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HomeMy WebLinkAbout905168RECORDATION REQUESTED BY: The Jackson ~tate ~ank & Trust W~st Office P.O..Box 1788 50.Buff_aid Way ~on, ~ 83~1 WHEN RECORDED MAIL TO: 'The Jackson State .Bank & Trust West Office P.O..Box 1788 50 Buffalo Way Jackson, WY {13001 SEND TAX NOTICES TO: The Jackson State .Bank & Trust West Office P.O..Box 17B8 50 .Buffalo Way Jackson, WY B3001 ~.~5~ document is be-!,ng rs::." I%' S~t:!hwest Title ~ ~,OUrt~' ez~t.y. RECEIVED 12/10/2004 at 4:00 PM RECFIVING # 905168 BOOK: 574 PAGE: 495 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY SPACE ABOVETHIS LINE IS FOR RECORnFR'S U~E ONLY MORTGAGE MAXIMUM LIEN. The lien of this Mortgage shall not exceed at any one time $15,1)00.1)1). THIS MORTGAGE dated December 8, 2004, is made and executed between Sherry A. ]_uthi, as Trustee of Wind River Management Trust dated June 22, 1998, whose address is P.O. Box 107, Freedom, WY 83120 (referred to .below as "Grantor") and The Jackson State Bank & Trust, whose address is P.O. Box 1788, 51) Buffalo Way, .Jackson, WY 83001 (referred to below as "Lender"). GRANT OF MORTGAGE. For vel-able consideration, Grantor mortgages and conveys to Lender all of·Grantor's right, title, and interest in and to lJ~ following described reel property, together with all existing or mJh.~equently erected r~r athxed buildings, improvements and fixtures; all easements, rights of way, and app-rtenanc.~.s; ail water, water rights, watercourses and ditch rights (including stock in utilities with ditch or irrigation rights); ,and all other rights, royalties, and profits relating to ~ reel property, including without limitatior~ ~dl minerals, oil, gas, geothermal and similar rrmtmrs, (the "Real Property") located in Lincoln County, State of Wyoming: See Exhibit 'A', which is attached to this Mortgage and made a part of Ihis Mortgage as if fully set forth herein. The Real Property or its address is commonly known as 300 State Line Road, Freedom, WY 83120. REVOLVING .LINE DF CREDIT. This Mortgage _~_~'_-.,res the Indebtedness including, without limitation, a revolving line of credit, which obligates .Lender to re. eke advape~,~ to .Borrower so long as .Borrower complies with all the terms of the Credit Agreement..Such may J~e made. repaid, and remade from time to time, subject to the limitation that tim total outstanding balance owing at any one time, not including finance charges on such :balance at a fi~r_~..! or variable rate or sum as provided in the Credit Agreement, any temporary overages, other charges, and any amounts ezpe__nrb~ or adva~_c_~_ as provid~l in either the Indebtedness paragraph or this paragraph, shall not exceed ~he Credit .Limit as provid~ in the Credit Agreement. It is the intention of Grantor and Lender that this Mortgage secures the batance outstanding ander the Credit Agreement from time tn time from zero up to the Credit Limit as provided in this Mortgage and any intermediate Grantor presently assigns to.Lender ail of Grantor's right, title, and interest in and to all t'~ ~sent and future leases of the Property and all Rents from the Property. In addition, Grantor grants to.Lender a Uniform Commercial Code security int~ e~t in the Personal Property and Rents. -rills MORTGAGE, IN¢-! HBING'THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT DF 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 FO/LOWING TERMS: GRANTDR'S WAIVERS. Grantor waives all rights or defenses arising by reason of a~y "one action" or "anti-deficiency" law, or any other Jaw which may prevent .Lender from bringing any action against Grantor, including a claim for defic~cy to the extent .Lender is otherwise entitled to a claim for deficiency, before or after Lender's commencement or completion of any forec osure act~ .etther judicially or by exercise of a power of sale. GRANTOR'S REPR~-c~=NTATIONS AND WARRANTIES. Grantor warrants that: (a) tt)i~ Mortgage is executed at Borrower's request and not at the request of.Lender; (b) Grantor has the/ell ~)ower, right, and authority to enter into this Llorl~age and to hypothecate the Prc~oerty; (c) the provisions of ~his Mortgage do not conflict with, or result in a default under any agreement or other inst~ ument binding upon Grantor and do not result in a violation of any Jaw, regulation, court decree or order applinahle to Grantor; (d) Grantor has established adequate means of obtaining from Borrower on a continuing 13asis information about Borrower's financial condition; and (e) .Lender has made no representation to Grantor about Borrower (including without limitatinn the creditworthiness of Borrower). PAYMENT AND PERFORMANCE. ~T. xcept as otherwise provided in 1his Mortgage, t~.