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HomeMy WebLinkAbout9047033875759+ 1 00426360256735 BERNHARDSEN, KEITH DEED OF TRUST/MORTGAGE WHEN RECORDED MAIL TO: Bank One, N.A. Retail Loan Servicing KY2-1606 P.O. Box 11606 Lexington, KY 40576-1606 RECEIVED 11/19/2004 at 11:20 AM RECEIVING # 904703 BOOK: 573 PAGE: 79-84 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, VVY SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONI MORTGAGE MAXIMUM LIEN. The lien of this Mortgage shall not exceed at any one time $25,000.00. THIS MORTGAGE dated November 9, 2004, is made and executed between KEITH C BERNHARDSEN an PATRICIA E BERNHARDSEN, HUSBAND AND WIFE, whose address is 1412 SADDLE DRIVE, ETNA, WY 8311 (referred to below as "Grantor") and Bank One, NA , whose address is 100 East Broad Street, Columbus, Gl 43271 (referred to below as "Lender"). GRANT OF MORTGAGE. For valuable conslderatiou, Grantor mortgages and conveys to Lender all of Grantor's right, title, and interest in and 1 the following described real property, together with all existing or subsequently erected or affixed buildings, improvements and fixtures; ~ easements, rights of way, and appurtenances; ali water, water rights, watercourses and ditch rights (including stock in utilities with ditch ( irrigation rights); and all other rights, royalties, ar',t )~)fits relatinc~ to the real property includln w~thou th .... ~ -' ' g ' t limitation all minerals, oil, ga: geothermal and similar matters, ( e Real Property ) located m LINCOLN County, State of Wyoming: THE FOLLOWING TRACT OF LAND IN LINCOLN COUNTY, STATE OF WYOMING, TO WIT: LOT 126, IP NORDIC RANCHES DIVISION NO. 9, ACCORDING TO THE OFFICIAL PLAT THEREOF 12-3619-26-2-00-202.00. The Real Property or its address is commonly known as 1412 SADDLE DRIVE, ETNA, WY 83118. The Rel Property tax identification number is 12-3619-26-2-00-202. REVOLVING LINE OF CREDIT. Specifically, in addition to the amounts specified in the Indebtedness definition, and without limitation, thi Mortgage secures a revolving line of credit, which obligates Lender to make advances to Borrower so long as Borrower complies with all th terms of the Credit Agreement. Such advances may Ire made, repaid, and remade from time to time, subject to the limitation that the tot~ outstanding balar~ce owing at any one time, not including finance charges on such balance at a fixed or variable rate or sum as provided in th Credit Agreement, any temporary overages, other charges, and any amounts expended or advanced as provided in either the Indebtednes paragraph or this paragraph, shall not exceed tire Credit Limit as provided in the Credit Agreement. It is the intention of Grantor and Lender tha this Mortgage secures the balance outstanding under the Credit Agreement from time to time from zero up to the Credit Limit as provided in thi Mortgage and any intermediate balance. Grantor presently assigns to Lender all of Grantor's ri!~h[, title, and interest in and to all present and future leases of the Property and all Rent from the Property. In addition, Grantor grants to Lend,~r a Uniform Commercial Code security interest in the Personal Property and Rents. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, h' GIVEN TO SECURE (A) PAYMENT OF THE INDEBIEDNESS AND (B) PERFORMANCE OF EACH OF GRANTOR'S AGREEMENTS AN[ OBLIGATIONS UNDER THE CREDIT AGREEMENT, THE RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE IS GIVEN AN[ ACCEPTED ON THE FOLLOWING TERMS: GRANTOR'S WAIVERS. Grantor waives all rights or t f,'nses arising by reason of any "one action" or "anti-deficiency" law, or any other la~ which may prevent Lender from bringing any action ~j~i~;t Grantor, including a claim for deficiency to the extent Lender is otherwise entitled tc a claim for deficiency, before or after Lender's community,cement or completion of any foreclosure action, either judicially or by exercise of i power of sale. GRANTOR'S REPRESENTATIONS AND WARRANTIES. ~3rantor warrants that: (a) this Mortgage is executed at Borrower's request and not a the request of Lender; (b) Grantor has the full powor, r~tlht, and authority to enter into this Mortgage and to hypothecate the Property; (c) th( provisions of this Mortgage do not conflict with, or r~s~ll in a default under any agreement or other instrument binding upon Grantor and do no' result in a violation of any law, regulation, court decr,:~ ~r order applicable to Grantor; (d) Grantor has established adequate means of obtaininc. from Borrower on a continuing basis informatioo aHcmt Borrower's financial condition; and (e) Lender has made no representation to Granto~ about Borrower (including without limitation the credil,/.'~,r[hiness of Borrower). PAYMENT AND PERFORMANCE. Except as otherwi~,~ I,~vided in this Mortgage, Borrower shall pay to Lender all Indebtedness secured by thL, Mortgage as it becomes due, and Borrower and Granu~r '~hall strictly perform all Borrower's and Grantor's obligations under this Mortgage. POSSESSION AND MAINTENANCE OF THE PROPERTY. Borrower and Grantor agree that Borrower's and Grantor's possession and use of th6 Property shall be governed by the following provisior~s: Possession and Use. Until the occurrence of an E,,'e~t of Default, Grantor may (1) remain in possession and control of the Property; (2) use, operate or manage the Property; and (3) colh~<t the Rents from the Property. Duty to Maintain. Grantor shall maintain the Pr~p,:r.y in good condition and promptly perform all repairs, replacements, and maintenance necessary to preserve its value. Compliance With Environmental Laws. Grantor r,~Hr~ments and warrants to Lender that: (1) During the period of Grantor's ownership of the Property, there has been no use, generatior~, m.~ufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance by any person on, under, about or fr,~ the Property; (2) Grantor has no knowledge of, or reason to believe that there has been, except as previously disclosed to and ack ~_v.;ledged by Lender in writing, (a) any breach or violation of any Environmental Laws, (b} any use, generation, manufacture, storage, tr~.',~Iment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the Property by any prior owner:~ ~r ,~ccupants of the Property, or (c} any actual or threatened litigation or claims of 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 ~,~tl~orized user of the Property shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, ;~t~[,~ or from the Property; and (b) any such activity shall be conducted in compliance with all applicable federal, state, and local laws, r~'!Hdations and ordinances, including without limitation all Environmental Laws. Grantor authorizes Lender and its agents to enter upon th,~ Prol~erty to make such inspections and tests, at Grantor's expense, as Lender may deem appropriate to determine compliance of the Prot~rt~.' with this section of the Mortgage. Any inspections or tests made by Lender shall be for Lender's purposes only'and shall not be oons[ru,~d to create any responsibility or liability on the part of Lender to Grantor or to any other person. The representations and warranties ~;~;dned herein are based on Grantor's due diligence in investigating the Property for Hazardous Substances. Grantor hereby (1) rele~:;,;s and waives any future claims against Lender for indemnity or contribution in the event Grantor becomes liable for cleanup or ether costs under any such laws; and (2) agrees to indemnify and hold harmless Lender against any and all claims, losses, liabilities, d r ~ ~ .I, s, penalties, and expenses which Lender may directly or indirectly sustain or suffer resulting from a breach of this section of the Mor[!l;~le or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release occurring prior to Grantor's ,,.vr~ership or interest in the Property, whether or not the same was or should have been known to Grantor. The provisions of this section ~[ the Mortgage, including the obligation to indemnify, shall survive the payment of the Indebtedness and the satisfaction and reconw;yo ~,, ~' the lien of this Mortgage and shall not be affected by Lender's acquisition of any interest in the Property, whether by foreclosure or o0~orwise. Loan No: 426360256735 MORTGAGE (i-' ~ 0 G 8 0 Page 2 (Continued) Nuisance, Waste. Grantor shall not cause, conduct or permit any nuisance ~J,,~ (~'ommit, permit, or suffer any stripping of or waste on or to the Property or any portion of the Property. Without limiting the generatily ~)l Ihe foregoing, Grantor will not remove, or grant to any other party the right to remove, any timber, minerals (including oil and gas), coal, ,:My, scoria, soil, gravel or rock products without Lender's prior written consent. Removal of Improvements, Grantor shall not demolish or remove any Iml)~':~'ments from the Real Property without Lender's prior written consent. As a condition to the removal of any Improvements, Lender may h~qu~re 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 m~,/ ,;[~ter upon the Real Property at all reasonable times to attend to Lender's interests and to inspect the Real Property for purposes of Grant~)~'s compliance with the terms and conditions of this'Mortgage. Compliance with Governmental Requirements. Grantor shall promptly coml,ly with all laws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable to the use or occupancy ~l tile Property. Grantor may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceedin(j, including appropriate appeals, so long as Grantor has notified Lender in writing prior to doing so and so long as, in Lender's sole opinion, [(.'nder's interests in the Property are not jeopardized. Lender may require Grantor to post adequate security or a surety bond, reasonably ~;:JLi,~;lactory to Lender, to protect Lender's interest. Duty to Protect. Grantor agrees neither to abandon or leave unattended tt~ PI(q)erty, Grantor shall do all other acts, in addition to those acts set forth above in this section, which from the character and use of th,~ PrLq)erty are reasonably necessary to protect and preserve the Property. DUE ON SALE - CONSENT BY LENDER. Lender may, at Lender's option, Lh~:h~re immediately due and payable all sums secured by this Mortgage upon the sale or transfer, without Lender's prior written consent, of ;,1[ ~)r any part of the Real Property, or any interest in the Real Property. A "sale or transfer" means the conveyance of Real Property or any rigl~l, tide or interest in the Real Property; whether legal, beneficial or equitable; whether voluntary or involuntary; whether by outright sale, de~l, i~slallment sale contract, land contract, contract for deed, leasehold interest with a term greater than three (3) years, lease-option contract, (, hy sale, assignment, or transfer of any beneficial interest in or to any land trust holding title to the Real Property, or by any other method ol ,:,,~rveyance of an interest in the Real Property. However, this option shall not be exercised by Lender if such exercise is prohibited by federal I;~,.v (~r by Wyoming law. TAXES AND LIENS. The following provisions relating to the taxes and liens on th,~ Property are part of this Mortgage: Payment. Grantor shall pay when due (and in all events prior to delinque~,:y) ;dl taxes, payroll taxes, special taxes, assessments, water charges and sewer service charges levied against or on account of the Prol,,:~ty, mid