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HomeMy WebLinkAbout875503}1014693 RJCORDATION REQUESTED BY: RED HAWK CONSTRIkL-'TI~N, /NC. 658 SOUTH 650 WEST FARbtINGTON, UTAH 84025 . · RED HAWK CONSTRUCTION, :]:NC 658 SOUTH 650 WEST FAI~'4INGTON, UTAH 84025 SEND TAX NOTICES TO: 658 souTu 650 hook FARi 'I_~'~G%ON ~ UT,:4! ! - CONSTRUCTION MORTGAGE THIS MORTGAGE IS DATE[].. 8/17,/01 43j~ , between DAVID L. S(5{WAB/ a':'~ingle' man ~ ' whose address is aka DAVID SCHWAB (referred to below as "Grantor"); ~a; R~ HAWK CONSTRICTION, L'~C. . whose address is 658 SOUTH 650 ¥'~;ST, FAR~LINGTON, UTAH 84025 (referred to below as "Lender"). GRANT OF MORTGAGE. For valuable conelderatJon, Grantor mortgagee and conveys to Lender alt of Granlor's rlghl, lille, and Interesl tn and Io Ihe followlng described real properly, Iogether with all existing or subsequenlly erecled or affixed buildings. Improvemenls and lixlures; all easernenls, rights of way, and appurtenances; all water, water rights, water courses and ditch rights (including stock In ulililles wllh ditch or irrigation rights); and all olher royalties, and profits relallng to Ihe real property, including without Ilmitallon all minerals, o]1, gas. geolhermal and similar matters, located in LINCOLN County, State of WYOH[NG (the "Real Property"): February 11~ 1994 Plat No. 264-D~ Instrument No. 778568. The Real Property 'or its address is commonly known as 511 SNAKE RIVER DRIVE, .ALPINE, WY 83.128 G~'antor presently assigns to Lender all of Grantor's right, lille, and Interest In and to all leases of the property and all Rents from the Properly. In addition, Grantor grants to Lender a Uniform Commercial Code security Interest In the Personal Property and Rents. DEFINITIONS. Tho following words shall have Ihe following meanl.gs when used In Ihts Mortgage. Terms not otherwise defined In Ihls Mortgage shall have lhe meanings atlrlbuted Io such forms In Ihe Unllorm Commercial Code. All references to dollar amounts shall mean amounts in lawlul money of/he United Slates of America. . Grantor. The ~ord 'Grantor' means DAVID L. SCI~q,J3 The Grantor Is the mortgagor under this Mortgage. Guarantor. The word 'Guaranior' means ant InCludes without limitation, each and all of the guarantors, surelles, and accommodation parties In connection wllh Ihe Indebtedness. Improvements. The word "Improvements' means and Includes without limitation all existing and futura improvements, fixtures, buildings, structures, mobile homes affixed on Ihe Real Property facilities, additions and giber construction on the Real Property. Indebtedness. The word "Indebtedness' means all principal and Interest payable under the Nolo and any amounls expended or advanced by Lender to discharge obligations of Grantor or expenses Incurred by Lender Io enforce obligallons of Granlor under Ihts Mortgage, ' Iogather with interest on such amounts as provided In Ihls Mortgage. Lender. The word 'Lender' means ~ I-~AW~ CONS'I'!~TON~ /NC.. successors and assigns. The Lender is the mortgagee under thls Mortgage. , its 0 3 6 4 4 7 cO~wMz~, .... "-~--" ..... .~ ~ , MORTGAGE Page 2 Mortgage. The word "Mortgage' means Ihls Mortgage between Grantor and Lender, and Includes wllhout limitalion all assignments and aecudly interest provisions raising to the Personal Property and Rems. Nat.,. Th. wnrd 'n'me' means the promissory note or credit agreement dated 8/17/0] In Ihs ori¢llnal nrtncloal amn~mt ONE H[/~TDRED THIRTY THOUSAND AND NO/100 ......... ' .... (~130, 000. 00) from Grantor lo Lender, togalhar with all renewals gl, extensions of, mo~3illCatlons gl, refinancing o~, consolidalions oi, ancl SUDsIIlUIIOnS for promissory note or agreement. ProJ3erty. The word 'Properly" means collecllvaly the Real Property and Ihe Personal Properly. Personal Property. The words "Personal Properly" mear~ all equlpmenl, flxlures, and giber articles o~ personal property now or owned by Gt'antor, and now or hereafter allached or afllxad Io the Real Properly; tOgelher wilh all accessions, paris, and addilions lo, all replacements of, and all substitutions for, any of such properly; and Iogether wilh all proceeds (including wilhout limitation all insuranco proceeds and refunds of premiums) from any s~,la or other disposlllon of the Properly. Property. The work "Property# means collectively Ihe Real Property and the Personal Property. ~ ,' Real Property. The words 'Real Property" mean the Property, ]nteiasls and rights described above In Ihe 'Granl ot Mortgage" section. I:ielaled Documents. The words "Relaled Documents. mean and Include wllhout limllatlon all promissory notes, credit agreements, loan agreements, guaranties, security agreements, mortgages,, deeds gl trust, and all giber instrumenls, a§reemenls and documeots, whelher now or hereafter ex st ng, executed In connection with Ihe Indebtedness. Rents. The word "Rents" means all present a~3d fulure rents, revenues, Income, Issues, royallJas, profils, and other benelils derived I'rom Property. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, JS GIVEN TO SECURE (1) PAYMENT OF THE INDEBTEDNESS AND (2) PERFORMANCE OF ALL OBLIGATIONS OF GRANTOR UNDER THIS MORTGAGE AND THE RELATED DOCUMENTS. THIS MORTGAGE IS GIVEN AND ACCEPTED IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: PAYI~IENT AND PERFORMANCE, Except as otherwise provided in Ihls Mortgage, Grantor shall pay Io Lender all amounls secured by Ihis · Mortgage as they become due, and shall strictly perform all el Granlor's obligalions under Ihis Mortgage. POSSESSION AND MAINTENANCE OF THE PROPERTY. Gramor agrees that Grantor% possession and use of he Property shall be governed by Ihs following provisions: Possession and. Uae. Until In default, Grantor may remain in possession end conlrol of and operate and manage the Property and collect the Rents from tJ~e Property.~ Duty Ia Maintain. Granlor shall maintain the Property In tenantable'condition and promptly perform all repairs, replacements, and maintenance necessary to preserve Ils value. Hazardous Substances. The terms 'hazardous wasie,' 'hazardous subslance," 'disposal," 'release,' and "lhrealenad release,' as used in Ihie Mortgage, shall have Ihs same meanings as set forth Jn Ihs Comprehensive Environmental Response, Compensalion,. and Liabilily Acl 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA'), Ihs Superfund Amendments and Reaulhorizalion Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transporlallon Act, 49 U.S,C. Section 180L et seq., the Resource Conservation and Reqove~y Act, 49 U.S,C. Secllon 6901, et seq., or olher applicable 'state or Federal laws, rules, or regulations adoplad pursuant to any cf Ihs foregoing. The lares "hazardous wasle" and "hazardous substance" shall also include, without limilalion, pelroleum and pelroJeum by-producls or any fraction thereof and asbestos. Grantor represents and warranls Io Lender Ihat: (a) During Ihs period of Granlor's ownership el the Property, Ihere has been no use, generellon, manufacture, slorage, Ireatment, disposal, release or Ihreatened release of any hazardous' waste or substance by any person on, under, or about the Properly; (b) Granlor has no knowledge of, or reason lo believe Ihal Ihere has been, except as previously disclosed to and acknowledged by Lender In wrillng, ti) any u. se, generallon, manufaclure, slorage, Ireatmenl, disposal, release, or threatened release of any hazardous, waste or subslance by any prior owners or occupants of the Property of (ii) any aclual or lhreatened litigation or claims of any kind by ny person relating to such metiers; and (c) Except as previously disclosed to and acknowledged by Lender In writing, ti) neither Granlor nor any tenant, contraclor, agent or olher authorized user el'Ihs Properly shall use, generate, manulacture, store, treat, dispose of, or release any hazardous waste or subslance on, under, or aboul the Property lo make such inspections and teals as Lender may deem appropriate to determine compliance of Ihs Property wilh Ihis section ol Ihs Mortgage. Any Inspections or tests made by Lender shall be for Lender's purposes only and'shall not be construed to creeled any responsibility or liability on Ihs part of Lender to Granlor or to any other person. The represenlallons and warranties contained herein are based on Granlor's due diligence In Investigating the Property for hazardous waste. Grantor hereby (a) releases and waives any future clalms against Lender for indemnity or contribution In Ihs event Grantor becomes liable lot cleanup or olher cosls under any such laws, and (b) agrees to Indemnify and hold harmless Lender against any and all clalms, losses, liabilities, damages, penallies, and expenses which Lender may dlreclly or lndlreclly sustain or suffer resul(lng from a breach of this seclion of Ihs Mortgage or as a consequence o! any use, generation, manufacture, storage, disposal, release or threatened release occurring prior to Granlor's ownership or Interest in the Properfy, whether or not the same was or should have been known Io Granlor. The provisions of this section o~ Ihs Mortgage, including Ihs obligation to indemnify, shall survive the payment c! the Indebtedness and the salJsfacllon and reconveyance of Ihs lien of this Mortgage and shall not be affected by Lender's acquisition of any Interest In the Properfy, whether by foreclosure or otherwise. Nuleence~ Weals.. Grantor shall note cause, conduct or permit any nuisance nor commit, permit or suffer any slripplng of or wasle on or to the Property or any portion of the Property. Wilhout llmlllng the generality of Ihs foregoing, Granlor will not remove, or granl lo any olher party Ihs rlghl tO remove, any timber, minerals (Including oll and gas), soil, gravel or rock producls wilhoul the prior WrJllen consent of Lender. :~ Removal of I~provemente. Grantor shall not demolish or remove any Improvements from Ihs Real Property wJlhout Ihs prior written consent of Lender. As a condillon to Ihs removal of any improvements, Lender may require Grantor I° make arrangements salislactory to Lende~ replace such Improvements with Improvements of .at least equal value. Lender's Rlghl to Enter. Lender and Ils agents and representatives may enter upon Ihs Real Property al all reasonable times Io allend lo Lender's Interests and to Inspect tho Property. for purposes of Grantor*s compliance with the terms and condJltons of Ibis Morlgage. Cempllanoe With Governmental Reflulremente. Granlor shall promplly comply with all laws, ordinances, and regulallons, now or hereafler In effect, of all governmenlal aulhodliee applicable to the use or occupancy of Ihs Property. Granler may contesl in good faith any such law, ordinance, dr ~'egulatlon and wJlhhold compliance durtng any proceeding, Including approprlale appeals, so long as Granlor has notilied Lender Jn writing prior lo doing so and au long as, In Lender's sole opinion, Lender's Inleresls in Ihs Properly are nol jeopardized. Lender may require Granlor Io posl adequate security or a surely bond, reasonable salisfactory lo Lender, Io protecl Lender's interesl, Duty to P~etect. Granlor agrees nellher to abandon nor leave unallended Ihs property. Grantor shall do all olher acts, in addilJon 1o Ihose acls set forth above in Ihls eecllon, which from the characler and use of the Property are reasonably necessary Io prelect and preserve Properly. DUE ON~ SALE . CONSENT BY LENDER. Lender may, al lis opllon, declare Immediately due and payable all sums secured by this Mortgage upon the sale or transfer, without Ihs Lender*s prior writlen consenl, of all or any pm1 of Ihs Real Property, or any inlerest in Ihs Real Property. A ?al.e or Iranef?r" means Ihs conveyance of Real Property or any righl, lille or Interest mvo~unlary; whether by ouldghl ese, deed, Inslallmenl sale contract, conlracl for deed, Iheretn; whether legal or equitabe whelher volunla~y or leaseho d interesl w Ih a term grealer Ihan Ihree (3) years, lease-option contracl,', or by sale, asslgnmenl, or transfer ut any beneltclal interest In or Io any land Irusl holding lille to Ihs Real Properly, o~' by any other melhod of conveyance of Real Property Interest. If any Granlor Is a corporation or partnership, Iransfer also Includes any change in ownership of more than Iwenty.flve percent (25%) of Ihs.voting stock or partnership Interesls, as the case may be, of Grantor. However, Ihls oplk)n shall not be exercised by Lender If such exercise Is prohibited by federal law or by WYDN ! NJJLaw. ~ = ' -~:~ CONWMTGB Page 3 MORTGAGE 4 ~)I.) (Continued) TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property are a part of this Modgage. Payment. Grantor ;.shall pay when due (and in all evenls prior to delinquency) all taxes, payroll taxes, special taxes, assessmenls, water charges and sewer service charges levied ag~dnst or on account of the Property, and shall pay when due all claims for work done on or for sen/ices rendered or material furnished to the Properly. Grantor shall maintain the Properly free gl all liens having prlorily over or equal the Interest of Lender under this Mortgage, ex~,ept for the lien of taxes and assessmenls not due, and except as othenNise provided in tile following paragraph, Right To Contest, Grantor may withhold payment of any ~ax, assessment, or claim in connection with a good failh dispute., over the obligation to pay, so long as Lender's interest In the Property Is note jeopardized. If a lien arises or Is filed as a result of nonpayment, Grantor shall within fifteen (15) days after the:Il,eh arises or, if a lien is Iliad, within fifteen (15) days after Grantor has notice gl the liling, secure the discharge of the lien, or if requested by Lender, deposit with Lender cash or a sufficient corporate surety bond or olher' securily satisfactory to Lender In an amount sufficient tO discharge the lien plus anV coals or reasonable attorneys' fees or olher charges Ihat could accrue as a result of a foreclosure or sale under the lien. In any contest, Grantor shell defend [tsell and Lender and shall salisfy any adverse Judgement