~ower shall pay to .Lender all Indebtedness secured by this Mortgage as it :becomes due, and Borrower.and Grantor shall strictly perform all Borrowers and G rantor's obligations under this Mortgage. POSSESSION AND MAINTENANCE DFTHE PROPERTY. Borrower and Grantor a~j~eu that Borrower's and Grantor's possession and use of the Property shall be governed by the following provisions: Pn,~-~,,:,aion 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 the Property; and (3) collect the Rents from the Property. .Duty Io Maintain. Grantor shall maintain the Property in good condition and H~umptly perform all repairs, replacements, and maintenance r~e¢-Rsary to preserve its vah,~ Compliance With Environmental Laws. Grantor represems and warrants to L~ ~{~:~ that: (1) During the period of Grantor's ownership of the :Property, there has been no use, generation, memY, aclure, storage, treetment chsposa{, release or threetened release of .any Ha?arcIous Rnbstance by .any per. on o.n, under, ~hout ~r from the Pmpert..~,; ~) Grantor h~:~ :;0 knowledge of, or reason to believe that there has besn, except as previously disclosed to and acknowledged by .Lender in writing, (a) any b~ each or violation of any Environmental Laws, (b) any use, generation, manufant.re, storage, traatrnsnt, disposal, release or threatened release of any Hazardous Substance on, under, ~hn~t or from the :Property by any prior owners or occupants ofthe Property, or (c) any ant.el or threatened litigation or claims of any kind by any person relating to such matters; ,and (3) .~_xcept as previously disc. losed to and acknowledged by Lender in writing, (a) neither Grantor nor any tenant, contractor, .agent or other ~authodzed user of the Property shall use, generate, manulacture, store, treat, dispose of or release any H~7~rdous Substance on, under, ~hnm or fromlhe Property; and (b) any such activity shall be conducted in compliance with all applicable federal, state, and local Jaws, regulations and ordinances, including with~rt limitation all :Environm,;¢~tal Laws. Grantor authorizes .Lender and its agents to enter upon the Property to make such inspections and tests, at Grantor's expense, as [~ ~der may deem appropriate to determine compliance of the :Property with this section of the Mortgage. Any inspections or tests made by Lender shall be for .Lender's purposes only and shall not .be construed to create any responsibility or liability on the part of .Lender to Granto~ or to any other person. -l'be representations and warranties contained herein are/~esed on Grantors 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 cteenup or other costs under any such Jaws; and (2) agrees to indemnify ~cl hold harmless .Lender against any and ail claims, losses, liabilities, damages, penalties, and expenses which .Lender may directly or indirectly sustain or suffer resulting from a breech of ti tis section of the Mort?ge or as a consequence of any use, generation, manufacture, storage, disposal, release or threetened retease occumng prior to Grantor's ownership or interest in lt~ Property, whether or not the same was or should have been known to Grantor. The provis~ ~s of this section of the Mortgage, including the nhligation to indemnify, shall survive the payment of the Indebtedness and the satisfaction a~,.J ~econveyance of the lien of this Mortgage and shall not ,affected :by.Lender's acquisition ofany interest in the Property, whether by forecIos ur e or otherwise. 0496 0.~0~%~ MORTGAGE "- Loan No: 2114278 (Continued) Page 2 · Nuisance, Waste. Grantor shall not cause, conduct or permit any nuisance nor cc,~mit, permit, or suffer any stripping of or waste on or to the Property or any portion of the Property. Without limiting the generality of the foreguiug, Grantor will not remove, or grant to any other party the right to remove, any timber, minerals (including oil and gas), coal, clay, scoria, soil, gu~vul or rock products without Lender's prior written consent. Removal of Improvements. Grantor shall not demolish or remove any Improvements from the Real Property without Lender's prior written consent. As a condition to the removal of any Improvements, Lender may require G~antor 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 entur 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 complia~ce with the terms and conditions of this Mortgage. Compliance with Governmental Requirements. Grantor shall promptly comply with all 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 during any proceeding, 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, 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. Duty to Protect. Grantor agrees neither to abandon Or leave unattended the Property. Grantor shall do all other acts, in addition to those acts set forth above in this section, which from the character and use of the Property are reasonably necessary to protect and preserve the Property. DUE ON SALE - CONSENT BY LENDER. Lender may, at Lender's option, declare immediately due and payable all sums secured by this Mortgage upon the sale or transfer, without Lender's prior written consent, of all or any part of the Real Properly, or any interest in the Real Property. A "sale or transfer" means the conveyance of Real Property or any right, title or interest in the Real Properly; whether legal, beneficial or equitable; whether voluntary or involuntary; whether by outright sale, deed, installment sale contract, land court,act, contract for deed, leasehold interest with a term greater than three (3) years, lease-option contract, or by sale, assignment, or transfer of any beuuficial interest in or to any land trust holding title to the Real Property, or by any other