shall pay when due all claims for work done on or for services rendered or material furnished to the Property. Grantor shall maint;,~ tl~e Property free of any liens having priority over or equal to the interest of Lender under this Mortgage, except for the Existing Indeht~,,lr~,~,ss referred to in this Mortgage or those liens specifically agreed to in writing by Lender, and except for the lien of taxes and ass,:~,:;m~,~ls not due as further specified in the Right to Contest paragraph. ~ Right to Contest. Grantor may withhold payment of any tax, assessme~l, 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 jeop,~dized. If a lien arises or is filed as a result of nonpayment, Grantor shall within fifteen (15) days after the lien arises or, if a lien is fih;d, v~viLhi~ fifteen (15) days after Grantor has notice of the filing, secure the discharge of the lien, or if requested by Lender, deposit with Lu~,h:r ~:ash or a sufficient corporate surety bond or other security satisfactory to Lender in an amount sufficient to discharge the lien plus any ,:~;ls and permissible fees, or other charges that could accrue as a result of a foreclosure or sale under the lien. In any contest, Gram,,~ ~;h~dl defend itself and Lender and shall satisfy any adverse judgment before enforcement against the Property. Grantor shall name Lu~,h~ ~s an additional obligee under any surety bond furnished in the contest proceedings. Evidence of Payment. Grantor shall upon demand furnish to Lender satisfacl,~y uvidence of payment of the taxes or 8ssessments and shall authorize the appropriate governmental official to deliver to Lender at any lu~,: a written statement of the taxes and assessments against the Property. Notice of Construction. Grantor shall notify Lender at least fifteen (15) day~; i~:iore any work is commenced, any serv ces are furnished, or any materials are supplied to the Property, if any mechanic's lien, materi~h~,,,~'.~ lien, or other lien could be asserted on account of the work, services, or materials. Grantor will upon request of Lender furnish to [~der advance assurances satisfactory to Lender that Grantor can and will pay the cost of such improvements. PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring H~,, Property are a part of this Mortgage: Maintenance of Insurance. Grantor shall procure and maintain policies of fir,: i~Lsurance with standard extended coverage endorsements on a replacement basis for the full insurable value covering all Improvements o~ th,; Real Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of I ~:~H~.r. Policies shall be written by such insurance companies and in such form as may be reasonably acceptable to Lender. Grantor sh~dl H~diw.~r to Lender certificates of coverage from each insurer containing a stipulation that coverage will not be cancelled or diminished with,,~t a minimum of ten (10) days' prior written notice to Lender and not containing any disclaimer of the insurer's liability for failure to 0ire such notice. Each insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired i~ ~ny way by any act, omission or default of Grantor or any other person. Should the Real Property be located in an area designated by tl~.~ Director of the Federal Emergency Management Agency as a special flood hazard area, Grantor agrees to obtain and maintain Federal Fh~d 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 onpaid principal balance of the loan and any prior liens on the property securing the loan, up to the maximum policy limits set under th~ H~dional 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 c~ damage to the Property. Lender may make proof of loss if Grantor fails to do so within fifteen (15) days of the casualty. Whether ~r n~t Lender's security is impaired, Lender may, at Lender's election, receive and retain the proceeds of any insurance and apply the pror:~ud,.; to the reduction of the Indebtedness, payment of any lien affecting the Property, or the restoration and repair of the Property. If Lender ulucts to apply the proceeds to restoration and repair, Grantor shall repair or replace the damaged or destroyed Improvements in a manner s,'~[ish~ctory to Lender. Lender shall, upon satisfactory proof of such expenditure, pay or reimburse Grantor from the proceeds for the rea~;.,~,:d~lc cost of repair or restoration if Grantor is not in default under this Mortgage. Any proceeds which have not been disbursed within 180 days after their receipt and which Lender has not committed to the repair or restoration of the Property shall be used first to t~Y any amount owing to Lender under this Mortgage, then to pay accrued interest, and the remainder, if any, shall be applied to the princip;~d balance of the Indebtedness. If Lender holds any proceeds after payment in full of the Indebtedness, such proceeds shall be paid to Grar~t~r as Grantor's interests may appear. Compliance with Existing Indebtedness. During the period in which any Existi~[j Indebtedness described below is in effect, compliance with the insurance provisions contained in the instrument evidencing such Existing h~debtedness shall constitute compliance with the insurance provisions under this Mortgage, to the extent compliance with the terms ol this Mortgage would constitute a duplication of insurance requirement. If any proceeds from the insurance become payable on loss, d~e provisions in this Mortgage for division of proceeds shall apply only to that portion of the proceeds not payable to the holder of the Exi~;~iotj Indebtedness. LENDER'S EXPENDITURES. If Grantor fails (A) to keep the Property free of ail t;,~L~s, liens, security interestsl encumbrances, and other claims (B) to provide any required insurance