, at its sole option, to apply such monies toward the Obligations or toward the cost of rebuilding and restoring the Property. Any amounts may at Lender's option be applied in the inverse order of the due dates thereof. 11. ZONING AND PRIVATE COVENANTS. Mortgagor shall not initiate or consent t~ any change in the zoning provisions or private covenants affecting the use of the Property without Lender's prior written consent. If Mortgagor's use of the Property is or becomes a nonconforming use under any zoning provision, Mortgagor shall not cause or permit such use to be discontinued or abandoned without the prior written consent of Lender. Mortgagor will immediately provide Lender with written notice of any proposed cha~(jos to the zoning provisions or private covenants affecting the Property. 12. CONDEMNATION. Mortgagor shall immediately provide Lender with written notice of any actual or threatened condemnation or eminent domain proceeding pertaining to the Property. All monies payable to Mortgagor from such cor~demnation or taking are hereby assigned to Lender and shall be applied first to the payment of Lender's attorneys' fees, legal expenses and othor costs (including appraisal fees) in connection with the condemnation or eminent domain proceedings and then, at the-optiofi 'of Lendi~Y, to tho payment of the Obligations or the restoration or repair of the Property. 13. LENDER'S RIGHT TO COMMENCE OR DEFEND LEGAL ACTIONS. Mortgagor shall immediately provide Lender with. written notice of any actual or threatened action, suit, or other proceeding affecting the Property. Mortgagor hereby appoints Lender as its attorneg-in-fact to commence, intervene in, and defend such actions, suits, or other legal proceedings and to compromise or settle any claim or controversy pertaining thereto. Lender shall not be liable to Mortgagor for any action, error, mistake, omission or delay pertaining to the actions described in this paragraph or any damages resulting therefrom. Nothing contained herein will prevent Lender from taking tho actions described in this paragraph in its own name. 14. INDEMNIFICATION. Lender shall not assume or be responsible for the pedormance of any of Mortgagor's obligations with respect to the Property under any circumstances. Mortgagor shall immediately provide Lender with written notice of and indemnify and hold Lender and'its shareholders, directors, officers, employees and agents harmless from all claims, damages, liabilities (including attorneys' fees and legal expenses), causes of action, actions, suits and other legal proceedings (cumulatively "Claims") pertaining to the Property (including, but not limited to, those involving Hazardous Materials). Mortgagor, upon the request of Lender, shall hire 1~gal counsel to defend Lender from Such Claims, and pay the attorneys' fees, legal expenses and other costs incurred in connection therewith. In th~ alternative, Lender shall be entitled to employ its own legal counsel to defend such Claims at Mortgagor's cost. Mortgagor's obligation to indemnify Lender under this paragraph shall survive the termination, release or foreclosure of this Mortgage. [ PWY506B © FormAtion Technologies, Inc. (11/3/96) (800) 937-3~99 Page 2 of 5 . :: :,.,,~;::; · .., ,' 29~. NOTICES. Except as otherwise required by law, any notice or other oommunication to be provided under this Mortgage ~" ~ riling and sent lo the parties at the addresses described in this Mortgage or such other address as the parties may designate in writing from time to time. Any such notice so given and sent by first class mail, postage prepaid, shall be-deerned given the earlier of three (3) days after such notice is sent or when received by the person to whom such notice is being given. 30. SEVERABILITY. Whenever possible, each provision of this Mortgage shall be iuterpreted so as to be effective and valid under applicable state law. If any provision of this Mortgage violates the law or is unenforceable, the rest of the Mortgage shall continue to be valid and enforceable. 31. APPLICABLE LAW. This Mortgage shall be governed by the laws of the state where the Property is located. Unless applicable law provides otherwise, Mortgagor consents to the jurisdiction and venue of any court selected by Leudur, in its sole discretion, located in that state. 32. NO THIRD-PARTY RIGHTS. No person is or shall be a third-party beneficiary of any provision of the Mortgage. All provisions of the Mortgage in favor of Lender are intended solely for the benefit of Lender, and no third party shall be entitled to assume or expect that Lender will waive or consent to the modification of any provision of the Mortgage, in Lender's sole discretion. 