method of conveyance of an interest in the Real Property. However, this option shall not be exercised by Lender if such exercise is prohibited by federal law or by Wyoming law. TAXES AND LIENS. The following provisions relating to the taxes and liens on the Propriety are part of this Mortgage: Payment. Grantor shall pay when due (and in all events prior to delinquency) all ta×us, payroll taxes, special taxes, assessments, water charges and sewer service charges levied against or on account of the Property, and shall pay when due all claims for work done on or for services rendered or material furnished to the Property. Grantor shall maintain the Property hca el any liens having priority over or equal to the interest of Lender under this Mortgage, except for the Existing Indebtedness referred to in this Mortgage or those liens specifically agreed to in writing by Lender, and except for the lien of taxes and assessments not due as furtr~er specified ur the Right to Cpntest 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 of nonpayment, Grantor shall within fifteen (15) days after the 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 olher security satisfactory to Lender ~n an amount sufficient to discharge the lien plus any costs and reasonable attorneys' fees, or other chargus 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 iudgment before 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 to Lender satisfactory evidence of payment of the taxes or assessments and shall authorize the appropriate governmental official to deliver to Lender at any time a written statement of the taxes and assessments against the Property. Notice of Construction. Grantor shall notify Lender at least fifteen (15) days before any work is commencea any services are furnished, or any materials are supplied to the Property, if any mechanic's lien, materialmen's lien, or ott~er lien could be asserted on account of the work, services, or materials. Grantor will upon request of Lender furnish to Lender advance assurancus satisfactory to Lender that Grantor can and will pay the cost of such improvements. PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the Property are a part 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 the full insurable value covering all Improvements on the Real Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard 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 stipulation that coverage will not be cancelled or diminished without a minimum of ten (10) days' prior written notice to Lender and not containing any disclaimer of the insurer's liability for failure to give such notice. Each insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired in any way by any act, omission or default of Grantor or any other person. Should the Real Property be located in an area designated by 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 secunng the loan, up to the maximum 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. Applicatlon of Proceeds. Grantor shall promptly notify Lender of any loss or damaue to the Property. 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, at Lender's election, receive and retain the proceeds of any insurance and apply the proceeds to the reduction of the ludubtedness, payment of any lien affecting the Properly, or the restoration and repair of the Property. If Lender elects to apply the proceeds t~ restoration and repair, Grantor shall repair or replace the damaged or destroyed Improvements 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 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 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 Indebtedness. If Lender holds any proceeds aflor payment in full of the Indebtedness, such proceeds shall be paid to Grantor as Grantor's interests may appear. Compliance with Existing Indebtedness. During the period in which any Existing hldobtedness described below is in effect, compliance with the insurance provisions contained in the instrument evidencing such Existing Indebteduess shall constitute compliance with the insurance provisions under this Mortgage, to the extent compliance with the terms of this Mortgage would constitute a duplication of insurance requirement. If any proceeds from the insurance become payable on loss, the provisions in this Mortgage for division of proceeds shall apply only to that portion of the proceeds not payable to the holder of the Existing Indebtedness. LENDER'S EXPENDITURES. If Grantor fails (A) to keep the Property free of all taxes, liens, security interests, encumbrances, and other claims, (B) to provide any required insurance on the Property, (C) to make repairs to the Property or to comply with any obligation to maintain Existing Indebtedness in good standing as required below, then Lender may do so. If any action or proceeding is commenced that would materially affect Lender's interests in the 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. All expenses incurred or paid by Lender for such purposes will then bear interest at the rate charged under the Credit Agreement from the date incurred or paid by Lender to the date of repayment by Grantor. All such expenses will become a