before enlorcement against'the Property. Grantor shall name Lender as an additional obliges under any surety bond furnished in the contest proceedings. Evidence of Payment. Grantor shall upon dot'and furnish to Lender satisfactory evidence of payment of the taxes or assessments and shall authorize the appropriate governmental official ~o deliver to Lender at any time a written statement of the taxes and assessments against the Property. Netlike of Construction. Grantor shall notify Lender at least fifteen (15} days before any work Is commenced, any services are furnished, or any materials are supplied to Ihs Property, if any mechanic's lien, materialmen's Iron, or other lien could be asserted on account cf the work, services, or materials and the cost exceeds $50000. grantor will upon request of Lender furnish lo Lender advance assurances satisfaclory to Lender that Grantor can and will pay the cost of such improvements. PROPERTY DAMAGE INSURANCE. The following.prey signs relating Io Insuring the Propedy are a pad cf this Modgage. .Maintenance of Insurance. Grantor shall procure and maintain policies of fire Insurance with slandard extended coverage endorsemanls on a replacement basis for the full Insurable value Covering all Improvements on the Real Property in an amount sufficient to avoid application gl any coinsurance clause, and with a standard mortgagee clause In favor of Lender. Policies shall be wdlten by such companies and in such form as may be reasonable 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 gl ten (10) days' prior written notice to Lender and not containing any' disclaimer of the Insurer's liability for failure to give such notice. Should the Real Property at any time become located in an area.designated by the Director gl the Federal Emergency Management Agency as a special Ilood hazard area, Grantor agrees to obtain and maintain Federal Flood Insurance, to the extent such insurance Is required and is or becomes available, for Ihs term gl the loan and Ior the full unpaid principal balance of the loan, or th~ maximum limit of coverage thai is available, whichever is less. Applloatlon of Pro{~eeda. Grantor shall promptly notify Lender of any loss or damage to the Property if the estlmaled cost of repair or replacement exceeds $500,00. Lender may make proof of loss if Grantor fails to do so within fifteen (150 days of the casualty. Whether or not Lender's security Is Impaired, Lender may, at ils election, apply the proceeds lo the reduction of the Indebtedness, payment of any lien affecting the Property, or the restoration and repair of the Property. If Lender elects to apply the proceeds to restoration and repair, Grantor shall repair or replace the damaged or destroyed Improvements In a manner satlslactory to Lender. Lender shall, upon satisfactory prool of such expenditure, pay or reimburse Grantor from the proceeds for the reasonable cost of repair or restoration if Grantor is not in default hereunder. Any proceeds which have not be~n disbursed within 180 days after their receipt and which Lender has not committed lo Ihs repair or restoration of the Property shall be used llrst to pay any amount owing to Lender under this Mortgage, then to prepay accrued interest, end 'the remafnder, If any, shall be applied to the principal balance of the Indebtedness. If Lender holds any proceeds after payment In full of the Indebtedness, such proceeds shall be paid to Grantor. Unexpired Insurance at Sate. Any unexpired Insurance shall Inure lo the benefit of,' and pass to, the purchaser of Ihs Propedy covered by this Mortgage at any trustee's sale or olher sale held under the provisions of this Morlgage, or al any foreclosure sale of such Properly. Grantor'a Report on Ineurenoe. Upon request of Lender, however not more than bnce a year, Grantor shall furnish to Lender a report on each existing policy of insurance showing: (a) the name of Ihs Insurer; (b) the risk insured: (c) the amount of the policy; (d) the propedy insured, the then current replacement value of such property, and the manner gl determining that value; and (e) the expiralion date gl policy. Grantor shall, upon request of Lender, have an independent appraiser sallsfactory to Lender determine the cash value replacement cost of the Property. EXPENDITURES BY LENDER. If Granlor fails lo comply with any provision of this Mortgage, or il any action or proceeding is commenced Ihat would materially affect Lender's Interests in the Property, Lender on Grantor's behalf may, but shall not be required to, take any action that Lender deems appropriate. Any amount that Lender expends In so doing will bear interest at the rate charged under the Note from the date incurred or paid by Lender to Ihs date of repayment by Grantor. All such expenses, at Lender's option, will (a) be payable on demand, (b) be added lo Ihs balance of the Note and be apportioned among and be payable with any Installment payments to become due during eilher (i) the term gl any applicable Insurance policy or (il) the remaining term of the Note, or (c) be treated as a balloon payment which will be due and payable at the Nole's maturity. This M0rlgage also will secure payment of these amounts. 