on the Property, or (C) to make repairs t~ U~e Property or to comply with any obligation to maintain Existing indebtedness in good standing as required below, then Lender may do sr~. if any action or proceeding is commenced that would materially affect Lender's interests in the Property, then Lender on Grantor's h~h,df may, but is not required to, take any action that Lender believes to be appropriate to protect Lender's interests. All expenses incurred or i~ml hy Lender for such purposes will then bear interest at the rate charged under the Credit Agreement from the date incurred or paid by Lender t(~ the date of repayment by Grantor. All such expenses will become a part of the Indebtedness and, at Lender's option, will (A) be pay~d:h~, on demand; (B) be added to the balance of the Credit Agreement and be apportioned among and be payable with any installment paynL~nts to become due during either (1) the term of any applicable insurance policy; or (2) the remaining term of the Credit Agreement; or (C) be treated as a balloon payment which will be due and payable at the Credit Agreement's maturity; The Property also will secure paym~m[ ~f [hose amounts. The rights provided for in this paragraph shall be in addition to any other rights or any remedies to which Lender may be u~thh.~d on account of any default. Any such action by Lender shall not be construed as curing the default so as to bar Lender from any remedy tl~,~[ it otherwise would have had. WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership ~)1 Ih(~, Property are a part of this Mortgage: Title. Grantor warrants that: (a) Grantor holds good and marketable title of r,~:ord to the Property in fee simple, free and clear of all liens and encumbrances other than those set forth in the Real Property description or in the Existing Indebtedness section below or in any title insurance policy, title report, or final title opinion issued in favor of, and acc,~l][ud by, Lender in connection with this Mortgage, and (b) MORTGAGE ~,: ~,,, Page 3 Loan No: 426360256735 (Continued) Grantor has the full right, power, and authority tu e:.:~:ute and deliver this Mortgage to Lender. Defense of Title. Subject to the exception in tile i)m ~,!1~ apb above, Granter warrants and will forever defend the title to the Property against the lawful claims of all persons. In the event any ~,:li~,~ or proceeding is commenced that questions Grantor"s title or the interest of Lender under this Mortgage, Grantor shall defend the a<:li~.~ at Grantor's expense. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the pr<:)~:~,~li~g and to be represented in the proceeding by counsel of Lender's own choice, and Grantor will deliver, or cause to be delivered, t~, t,~der such instruments as Lender may request from time to time to permit such participation. Compliance With Laws. Grantor warrants that th~ Pr~)perty and Grantor's use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental auth~riti,~;. Survival of Promises. All promises, agreements, a~,l ~;~atements Grantor has made in this Mortgage shall survive the execution and delivery of this Mortgage, shall be continuing in nature and :~1~,~11 remain in full force and effect until such time as Borrower's Indebtedness is paid in full. EXISTING INDEBTEDNESS. The following provisions ~:o[~,:~,ning Existing Indebtedness are a part of this Mortgage: Existing Lien. The lien of this Mortgage securi~t/ II)~, Indebtedness may be secondary and inferior to the lien securing payment of an existing obligation. The existing obligation has a ~:~rr~.~nt principal balance of approximately $217818. Grantor expressly covenants and agrees to pay, or see to the payment of, the Existir~!l Indebtedness and to prevent any default on such indebtedness, any default under the instruments evidencing such indebtedness, or ar)y (I,:[,~ult under any security documents for such indebtedness. No Modification. Grantor shall not enter into any ~tlr,!ement with the holder of any mortgage, deed of trust, or other security agreement which has priority over this Mortgage by which tl~.~ agreement is modified, amended, extended, or renewed without the prior written consent of Lender. Grantor shall neither reques~ ~,,r accept any future advances under any such security agreement without the prior written consent of Lender. CONDEMNATION. The following provisions relating to <:~.~demnation proceedings are a part of this Mortgage: Proceedings. If any proceeding in condemnation i:~ lited, Grantor shall promptly notify Lender in writing, and Grantor shall promptly take such steps as may be necessary to defend the a(:li,~,~ and obtain the award. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proce~di~!l and to be represented in the proceeding by counsel of its own choice, and Grantor will deliver or cause to be delivered to Lender su,:h i~truments 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 ol the Property is condemned by eminent domain proceedings or by any proceeding or purchase in lieu of condemnation, Lender may at i~:; ,~I~;ction require that all or any portion of the net proceeds of the award be applied to the Indebtedness or the repair or restoration of th,~ I'r,~perty. The net proceeds of the award shall mean the award after payment of all reasonable costs, expenses, and attorneys' fees in<:~red by Lender in connection with the condemnation. IMPOSITION OF TAXES, FEES AND CHARGES BY GOVFF~NNIENTAL AUTHORITIES. The following provisions relating to governmental taxes, fees and charges are a part of this Mortgage: Current Taxes, Fees and Charges. Upon request I,y I ~mder, Grantor shall execute such documents in addition to this Mortgage and take whatever other action is requested by Lender to I,~ I,.,:l and continue Lender's lien on the Real Property. Grantor shall reimburse Lender for all taxes, as described below, together with all e×l,,~ses incurred in recording, perfecting or continuing this Mortgage, including without limitation all taxes, fees, documentary stamps, and ~th~;r charges for recording or registering this Mortgage. Taxes. The following shall constitute taxes to whi~:h this section applies: (1) a specific tax upon this type of Mortgage or upon all or any part of the Indebtedness secured by this Mort(j~!