part 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 installment payments 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 tile Credit Agreement's maturity. The Mortgage also will secure payment of these amounts. The rights provided for in this paragraph shall be in acidition to any other rights or any remedies to which Lender may be entitled on account of any default. Any such action by Lender shall not be con~trued as curing the default so as to bar Lender from any remedy that it otherwise would have had. WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the P~operty are a part of this Mortgage: Title. Grantor warrants that: (a) Grantor holds good and marketable title of record to tile 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 accepted by, Lender h) connection with this Mortgage, and (b) Grantor has the full right, power, and authority to execute and deliver this Mortgage to Lender. Defense of Title. Subject to the exception in the paragraph above, Grantor warrauls and will forever defend the title to the Property against the lawful claims of all persons. In the event any action or proceeding is commenced thai questions Grantor's title or the interest of Lender under this Loan No: 2114278 (Continued) Page 3 Mortgage, Grantor shall defend the action at Grantor's expense. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding hy counsel of Lender's own choice, and Grantor will deliver, or cause to be delivered, to Lender such instruments as Lender may request from time to time to permit such participation. Compliance With Laws. Grantor warrants that the Property and Grantor's use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities. Survival of Promises. All promises, agreements, and statements Grantor has rt~ade in this Mortgage shall survive the execution and delivery of this Mortgage, shall be continuing in nature and shall remain in full force and effect until such time as Borrower's Indebtedness is paid in full. EXISTING INDEBTEDNESS. The following provisions concerning Existing Indebtedness are a part of this Mortgage: Existing Lien. The lien of this Mortgage securing the Indebtedness may be secondary and inferior to an existing lien. Grantor expressly covenants and agrees to pay, or see to the payment of, the Existing Indebtedness and to prevent any default on such indebtedness, any default under the instruments evidencing such indebtedness, or any default under any sect~rity documents for such indebtedness. No Modification. Grantor shall not enter into any agreement with the holder of a~)y mortgage, deed of trust, or other security agreement which has priority over this Mortgage by which that agreement is modified, amended, exte~ded, or renewed without the prior written consent of Lender. Grantor shall neither request nor accept any future advances under any such scour ity agreement without the prior written consent of Lender. CONDEMNATION. The following provisions relating to condemnation proceedings are a I~art of this Mortgage: Proceedings. If any proceeding in condemnation is filed, Grantor shall promptly ~otify Lender in writing, and Grantor shall promptly take such steps as may be necessary to defend the action and obtain the award. Grantor m~y be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of its own choice, and Grantor will deliver or cause to be delivered to 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 the award be applied to the Indebtedness or the repair or restoration of the Property. The net proceeds of the award shall mu~ 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, Grantdr shall execute such documents in addition to this Mortgage and take whatever other action is requested by Lender to perfect and continue Lender's liu~ on the Real Property. Grantor shall reimburse Lender for all taxes, as described below, together with all expenses incurred in recording, perfecti~g 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 Mortgage or upon all or any part of the Indebtedness secured by this Mortgage; (2) a specific tax on Borrower which Borrower is authorized or required to deduct from payments on the Indebtedness secured by this type of Mortgage; (3) a tax on this type of Modgage chargeable against the Lender or the holder of the Credit Agreement; and (4) a specific tax on all or any portion of the Indebtedness or on payments of principal and interest made by Borrower. Subsequent Taxes. If any taxto wh ch this section applies is enacted subseque~]t to the date of this Mortgage, 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 it 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 Leander. SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to this Mortgage as a security agreement are a part of this Mortgage: Security Agreement. This instrument shall constitute a Security Agreement to the extent any of the Property constitutes fixtures, 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 pedect and continue Lender's security interest in the Personal Property. In addition to recording this Mortgage in the real property records, Lender may, at any time and without 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 P(.