'The rights provided for In this paragraph shall be in addition to any other rights cr any remedies which Lender may be entitled on account 'of Ihs defaull. Any such action by Lender shall not be construed 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 Properly are a part of this Mortgage. Title. Grantor warrants that: (a) Grantor holds good and marketable title of record to the Properly in fee simple, free and clear and all lines and encumbrances other than those set forth in the Real Property description or In any title Insurance policy, title roped, or final title .opinion issued In favor of, and accepted by, Lender in 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 warrants and will forever defend the lille Io Ihs Properly against the lawful claims gl all persons. In the event any action or proceeding Is commenced that questions Grantor's title or the Inlerest of Lender under this Mortgage, Grantor sha!t defend the action at Granlor's expense. Grantor may be the nnmlnal party in such proceeding, but Lender shall be entitled Io partlcipala In Ihs proceeding and to be represented In the proceeding by counsel gl Lender's own choice, and Grantor will deliver, or cause Io be delivered, Io Lender such Inslruments as Lender may request from lime Io lime Io permit such participation. Compliance with Laws. Grantor warrants that the Property and Granlor's use of Ihs Properly complies with all exisling applicable laws, ordinances, and regulations of governmental aulhodtles. CONDEMNATION. The following provlslons relating Io condemnallon of the Property are a part gl this Mortgage. Applloatlon of Net Prooeeda. 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 of the net proceeds of the award be applied the Indebtedness or the repair or restoration of Ihs Properly. The net proceeds of Ihs award shall man Ihs award after paymenl gl all reasonable costs° expenses, and attorney's fees: incurred by Lender in connection with. the condamnallon. Prooeedlnge. If any proceeding In condemnation is filed, Grantor shall promptly notify Lender in writing, and Granlor sha~l promptly lake such steps as may be necessary to defend the action and obtain the award. Grantor may be Ihs nominal party in such proceeding, but shall be entitled to participate in the proceeding and to be represented In the proceeding by counsel of ils own choice, and Granlor will deliver or. cause to be delivered to Lender such instruments as may be requested bV it Item time to 'time Io permit such parllcipalion. CONWMTGC · MORTGAGE Page 4 (Continued) IMPOSITION OF TAXES, FEES, AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provislons relating Io oovernmenlal taxes. fees. and charges are a pad of thio Mortgage: Current Taxes, Fees and Charges. Up'on request by Lender, Grantor shall execute such documents In addition to Ihis Mortgage and take whalever other action is requested by Lender Io perfect and continue Lender's lien on the Real Properly. grantor shall reimburse Lender for all laxes, as described below, Iogether With all expenses incurred in recording, perlecling or continuing Ihls Mortgage, including wilhout limitation all taxes, fees, documentary slamps, and other charges for recording or registering this Mortgage. Taxes. The following shall constitute taxes to which Ihls section applies: fa) a specific tax upon this type of Mortgage or upon all or any part of the Indebtedness secured by Ibis Mortgage: (b) a specific lax on Granlor which Granlor is authorized or required Io deduct from payments on the Indebtedness secured by this lype of Mortgage; (c) a tax on this type of Mortgage chargeable against the Lender or the holder of the Note; and (d) a specific tax On all or any portion of the Indebtedness or on payments or principal and interest made by Grantor. Subsequent Taxes. If any lax to which this .section applies Is enacted subsequent to the date of this Mortgage, this event shall have the same effect as an Event of Default (as defined below), and Lender may exercise any or all et Ils available remedies for an Event el Default as provided below unless grantor either fa) pays the tax before it becomes delinquent, or (b) contest the tm( as provided above in the Taxes and Liens section and deposits with Lender cash or a sufficient corporate surety bond or olher security satisfactory to Lender. SECURIT~ AGREEMENT; FINANCING STATEMENTS. The following provisions relating to Ihis Mortgage as a security agreement are a part el this Mortgage. Sa~.urlly Agreement. This Instrument shall consfllute a security agreement lo the extent any of Ihs Property conslllules flxlures or olher personal property, and Lender shall have all of the rights of a secured party under the Uniform Commercial Code as amended from time time. Security Interest. Upon request by Lender, Grantor shall execute financing statements and take whatever other acllon is requested by Lan.der lo perfect and continue Lender securily Inlerost in the Ranis and Personal Property. In addition Io recording Ihis Mortgage in the real property records, Lender may, al any time and without further authorization Imm Grantor, file executed counterparts, copies or .'reproductions el this Morlgage as a financing slatamenl. Granlor shall reimburse Lender for all expenses Incurred in pedecllng or continuing this security Interest. Upon default, Grantor shall assemble the Personal Property in a manner and at a place reasonable convenient lo Grantor and Lander and make it available to Lender within three (3) days after receipt el wrillen demand from Lender. AddreSses. The mailing addresses of Granlor (debtor) and Lender (secured party), from which Information concerning the security Interest granted by Ibis Mortgage may be obtained each as required by the Uniform Commercial Code), are as stated on the first page of this Mortgage. FURTHER ASSURA~NCES; A'ri'ORNEY-IN.FACT. The following provisions relating to further assurances and attorney-in-fact are a part of Ihts Mortgage. Further Assurances. At any time, and from tlm~ !o lime, upon request of Lender, grantor will make, execute and deliver, or will cause lo be made, executed or delivered, to Lender or Io Lender's designee, and when requested by Lender, cause to be filed, recoreded, rallied, or recoreded, as the case may be, at such limes and In such offices and places as Lender may deem appropriate, any and all such mortgages, deeds of IrusI, security deeds, security agreements, financing statements, continuation statements, instruments of lurelher assurance, certificates, and other documenls as may, in the sole opinion of Lneder, be necessary or desirable In order et effectuate. complete, padecl, continue, or preserve fa) the obligations fo Granlor under the NOlo, Ihis MOrtgage, and the Relalad Documents, and (b) Ihs liens and security Interests created by Ibis Mortgage as first and prior liens on the property, whether now owned or herealter acquired by Grantor. Unless prohibited by law or agreed to the contrary by lender In wdlJng, Granlor shall reimburse Lender for all costs and expenses Incurred in connection with the' matters referred to In Ihls paragraph. Attorttey-ln-Fer-t. If Granlor fails to do any of the things referred to in the preceding paragraph, Lender. may do so for and In the name of Grantor and at Granlor's expense. For such purposes, Grantor hereby Irrevocably appoints Lender as Granlor's allorney-in-facl lot Ihs purpose of making, executing, delivering, filing, recording, and doing all olher things as may be necessary or desirable, In Lender's sole opinion, to accomplish the matters, referred Io In the preceding paragraph, FULL PERFORMANCE. If Grantor pays all Ihs Indebtedness when due, and ether'wise performs all the obligations imposed upon Grantor under this Mortgage, Lender shall execute end deliver to Grantor a suitable satisfaction of this Mortgage and suitable statements of termination el any financing statement on file evidencing Lender's security Interest In the Rents and the Personal Property. Grantor will pay, il permitted by applicable law, any reasonable termination fee as determined by Lender from time to lime. DEFAULT. Each of the following, at Ihs option of Lender, shall constllute an event of default ("Event of Default") under this Mortgage: Default on I. ndebtednesa. Failure of Grantor to make any payment when due on Ihs Indebtedness. Default on Other Payments. Failure of Gran!or within Ihs time required by Ihls Mortgage to make any paymenl for laxes or Insurance, or any other payment necessary to prevent filing of or to effect discharge of any lien. ComPliance DefeulL Failure to comply with any olher term, obligation, covenant or condition conlalned in this mortgage, Ihs Note or In any of the Related Documents. If such a failure Is curable and if Grantor has not been given a notice of a breach of the same