~,.: (2) a specific tax on Borrower which Borrower is authorized or required to deduct from payments on the Indebtedness secured by [l~i~ ['~'pe of Mortgage; (3) a tax on this type of Mortgage chargeable against the Lender or the holder of the Credit Agreement; and (4) a ,.q.~:ific tax on all or any portion of the Indebtedness or on payments of principal and interest made by Borrower. Subsequent Taxes. If any tax to which this sec~i,,~ .q~plies is enacted subsequent to the date of this Mortgage, this event shall have the same effect as an Event of Default, and Lender may ,:×ercise any or all of its available remedies for an Event of Default as provided below unless Grantor either (1) pays the tax before it h,~:(~mes delinquent, or (2) contests the tax as provided above in the Taxes and Liens section and deposits with Lender cash or a suffici~;~l , ,~rporate surety bond or other security satisfactory to Lender. SECURITY AGREEMENT; FINANCING STATEMENTS. ]h~ following provisions relating to this Mortgage as a security agreement are a part of this Mortgage: Security Agreement. This instrument shall conslit,~,~ a Security Agreement to the extent any of the Property constitutes fixtures, and Lender Shall have all of the rights of a secured I~arl¥ ~,~der the Uniform Commercial Code as amended from time to time. Security Interest. Upon request by Lender, Gran1<)~ ~;hall execute financing statements and take whatever other action is requested by Lender to perfect and continue Lender's securiW i~,~'rest in the Personal Property. In addition to recording this Mortgage in the real property recordS, Lender may, at any time an,I '..,'.,ithout further authorization from Grantor, file executed counterparts, copies or reproductions of this Mortgage as a financin(j st~t,~ment. Grantor shall reimburse Lender for all expenses incurred in perfecting or continuing this security interest. Upon default, ¢;r.'~tor shall assemble the Personal Property in a manner and at a place reasonably convenient to Grantor and Lender and make it avail;al,I,, to Lender within three (3) days after receipt of written demand from Lender. Addresses. The mailing addresses, of Grantor (del~,,r) and Lender (secured party) from which information concerning the security interest granted by this Mortgage may be obtained (each ;~ required by the Uniform Commercial Code) are as stated on the first page of this Mortgage. FURTHER ASSURANCES; ATTORNEY-IN-FACT. The f~lh~?~ing provisions relating to further assurances and attorney-in-fact are a part of this Mortgage: Further Assurances. At any time, and from time t() lime, upon request of Lender, Grantor will make, execute and deliver, or will cause to be made, executed or delivered, to Lender or to L~,h~r's designee, and when requested by Lender, cause to be filed, recorded, refiled, or rerecorded, as the case may be, at such times and i~ r;~ch offices and places as Lender may deem appropriate, any and all such mortgages, deeds of trust, security deeds, security agreem~'~[% financing statements, continuation statements, instruments of further assurance, certificates, and other documents as may, in the s()I~ ~pinion of Lender, be necessary or desirable in order to effectuate, complete, perfect, continue, or preserve (1) Borrower's and Grant~)r'~ ~)bligations under the Credit Agreement, this Mortgage, and the Related Documents, and (2) the liens and security interests created I~,,. Ibis Mortgage on the Property, whether now owned or hereafter acquired by Grantor. Unless prohibited by law or Lender agrees to tl~e , ,,~rary in writing, Grantor shall reimburse Lender for all costs and expenses incurred in connection with the matters referred to in this par~tl~ Attorney-in-Fact. If Grantor fails to do any of tile thin.rts referred to in the preceding paragraph, Lender may do so for and in the name of Grantor and at Grantor's expense. For such p~rF,,;~., Grantor hereby irrevocably appoints Lender as Grantor's attorney-in-fact for the purpose of making, executing, delivering, filing, r~.~,:,,~,ling, and doing all other things as may be necessary or desirable, in Lender's sole opinion, to accomplish the matters referred to in th~ i~receding paragraph. FULL PERFORMANCE. If Borrower pays all the Ind~ht,~dr~ess when due, terminates the credit line account, and otherwise performs all the obligations imposed upon Grantor under this Mortgage, I ,~der shall execute and deliver to Grantor a suitable satisfaction of this Mortgage and suitable statements of termination of any financing st~[,~ment on file evidencing Lender's security interest in the Rents and the Personal Property. Grantor will pay, if permitted by applicable I~,~, ,~ny reasonable termination fee as determined by Lender from time to time. EVENTS OF DEFAULT. Grantor will be in default under [hi~ Mortgage if any of the following happen: (A) Grantor commits fraud or makes a mate~i~)I misrepresentation at any time in connection with the Credit Agreement. This can include, for example, a false statement about Borrower's; ,~ Grantor's income, assets, liabilities, or any other aspects of Borrower's or Orantor's financial condition. (B) Borrower does not meet the repayment torn~; ,~I the Credit Agreement. (3) Grantor's action or inaction adversely affe<:t; lhe collateral or Lender's rights in the collateral. This can include, for example, failure to maintain required insurance, waste or destructive u,~ ,,f 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 licr3 ,,~] tile dwelling without our permission, foreclosure by the holder of another lien, or the Loan No: 426360256735 MORTGAGE ' 0F'82 Page4 (Continued) use of funds or the dwelling for prohibited purposes. RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event of I."