33. PRESERVATION OF LIABILITY AND PRIORITY. Without affecting the liability of Borrower, Mortgagor, or any guarantor of the Obligations, or any other person (except a person expressly released in writing) for the payment and performance of the Obligations, and without affecting the rights of Lender with respect to any Property not expressly released in writing, and without impairing in any way the priority of this Mortgage over the interest of any person acquired or first evidenced by recording subsequent to the recording of this Mortgage, Lender may, either before or after the maturity of the Obligations, and without notice or consent: release any person liable for payment or performance of all or any part of the Obligations; make any agreement altering the terms of payment or performance of all or any part of the Obligations; exercise or refrain from exercising or waive any right or remedy that Lender may have under this Mortgage; accept additional security of any kind for any of the Obligations; or release or otherwise deal with any real or personal property securing the Obligations. Any person acquiring or recording evidence of any interest of any nature in the Property shall be deemed, by acquiring such interest or recording any evidence thereof, to have consented to all or any such actions by Lender. 34. DEFEASANCE. Upon the payment and performance in full of all of the ©bligutions, Lender will execute and deliver to Mortgagor those documents that may be required to release this Mortgage of record. Mortgagor shall be responsible to pay any costs of recordation. 35. RELEASE AND WAIVER OF HOMESTEAD. Mortgagor hereby relinquishes and w~ives all rights under and by virtue of the homestead laws of the State of Wyoming and covenants and agrees that Mortgagor is lawfully seized of said Property, that it is free from all encumbrances, and hereby covenants to warrant and defend the title of said Property against the lawful claims of all persons whomsoever. Spouse of Grantor upon the consideration aforesaid, does hereby release and forever quit-claim unto Lender, as Mortgagee, all his/her rights of homestead in and to the above granted Property. 36. MISCELLANEOUS. Mortgagor and Lender agree that time is of the essence. Mortgagor waives presentment, demand for payment, notice of dishonor and protest except as required by law. All references to Mortgagor in this Mortgage shall include all persons signing below. If there is more than one Mortgagor, their Obligations shall be joint and several. This Mortgage ~epresents the complete integrated understanding between Mortgagor and Lender pertaining to the terms and conditions hereof. 37. ADDITIONAL TERMS: Mortgagor acknowledges that Mortgagor has read, understands, and agrees to the terms and conditions of this Mortgage, and acknowledges receipt of an exact copy of same. IN WITNESS HEREOF, Mortgagor has executed this instrument either individually or has caused this instrument to be executed and delivered in its name by its duly authorized representative on the date of the acknowledgment. Dated this 31 ~- day of MORTGAGOR:RONA_LD D. DEN-NEY, TRUSTEE R~N~LffD. DENNEY, TRUSTEE ~% MORTGAGOR: MORTGAGO.R: KATHERINE ANN DENNEY, TRUSTEE KATHERINE ANN DENNEY, TRUSTEE ~Y MORTGAGOR MORTGAGOR: MORTGAGOR: MORTGAGOR: MORTGAGOR: LPWY506D © FormAtion Technologies, Inc. (11/3/96) (800) 937-3799 Page 4 of 5 15. TAXES AND AsSeSSMENTS. Moagagor shall pay all taxes and assessments relz)ting to the Prope~ when due and immediately provide Lender evidence of payment of same. U~n ~e request of Lender, Mo~gagor shall deposit with Lender each mon~ one-~elflh (1/12) of the estimated annual insurance premium, t~es and assessments ~daining to the Prbpe~. So io~g as there is no default, these amounts shall be applied to the payment of ~xes, assessments and insurance as required on ~e Prope~. In the event of default, Lender shall have ~e right, at its sole option, to apply the funds so held to pay any t~es or against ~e Obligations. Any funds applied may, at Lender's option, be applied in reverse order of ~e due date thereof. 