~rsonal Property not affixed to the Property in a manner and at a place reasonably convenient to Grantor and Lender and make it available to Leander 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 p~ty) from which information concerning the security interest granted by this Mortgage may be obtained (each as required by the Uniform Commercial Code) are as stated on the first page of this Mortgage. FURTHER ASSURANCES; ATrORNEY-IN-FACT. The following provisions relating to lurther assurances and attorney-in-fact are a pad 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 filect recorded, refiled, 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 further assurance, certificates, and other documents as may, in the sole opinion of Lender, be necessary or desirable in order to effectuate, complete, perfect, continue, or preserve (1) Borrower's and Grantor's obligations under the Credit Agreement, this Mortgage, and the Related Documents, and (2) the liens and security interests created by this Mortgage on the Property, whether now owned or hereafter acquired by Grantor. Unless prohibited by law or Lender agrees to the contrary in writing, Grantor shall reimburse Lender for all costs and expenses incurred in connection with the matters referred to in this paragraph. Attorney-in-Fact. If Grantor fails to do any of the things referred to in the precedi~g 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, to accomplish the matters referred to in the preceding paragraph. FULL PERFORMANCE. If Borrower 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, if permitted by applicable law, any reasonable termination fee as determined by Lender from time to 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 Borrower's or Grantor's income, assets, liabilities, or any other aspects of Borrower's or Grantor's financial coiMition. (B) Borrower 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 Property, Lender shall have all the rights and remedies of a secured party under the Uniform Commercial Code. Collect Rents. Lender shall have the right, without notice to Borrower or Grantor, to take possession of the Property, including during the pendency of foreclosure, whether judicial or non-judicial, and collect the Rents, including amounts past due and unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness. In fudheranca of this right, Lender may require any tenant or other user of Loan No: 2114278 ,...". 0498 ~.... ,. - MORTGAGE O~(jal~ (Continued) Page 4 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 i~ tile name of 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 Property preceding foreclosure or sale, and to collect the Rents from the Property and apply the proceeds, over and above the cost of the receivership, against the Indebtedness. Tile receiver may serve without bond if permitted by law. Lender's right to the appointment of a receiver shall exist whether or not the appare~t value of the Property exceeds the Indebtedness 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 Property. 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 of sale" or "advertisement and sale" foreclosure as provided by statute. Deficiency Judgment. If 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 i~ this section. Tenancy at Sufferance. If Grantor remains in possession of the Property after the Property is sold as provided above or Lender otherwise becomes entitled to possession of the Property upon default of Grantor, Grantor shall b~.~come a tenant at sufferance of Lender or the purchaser of the Property and shall, at Lender's option, either (1) pay a reasonable rental for the use of the Property, or (2) vacate the Property irr~ediately upon the demand of Lender. Other Remedies. Lender shall have all other rights and remedies provided in this Mortgage or the Credit Agreement or available at taw or in equity. Sale of the Property. To the extent permitted by applicable law, Borrower and Grantor hereby waives any and all right to have the Property marshalled. In exercising its rights and remedies, Lender shall be free to sell all or any pad 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 portion of the Property. 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 notice shall mean notice given at least ten (10) days before the time of the sale or disposition. Any sale of the Personal Property may be made in conjunction with any sale of the Real · Property. Election of Remedies. All of Lender's rights and remedies will be cumulative and m~ty t~o 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 wili not affect Lender's right to declare Grantor in default and to exercise Lender's remedies. Attorneys' Fees; Expenses. If Lender institutes any suit or action to enforce any of the ~ 'ms of this Mortgage, Lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys' fees at trial and upon any appeak Whether or not any court action is involved, and to the extent not prohibited by law, all reasonable expenses Lender incurs that in Lencher's opinion are necessary at any time for the protection of its interest or the enforcement of its rights shall become a part of the Indebtedness payable on demand and shall bear interest at the Credit Agreement rate from