~,:l~utt and at any time thereafter but subject to any limitation in the Credit Agreement or any limitation in this Mortgage, Lender, at Lender's ~1~1~,~, 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 ~,,li~:e to Grantor to declare the entire Indebtedness immediately due and payable, including any prepayment penalty which Grantor would h~ ~.quired to pay. UCC Remedies. With respect to all or any part of the Personal Property, I ~,Ju~ 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 Borrower or ~';~,~t~r, to take possession of the Property, including during the pendency of foreclosure, whether judicial or non-judicial, and collect the R,~I~, including amounts past due and unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness. in h. tl~,rance of this right, Lender may require any tenant or other user of the Property to make payments of rent or use fees directly to Lend,;~. II the Rents are collected by Lender, then Grantor irrevocably designates Lender as Grantor's attorney-in-fact to endorse instruments rec~iv,~H in payment thereof in the name of Grantor and to negotiate the same and collect the proceeds. Payments by tenants or other us,;~,; t,, Lender in response to Lender's demand shall satisfy the obligations for which the payments are made, whether or not any proper ,j~,,u~ds 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 ~ take possession of all or any part of the Property, with the power to protect and preserve the Property, to operate the Property p~,~,:,~dinu [oreclosure or sale, and to collect the Rents from the Property and apply the proceeds, over and above the cost of the receiver~t~il~. ~cjainst the Indebtedness. The receiver may serve without bond if permitted by law. Lender's right to the appointment of a receive~ ~hall exist whether Or not the apparent value of the Property exceeds the Indebtedness by a substantial amount. Employment by Lender ~;l~ll not disqualify a person from serving as a receiver. Judicial Foreclosure. Lender may obtain a judicial decree foreclosing Grant~ '~; interest in all or any part of the Property. Nonjudicial Sale. Lender may foreclose Grantor's interest in all or in any p~t -f the Property by non-judicial sale, and specifically by "power of sale" or "advertisement and sale" foreclosure as provided by statute. Deficiency Judgment. If permitted by applicable law, Lender may obtain ~ j-,hjment for any deficiency remaining in the Indebtedness due to Lender after application of all amounts received from the exercis~ of thu ~itjhts l~rovided in this section. Tenancy at Sufferance, If Grantor remains in possession of the Property ~l[,..r the Property is 'sold as provided above or Lender otherwise becomes entitled to possession of the Property upon default of Grantor, ~';~ntor shall become a tenant at sufferance of Lender or the purchaser of the Property and shall, at Lender's option, either (1) pay a ~,~,~;~,~able rental for the use of the Property, or (2) vacate the Property immediately upon the demand of Lender. Other Remedies. Lender shall have all other rights and remedies provided ir~ [hi,~ Mortgage or the Credit Agreement or available at law or in equity. Sale of the Property. To the extent permitted by applicable law, Borrower ~, ~,1 Grantor hereby waives any and all right to have the Property marshalled. In exercising its rights and remedies, Lender shall be free to s,:II ~dl 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 ~,~ ~dl or any portion of the Property. Notice of Sale. Lender will give Grantor reasonable notice of the time and i,lll~;e of any public sale of the Personal Property or of the time after which any private sale or other intended disposition of the Personal I',cq~)rty is to be made. Reasonable notice shall mean notice given at least ten (10) days before the time' of the sale or disposition. Election of Remedies. All of Lender's rights and remedies will be cumul~,ti,.,~; and may be exercised alone or together. An election by Lender to choose any one remedy will not bar Lender from using any other ~,.~,~edy. If Lender decides to spend money or to perform any of Grantor's obligations under this Mortgage, after Grantor's failure to do so, tl~,~[ d~,cision by Lender will not affect Lender's right to declare Grantor in default and to exercise Lender's remedies. Expenses, To the extent not prohibited by applicable law, all reasonable u'~l,,~nses Lender incurs that in Lender's opinion are necessary at any time for the protection of its interest or the enforcement of its rights. '.J~dl become a part of the loan payable on demand, and shall bear interest at the Note rate from the date of expenditure until repaid. E:,p~;nses covered by this paragraph include, without limitation, however subject to any limits under applicable law, Lender's expenses for h.,~kruptcy proceedings (including efforts to modify or vacate the automatic stay or injunction) and appeals, to the extent permitted by applic~,hh~ h'~w. NOTICES. Any notice required to be given under this Mortgage, including witho~:t ti~nitation any notice of default and any notice of sale shall be given in writing, and shall be effective when actually delivered, when actually r~.