16. INSPECTION OF PROPERS, BOOKS, RECORDS AND REPORTS. Modgaoor shall allow Lender or its agents to examine and inspect the Pmpe~ and examine, inspect and make copies of Moagagor's ~oks and record~ pedaining to the Prope~ from time to time. Modgagor shall provide any assistance required by Lender for ~ese pur~ses. All of the signatures a~d information contained in Moagago~s ~oks and records shall be genuine, true, accurate and complete in all respects. Moagagor shall note the existence of Lender's beneficial interest in its ~oks and records peaaining to the Prope~. Additionally, Modgagor shall re~A, in a form satisfactory to Lender, such information as Lender may request regarding Modgago~s financial condition or the Pmpe~. The information shall be for such periods, shall reflect Modgagor's records at such time, and shall be rendered wi~ such frequency as Lender may designate. All information furnished by Modgagor to Lender shall be true, accurate and complete in all respects, and signed by Modgagor if Lender requests. 17. ESTOPPEL CER~FICATES. Within ten (10) days after any request by Lender, Modgagor shall deliver to Lender, or any intended transferee of Lender's rights wi~ respect to ~e Obligations, a signed and acknowledged statement speci~ing: (a) the outs~nd~g balance on ~e Obligations; and (b) whether Modgagor possesses any claims, defenses, set-offs or counterclaims with respect to the Obligations and, if so, the nature of such claims, defenses, set-offs or counterclaims. Moagagor will be conclusively bound by any representation that Lender may make to ~e intended transferee with respect to ~ese masers in the event ~at Moagagor fails to provide the request~ statemo~t in a timely manner. 18. EVENTS OF DEFAULT. An Event of Default will occur under this Modgage in the event that Moagagor, Borrower or any guarantor of any Obligation: (a) commits fraud or makes a material misrepresen~tion at any time in connection with the Obligations or this Moagage; (b) fails to meet the repayment terms of the Obligations for any outstanding balance; or (c) by any action or inaction, adversely affects the Prope~, or any right of Lender it) such Prope~, including, but not limited to, transfer of title to or sale of the Prope~ without ~e permission of Lender, failure to maintain required insurance or to pay t~es on ~e Prope~, allowing ~e filing of a lien senior to that held by Lender, dea~ of the sole Borrower obligated under the Obligations, allowing ~e taking of the Pmpe~ through eminent domain, or allowing the Pmpe~ to be foreclosed by a lienholder othe~ than Lender. In addition, an Event of Default shall occur if, as a result of any of the following, ~e Pmpe~, or any right of ~e Lender in ~e P~opedy, is adversely affected: ~e Borrower, Moagagor or any guarantor of any Obligations commits waste or o~e~ise destructively uses or fails to maintain ~e Pmpe~, uses the Pmpe~ in an illegal manner which may subject ~e Pmpe~ to seizure, or moves from ~e Property; a judgment is filed against the Borrower, Modgagor or any guarantor of any Obligation; or one of ~o Borrowers obligated under the Obligations dies. 19. RIGHTS OF LENDER ON EVENT OF DEFAULT. U~n the occurrence of an Event of Default under this Moagage, Lender shall be entitled to exercise one or more of the following remedies without notice or demand (except as requi~ed by law): (a) to declare ~e Obligations immediately due and payable in full, such acceleration shall be automatic and immediate if the Event of Default is a filing under the Bankruptcy Code; (b) to collect ~e outstanding Obligations wi~ or without resoding to judicial process; (c) to require Moagagor to deliver and make available to Lender any personal property or ChaPels constituting the Prope~ at a place reasonably convenient to Modgagor and Lender; (d) to enter u~n and take ~ssession of ~e Pmpe~ without applying for or obtaining the appointment of a receiver and, at Lende(s option, to ap~int a receiver without ~nd, without first bringing suit on ~e Obligations ar,d without othe~ise meeting any statuto~ conditions regarding receivers, it being intended that Lender shall have ~is contractual right to ap~int a receiver; (e) to employ a managing agent of ~e Pmpe~ and let the same, in the name of Lender or in the name of Modgagor, and receive ~e rents, incomes, issues and profits of ~e Pmpe~ and apply the same, after payment of all necessa~ charges and expenses, on account of the Obligations; (0 to pay any sums In any form or manner deemed expedient by Lender to protect the securi~ of this Mo~gage or to cure any default other than payment of interest or principal on the Obligations; (g) to foreclose this Moagage; (h) to set-off Moagago~s Obligations against any amounts owed Moagagor by I. ender including, but not limited to, monies, instruments, and deposit accounts maintained wi~ Lender or any currently existing or future affiliate of Lender; and (i) to exemise all other rights available to Lender under any other wriRen agreement ~r {,pr Ik':,ble law. Lender's rights are cumulative 'and may be exercised together, separately, and in any order. In the event that Lender institutes an action seeking ~e recovew of any of the Prope~ by way of a prejudgment remedy in an action agai~st Moagagor, Modgagor waives the ~sting of any bond which might othe~ise be required. Lender or LendeCs designee may purchase the Propedy at any sale. The Prope~ or any pan thereof may be sold in one parcel, or in such parcels, manner or order as Lender In its sole discretion may elect, and one or more exercises of ~e power herein granted shall not extinguish or exhaust the ~wer unless the entire Prope~ is sold or the Obligations are paid in full. 20. SECURIW INTEREST UNDER THE UNIFORM COMMERCIAL CODE. This Mortgage shall be considered a financing statement and a fixture filing pursuant to the provisions of the Uniform Commercial Code (as adopted by the state where the Prope~ is located) covering fixtures, chaRels, and aaicles of personal prope~ now owned or herea~er aRached to or to be used in connection wi~ the Prope~ together with any and all replacements thereof and additions thereto (the "ChaRels"), and MoAgagor hereby grants Lender a securi~ interest in such ChaPels. The debtor is ~e MoAgagor described a~ve. The secured pa~ is the Lender described a~ve. Upon demand, Modgagor shall make, execute and deliver such securi~ agreements (as such term is defined in said Uniform Commercial Code) as Lender at any time may deem necessaw or proper or required to grant to Lender a pedected securi~ interest In ~e ChaRels, and u~n Moagagor's faih,re to do so, Lender is authorized to sign any such agreement as the agent of MoAgagor. Modgagor hereby authorizes Lender to file financing statem(~nts (as such term is defined in said Uniform Commercial Code) with respect to the ChaEels, at any time, without ~e signature of Mo~gagor. Modgaoor will, however, at any time u~n request of Lender, sign such financing statements. Modgagor will pay all filing fees for the filing of such financi~;g statements and for Be refiling thereof at the times required, in the opinion of Lender, by said Uniform Commercial Code. If the lien of this Modgage is subject to any securi~ agreement covering the ChaRels, then in the event of any default under ~is Me,gage, all the right, title and interest of Mortgagor in and to any and all of ~e Chaaels is hereby assigned to Lender, together with the benefit of any de,sits or payments now or hereaRer made thereof by Modgagor or the predecessors or successors in title of Moagagor in the Prope~. 21. REIMBURSEMENT OF AMOUNTS EXPENDED BY LENDER. Lender, at Lender's option, may expend funds (including aRorneys' fees and legal expenses) to pe~orm any act required to be taken by Mo~gagor or to exercise any right or remedy of Lender under this Moagage. Upon demand, Modgagor shall immediately reimburse Lender for all such amounts expended by Lender together with interest ~ereon at ~e lower of ~e highest rate described in any Obligation or the highest rate allowed by law from ~e date of payment until the date of reimbursement. These sums shall be included in the definition of Obligations herein and shall be secured by the beneficial interest granted herein. If the Obligations are paid a~er the beginning of publication of notice of sale, as herein provided, or in the event Lender shall, at its sole option, permit Modgagor to pay any ~d of the Obligations after the beginning of publication of notice of sale, as herein provided, then, Modgagor shall pay on demand all expenses incurred by ~e Lender in connection wi~ said publication, including reasonable aRorneys' fees to the attorneys for the Lender, and this Modgage shall be securi~ for all such expenses and fees. 22. A~PLICATIOH OF PAYMENTS. All payments made by or on behalf of Modgagor may be applied against the amounts paid by Lender (including aRorneys' fees and legal expenses) in connection with the exercise of its rights or remedies described in this Modgage and then to the payment of the remaining Obligations in whatever order Lender chooses. 23. POWER OF A~ORNEY. Mo~gagor hereby ap~ints Lender as its aRorney-in-fact to endorse ModgagoCs name on all instruments and other documents pe~aining to the Obligations or Modgage. In addition, Lender shall be entitled, but not required, to pedorm any action or execute any document required to be taken or executed by Mo~gagor under this Moagage. Lender's peflormance of such action or execution of such documents shall not relieve Modgagor from any Obligation or cure any default under ~is Mo~tgaoe. The powers of'aRorney described in this Modgage are coupled with an interest and are irrevocable. 