the date of the expenditure until 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 attorneys' fees after default and referral to an attorney not Lender's s~lar~od employee and expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and a~ty anticipated post-judgment collection services, the cost of searching records, obtaining title reports (including foreclosure reports), surveyors' r~;pofrs, 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 to 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 telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States ma~. as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Mortgage. All copies of notices of foreclosure from the holder of any lien which has priority over this Mortgage shall be sent to Lender's address, as shown near the beg,~n~)g of this Mortgage. Any person may change his or her address for notices under this Mortgage by giving formal written notice to the other perso~ or persons, specifying that the purpose of the notice is to change the person's address. For notice purposes, Grantor agrees to keep Lender inlormed at ~1] 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 PROVISIONS. The following miscellaneous provisions are a part of this Mortgage: Amendments. What is written in this Modgage and in the Related Documents is G rantor's entire agreement with Lender concerning the matters covered by this Mortgage. To be effective, any change or amendment to this Modgaoe 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 convenience purposes only and are not to be used to interpret or define 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. Choice of Venue. If there is a lawsuit, Grantor agrees upon Lender's request to submit to the jurisdiction of the courts of Teton County, State of Wyoming. Joint and Several Liability. All obligations of Borrower and Grantor under this Mortgage shall be joint and several, and all references to Grantor shall mean each and every Grantor, and all references to Borrower shall mean each and every Borrower. This means that each Borrower and Grantor signing below is responsible for all obligations in this Mortgage. No Waiver by Lender. Grantor understands I~ender will not give up any of Lender's ~igms under this Mortgage unless Lender does so in writing. The fact that Lender delays or omits to exercise any right will not mean that Lender has given up that right. If Lender does agree ~n writing to give up one of Lender's rights, that does not mean Grantor will not have to comply with the other provisions of this Mortgage. Grantor also understands that if Lender does consent to a request, that does not mean that Gra~tor will not have to get Lender's consent again if the situation happens again. Grantor further understands that 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 presenrmem, demand for payment, protest, and notice of dishonor. Grantor waives all rights of exemption from execution or similar law in the Property, and Grantor agrees that the rights of Lender in the Property under this Mortgage are prior to Grantor's rights while this Mortgage remains in effect. Severabllity. If a court finds that any provision of this Mortgage is not valid or shouM no! be enforced, that fact by itself will not mean that the rest of this Mortgage will not be valid or enforced. Therefore, a court will enforce the rest of the provisions of this Mortgage even if a prows~on of this Mortgage may be found to be invalid or unenforceable. Merger. There shall be no merger of the interest or estate created by this Mortgage wm~ any other interest or estate in the Property at any time held by or for the benefit 8f Lender in any capacity, without the written consent of Le~{]er. Successors and Assigns. Subject to any limitations stated in this Modgage on tra.~sfer of Grantor's interest, this Mortgage shall be binding upon and inure to the benefit of the parties, their successors and assigns. If ownership of me Property becomes vested in a person other than Grantor, Lender, without notice to Grantor, may deal with Grantor's successors with reference to this Mortgage and the Indebtedness by way of forbearance or extension without releasing Grantor from the obligations of this Mortgage or liability under the Indebtedness. Time Is of the Essence. Time is of the essence in the performance of this Mortgage. Waiver of Homestead Exemption. Grantor hereby releases and waives all rights and aenefits of the homestead exemption laws of the State of Wyoming as to all Indebtedness secured by this Mortgage.. DEFINITIONS, The following words shall have the following meanings when used in this Mortgage: Borrower. The word "Borrower" means Brian Carter; Lorene Carter; and Wind River Management Trust dated June 22, 1998 and includes all _can No: 2114278 (Continued) '- 0 ~z 9 9 Page 5 co-signers and co-makers signing the Credit Agreement. Credit Agreement. The words "Credit Agreement" mean the credit agreement dated Docember 6, 2004, with credit limit of $15,000.00 from Borrower to Lender, together with all renewals of, extensions of, rr~difications of, r~fi~ancings of, consolidations of, and substitutions for the promissory note or agreement. NOTICE TO GRANTOR: THE