~:,:iv,~.d by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when d,,l~o.~ited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the begi~,j of this Mortgage. All copies of notices of foreclosure from the holder of any lien which has priority over this Mortgage shall be sent to Lu,~h.,r's address, as shown near the beginning of this Mortgage. Any person may change his or her address for notices under this Mortgage h,,, !living formal written notice to the other person or persons, specifying that the purpose of the notice is to change the person's address. For ,,,ti~:e purposes, Grantor agrees to keep Lender informed at all times of Grantor's current address. Unless otherwise provided or required by h~,..,', il [here 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 Granh~r',,~ responsibility to tell the others of the notice from Lender. Notwithstanding the foregoing, the address for notice for Lender is: Bank One, P.O. Box 901008, Fort Worth, TX 76101-2008. IDENTITY OF LENDER. Lender is Bank One, N.A., a national banking association ~.,~i[h its main offices located in Columbus, Ohio. NON-WAIVER. A waiver by any party of a breach of a provision of this Mortgag~ ~¢h~ll not constitute a waiver of or prejudice the party's right otherwise to demand strict compliance with that provision or any other provision. SUPPLEMENT TO PERSONAL PROPERTY DEFINITION. It is the intention of Le~d,;r only to take a security interest in and retain a lien on that personal property considered fixtures under the Uniform Commercial Code as adop[~;(I iR the jurisdiction where this Mortgage is filed of record as same may be amended from time to time or such other statute of such jurisdi~:[i~n that defines property affixed to real estate and no other personal property. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a I~r[ of this Mortgage: Amendments. What is written in this Mortgage and in the Related Docun',,~,~t~; is Grantor's entire agreement with Lender concerning the matters covered by this Mortgage. To be effective, any change or amen(h~,,~,~t [o 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 Mortgage are for conveniences, i,~rposes only and are not to be used to interpret or define the provisions of this Mortgage. Governing Law. This agreement will be governed by and interpreted in ae~:~rdanoe with federal law and the laws of the State of Wyoming except for matters related to: (1) interest and the exportation of interest, whir:h will be governed by and interpreted in accordance with federal law (including, but not limited to, statutes, regulations, interpretational;, ~,~d opinions) and the laws of the State of Ohio; and (2) the validity and enforcement of Lender's security interest in the Property, which ...',,ill be governed by the laws of the State where the Property is located. However, if there ever is a question about whether any provisiu~ ~l the agreement is valid or enforceable, the provision that is questioned will be governed by whichever of the governing state or federal h,w.~; [hat would find the provision to be valid and enforceable. The loan transaction which is evidenced by this and other related docu~r~,:~t.,; has been approved, made and funded, and all necessary documents have been accepted by Lender in the State of Ohio. Joint and Several Liability. All obligations of Borrower and Grantor under [hi.~ Mortgage shall be joint and several, and all references to Grantor shall mean each and every Grantor, and all references to Borrow,:~ ~,h~dl mean each and every Borrower. This means that each Borrower and Grantor signing below is responsible for all obligations in this I'A, No Waiver by Lender. Grantor understands Lender will not give up any uf I ,~Her's rights under this Mortgage unless Lender does so in writing. The fact that Lender delays or omits to exercise any right will not ~m~ that Lender has given up that right. If Lender does agree in writing to give up one of Lender's rights, that does not mean Grantor will ~,~ h~ve to comply with the other provisions of this Mortgage. Grantor also understands that if Lender does consent to a request, that d~; ~o[ mean that Grantor will not have to get Lender's consent again if the situation happens again. Grantor further understands that just h~:~use Lender consents to one or more of Grantor's requests, Loan No: 426360256735 MORTGAGE '".. '~- 0 L'~; 8 3 Page 5 (Continued) that does not mean Lender will be required to c(~,~,~t to any of Grantor's future requests. Grantor waives presentment, demand for payment, protest, and notice of dishonor. Grantor ,.'.~;,~,.(~s all rights of exemption from execution or similar law in the Property, and Grantor agrees that the rights of Lender in the Property un(h,~ ~l~i~; Mortgage are prior to Grantor's rights while this Mortgage remains in effect. Severability. If a court finds that any provision cji th,.. r.lortgage is not valid or should not be enforced, that fact by itself will not mean that the rest of this Mortgage will not be valid or enfor(.,:,t Therefore, a court will enforce the rest of the provisions of this Mortgage even if a provision of this Mortgage may be found to be invali(I ,ir unenforceable. Merger. There shall be no merger of the interest ~r ,,..~;~te created by this Mortgage with any other interest or estate in the Property at any time held by or for the benefit of Lender in any cal)a(:~¥, without the written consent of Lender. Successors and Assigns. Subject to any limitation,~ .