24. SUBROGA~ON OF LENDER. Lender shall be subrogat~ to the rights of the holder of any previous lien, securi~ interest or encumbrance discharged with funds advanced by Lender regardless of whether ~ese liens, securi~ interests or other encumbrances have been ¢eleased of record. 25. COLLECTION COSTS AND A~ORNEYS' FEES. U~n default by ~rrower or Mortgagor under the Obligations and referral of this Me,gage to an aHorney who is not a salaried employee of Lender, Modgagor agrees to pay LendrCrs reasonable aRorneys' fees. Additionally, Moagagor agrees to pay all reasonable expenses incurred by Lender in foreclosing and realizing on the Property. 26. PAR~AL RELEASE. Lender may release its interest in a ~dion of the Property by executing and recording one or more panini releases without affecting its interest in the remaining poaion of the Prope~. Nothing herein shall t:)c deemed to obligate Lender to release any of its interest in the Prope~ (except as required under Paragraph 34), nor shall Lender be obligated to release any pad of the Prope~ if Modgagor is in default under this Modgage, 27. MODIFICATION AND WAIVER. The modification or waiver of any of Modgagods Obligations or LendeCs rights under ~is Modgage must be contained in a writing signed by Lender. Lender may pedorm any of Borrower's or Mortgager's Obligations, delay or fail to exercise any of its rights or accept payments from Modgagor or anyone other ~an Moagagor without causing a waiver of those Obligations or rights. A waiver on one occasion shall not constitute a waiver on any other occasion. Modgagor's Obligations u~Mer this Modgage shall not be affected if Lender amends, compromises, exchanges, fails to exercise, impairs or releases any of the Obligations belonging to any Moagagor, Borrower or third pa~ or any of its rights against any Modgagor, Borrower or thi~ pa~ or any of the Prope~. Lender's failure to insist u~n strict pedormance of any of the Obligations shall not be deemed a waiver, and Lender shall have the right at any time ~ereafler to insist upon strict pe~ormance. 28. SUCCESSORS AND ASSIGNS. This MoRgage shall be binding upon and ir~uro to the benefit of MoAgagor and Lender and their respective successors, assigns, trustees, receivers, administrators, personal representatives, legatees and devisees. LP~506C ~ Fo~Ation Technoloaies, Inc. (11/3/96) (800) 937-3799 Page 3 of 8 Stat~ of Wyo~ing ~,..,~r~.,. ' - } ' O ) ss: County of A/~ ~ ~] J..~.~ ) O~his ~ dayof ~~, , ~, before me personally appeared . ~ald ~g~ ,~ru3fee ~ ~her~ D~,.". ~ to me known to be the person(s) described in and who executed the foregoing instrument, and acknowledged his~erAheir free act and deed, including ~e release aad w~iyer of the right of homestead. Given under my hand and notarial seal ~is ~/~ day of ~~'L' ,,' ~S. ~ ,, . . ~ ~ ... '...~ .. : ... '.- ,- 0188 that he/she/they --2,' oo</ N6tary Public executed the same as State of Wyoming County of On this day of '-. ).~:/~/J,SLIG ..'" :: '-P,2 .......... ,.., ~, .... ,'-, oelore me personally appeared to me personally known, who, being by me duly sworn, did say that he/she/they are the respectively, of said , executing the fortCrjoing instrument, that said instrument was signed on behalf of said , by authority of its , and the above signed person(s) acknowledged the execution of said instrument to be the free act and deed of said. GK, en under my hand and notarial seal this day of My Commission Expires: Notary Public RELEASE OF HOMESTEAD RIGHT S: State of Wyoming ) ) SS: County of ) On this day of __ , before me personally appeared to me personally known, who, being by me duly sworn, did say that he/she/they are the respectively, of said , executing the foregoing instrument for purpos~es of waiving and relinquishing his/her/their homestead rights, acknowledged that he/she/they had been fully advised of his/her/their rights 'and the effect of sigmng, and acknowledged that he/she/ihey executed the foregoing instrument as his/her/their free act and deed. Given under my hand and notarial seal this day of .... My Commission Expires: Notary Public The following described real property located in the County of - = -- LOT 102 OF STAR VALLEY R]LNCH PLAT 18, LINCOLN COUNTY, DESCTIBED ON THE OFFICIAL PLAT THEREOF. , State of Wyoming WYOMING AS THIS DOCUMENT WAS PREPARED BY: KeyBank National Associat:~on / David G. Fisher AFTER RECORDING RETURN TO LENDER AT ITS ADDRESS DESCRIBED ABOVE. t PWY50§E © FormAtion Technologies, Inc. (11/3/96) (800) 937-3799 Page 5 of 5