CREDIT AGREEMENT CONTAINS A VARIABLE INTEREST RATE. Environmental Laws. The words "Environmental Laws" mean any and all state, feder~d [tied local statutes, regulations and ordinances relating to the protection of human health or the environment, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable state or federal laws, rules, or rugulations adopted pursuant thereto. Event of Default. The words "Event of Default" mean any of the events of default set 'cfm in th~s Mortgage in the events of default section of this Mortgage. Existing Indebtedness. The words "Existing Indebtedness" mean the indebtedness described in the Existing Liens provision of this Mortgage. Grantor, The word "Grantor" means Wind River Management Trust dated June 22, 1998. Hazardous Substances, The words "Hazardous Substances" mean materials that. Uecause of their quantity, concentration or physical, chemical or infectious characteristics may cause or pose a present or potential hazard to huma~ ~e~lti~ or the environment when improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handled. The words "Hazardous Substances" are used in their very broadest sense and include without limitation any and all hazardous or toxic substances materials or waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances" also includes, without limitation petroleum and petroleum ~)y-products or any fraction t~nereof and asbestos. Improvements. The word "Improvements" means all existing and future improveme~ts, bu~ld~ngs, structures, mobile homes affixed on the Real Property, facilities, additions, replacements and other construction on the Real Property Indebtedness, The word "Indebtedness" means all principal, interest, and other ,~moums, costs and expenses payable under the Credit Agreement or Related Documents, together with all renewals of, extensions of, modific~ztio~s of, consolidations of and substitutions for the Credit Agreement or Related Documents and any amounts expended or advanced by Leneer to d~scharge Grantor's obligations or expenses incurred by Lender to enforce Grantor's obligations under this Mortgage, together with interest on such amounts as provided in this Mortgage. Lender, The word "Lender" means The Jackson State Bank & Trust, 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 Mortgage between Grantor and Lender. Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter owned by Grantor, and now or hereafter attached or affixed to the Real Property; together with a~, accessions, parts, and additions to, all replacements of, and all substitutions for, any of such property; and together with all proceeds (including w thout limitation all insurance proceeds and refunds of premiumsl 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 and rights as further described in this Mortgage. Related Documents, The words "Related Documents" mean all' promissory ~otes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security ~eeas, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with me Indebtedness. Rents. The word "Rents" means all present and future rents, revenues, income: ~ssues, royalties, profits, and other benefits derived from the Property. GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND GRANTOR AGREES TO ITS TERMS. GRANTOR: WIND RIVER MANAGEMENT TRUST DATED JUNE 22, 1998 Sherry A. L],~i, Trffstee of Wind River Management True/dated June 22, 1998 TRUST ACKNOWLEDGMENT this Mortgage and in f~ed..t,t~e Mortga.ge on behalf of the trust. NotaryPub,iclnandfort~e aS~/teof ) SS COUNTY OF ) On this ~)"~ day of '-~ ~ ¢..JL. v~.[o--~ , 20 ~.)L_}. before me, the undersigned Notary Public, personally appeared Sherry A. Luthi, Trustee of Wind River Management Trust dated June 22, 1998, and known to me to be an authorized trustee or agent of the trust that executed the Mortgage and acknowledged the Mortgage to be the free a~ voluntary act and deed of the trust, by authority set forth in the trust documents or, by authority of statute, for the uses and purposes therein mentioned and o~ oath stated that he or she is authorized to execute commission expires r,'- /.~' .... ~C.F~T8 L. uu,,[y el ~r~'~,~ ~taTe or ~ P~o ~. v.,. ~ ~.~ c~. ~,.~ ,~ sa.~. ~. ~ ~. ~ ~¢~, ~ ...... Teton Wyoming ' F-X~BIT A' Guarantee No. 12 - 10048 ROG The land referred to in this guarantee is situated in the Stare of Wyoming, County of Lincoln, and is described as follows: A portion of the properties referred ko in the Deeds recorded in Book 217PR on page 284 and in Sock 418PR on page 475 with the office of the Clerk of Lincoln County, Wyoming, within Lot 3 of Section 28, T35N RllgW of the gth P.M. Lincoln County, Wyoming. BEGINNING at a Cotton Gin Spike at a point in the West line of said Lot 3, said point being s 0°46,26" W, along said West line, 976.80 feet from the Referenced Cotton Gin Spike marking the Lloyd B. Baker, 2001 location for the Northwest Corner of said Lot 3; thence S 89o13,34,, E, perpendicular 50 said West line, 396.00 feet; thence S 0*46'26" W, parallel with said west line, 118.86 feet; thence N 89013,34'' W, perpendic~llar to said West line, 396.00 feet to a point in said West line; thence N 0046'26'' E, along said Was¢ line, 118.86 fee~ to the PoinL of Beginning.