~l~ded in this Mortgage on transfer of Grantor's interest, this Mortgage shall be binding upon and inure to the benefit of the parties, their su,:, ,~ssors and assigns. If ownership of the Property becomes vested in a person other than Grantor, Lender, without notice to Grantor, may d,~al with Grantor's successors with reference to this Mortgage and the Indebtedness by way of forbearance or extension without releasm,j r~antor from the obligations of this Mortgage or liability under the Indebtedness. Time is of the Essence. Time is of the essence in th,~ i~,~rformance of this Mortgage. Waiver of Homestead Exemption. Grantor hereby ml,,;~';~'s and waives all rights and benefits of the homestead exemption laws of the State of Wyoming as to all Indebtedness secured by this M~rt!jage. DEFINITIONS. The following words shall have the followir~!I meanings when used in this Mortgage: Borrower. The word "Borrower" means KEITH C [~f.f{HHARDSEN, and all other persons and entities signing the Credit Agreement. Credit Agreement. The words "Credit Agreement" mean the credit agreement dated November 9, 2004, ~n the original principal amount of ~25,000.00 from Borrower to Lm~h~r, together with all renewals o~, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the promiss(,~¥ ~ote or agreement. The maturity date of this Mortgage is November 9, 2019. Environmental Laws. The words "Environmental I..a,.¥s" mean any and all state, federal and local statutes, regulations and ordinances relating to the protection of human health or the r~nvi~onment, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amr~r~d~.~l, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("~?~F{A"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, ,~_ [~..~.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" m~;~r~ any of the events of default set forth in this Mortgage in the events of default section of this Mortgage. Existing Indebtedness. The words "Existing h~d~..I,l,.,Iness" mean the indebtedness described in the Existing Liens provision of this Mortgage. Grantor. The word "Grantor" means KEITH C BERHII/~F{DSEN and PATRICIA EBERNHARDSEN. Hazardous Substances. The words "Hazardous $~d,..tances" mean materials that, because of their quantity, concentration or physical, chemical or infectious characteristics, may cau~ ,,r pose a present or potential hazard to human health or the environment when improperly used, treated, stored, disposed of, g~,r~,~rated, manufactured, transported or otherwise handled. The words "Hazardous Substances" are used in their very broadest set~s~ m~(I include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed under the Environment,~I [.~)ws. The term "Hazardous Substances" also includes, without limitation, petroleum and petroleum by-products or any fraction thereof m~,l asbestos. Improvements. The word "Improvements" mean'.~ all ~.×isting and future improvements, buildings, structures, mobile homes affixed on the Real Property, facilities, additions, replacements and ~t her construction on the Real Property. Indebtedness. The word "Indebtedness" means all i,rincipal, interest, and other amounts, costs and expenses payable under the Credit Agreement or Related Documents, together with aH r~.~ewals of, extensions of, modifications of, consolidations of and substitutions for the Credit Agreement or Related Documents and any am,,{~nts expended or advanced by Lender to discharge Grantor's obligations or expenses incurred by Lender to enforce Grantor's obligat~,)[~'. ~,~der this Mortgage, together with interest on such amounts as provided in this Mortgage. In addition, and without limitation, the term "Indebtedness" includes all amounts identified in the Revolving Line of Credit paragraph of this Mortgage. However, the term "ln(lehtedness" is subject to the limitations identified in the Maximum Lien section of this Mortgage. Lender. The word "Lender" means Bank One. HA [s successors and assigns. The words "successors or assigns" mean any person or company that acquires any interest in the Credit Mortgage. The word "Mortgage" means this Vorh=.'' hetweenGrantor and Lender. Personal Property. The words "Personal Property" ~,;an all equipment, fixtures, and other articles of personal property now or hereafter owned by Grantor, and now or hereafter attachnrt affixed to the Real Property; together with all access=ohs, parts, and additions to, all replacements Of, and all substitutions for env '-'~ ~< ~ property; and together with all proceeds (including without limitation all insurance proceeds and refunds of premiums) from any sole .... [her disposition of the Property. Property. The word "Property" means collectivel', u~, Real Property and the Personal Property. Real Preperty. The words "Real Property" mean tt~, ~,,;~1 property, interests and rights, as further described in this Mortgage. Related Documents. The words "Related E)ooum,~t:s' mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, m<)rr~.~<-.~s, deeds of trust, security deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hero,,f~,', ~xisting, executed in connection with the Indebtedness. Rents. The word "Rents" means all present and rH['~r(; 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 GRANTOR AGREES TO ITS TERMS. GRANTOR: ~'~ECTH C BER'NHARDSEN, Indivi a y l Loan No: 426360256735 MORTGAGE (Continued) INDIVIDUAL ACKNOWLEDge?!= ........ On this day before me, the undersigned Notary Public, personally appeared KLITH C BERNHARDSEN and PATRICIA E BERNHARDSEN, to me known to be the individuals described in and who executed the Mortgage, an,~ m:knowledged that they signed the Mortgage as their free and voluntary act and deed, for the uses and purposes therein mentioned. Given u~r my hand and official seal this ~--~1~~,-~' day of _/ · ; £~'~,~j. , 20 ~ .