provision of this Mortgage within the preceding twelve (12) months, It may be cured (and no Evsnl of Default will have occurred) if Granlor, after Lender sends wrltlen notice demanding cure of such failure: fa) cures the failure wilhin (15) days; or (b) if Ihs cure requires more Ihan filteen (15) days, immediately Initiates steps sufficient to cure the failure and Ihereafter conlinues 'and compleles all reasonable and necessary slops sufficient Io produce compliance as soon as reasonably practical. BresGhes. Any ·Warranty, representation or slalemenl made or furnished to Lender by or on behalf of Grantor under Ihls Mortgage, Ihs Note or the Relaled Documents Is, or at the time made or furnished was, false in any material respecl. Insolvency. The Insolvency of Grantor, appointment of a receiver for any part of Grantor's property, any assignment for the benefit of creditors, Ihs commencement of commencement of any proceeding under any bankruplcy or insolvency laws by or against Granlor, or the dissolution or termination of Granlor's existence as a going business (if Grantor Is a business). Except to the extend prohibited by federal law or W YOI4 ! N~ la,v, the death of Grantor (ff Grantor Is an individual) also shall constitute an Evenl of Defaull under Ibis Mortgage. Foreclosure, Forfeiture, eta. Commencement of foreclosure or forfeiture proceedings, whether by Judicial proceeding, self-help, repossession or any giber method, by any creditor of Granlor or by any govemmenlal agency against any of Ihs Property. however, this subsection shall not apply In the event of a good faith dispute by Granlor as to the validity or reasonableness of the claim which is the basis of the foreclosure or forfeiture proceeding, provided thai Grantor gives Lender written notice of such claim and furnishes reserves or a surety bond for the claim satlefaclory lo Lender. Breach of Other Agreement. Any breach by 'G~anlor under Ihs terms of any other agreement between Grantor and Lender Ihat is remedied within any grace period provided therein, Including withoul limitation any agreement concerning any Indebtedness or olher obligation of Grantor Io Lender, whelher existing now or later. Events Affecting Quarentor. Any of Ihs preceding evenls occurs with respect 10 any GuarantOr of any of Ihs indebtedness or such Guarantor dies or becomes Incompetent or any Guarantor revokes any guaranty of Ihs Indeblednass. Lender, at Ils option, may, but shall not be required lo, permit the Guarantor's estate lo assume unconditionally the obligations arising under Ihs guaranty in a manner satisfactory lo Lender, and, In doing so, cure the Event of Default. IneeGurlty. Lender In good faith deems Itself Insecure. (~ ~:~,~ ,-~"~'-~ '~ MORTGAGE Page § ~":" ~ ~'~' ~'~' ~ (Continued) ,~ 9 '? RIGHTS AND REMEDIES ON DEFAULT. Upon ~he occurrence of any Event of Default and al any time Ihereafter but subject to any limitation in the Note or any limitation In this Mortgage, Lender, at ils option, may exercise any one or more of the following rights and ~'emedies, in addition to any olher rights or remedies provided by law: Accelerate Indebtedness. Lender shall have the right et Is option without notice to Grantor Io declare the entire Indebtedness Immediately due' and payable~ Including any prepayment p~dalty which Grantor would be required to pay. UCC Remedies. With respecl to all or any part of Ihs Personal Property, Lender shall have all Ihs rights and remedies of a secured party under the Uniform Commercial Code. Colleict Rents. Lender shall have the right, wllhout notice to Grantor, to take possession of Ihs Property, including during thb pendency of foreclosure, whether Judicial or non-Judicial, and collect Ihs Rents, Including amounts past due and unpaid, and apply the riel proceeds, ever and above Lender's coals, against Ihs Indebtedness. In furtherance of Ihls right, Lender may require any lenant or olher user o~ the Property to make payments of rent or use fees directly to Lender. If the Rents are collected by Lender, Ihen Grantor Irrevocably deslgnales Lender as Grantor's attorney-In-fact to endorse Instruments received In payment Ihereof in the name of Grantor and Io 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 tot which the paymenls 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 Ihrough a receiver. Appoint Receiver. Lender shall have Ihs right ~o have a receiver appointed Io take posslsslon gl all or any part of the Property, wilh the power to prelect and preserve the preserve the Property,. Io operate the Property preceding foreclosure or sale, and to coIlect the Rents Item leh Property and apply the proceeds, over and above Ihs cost of the receivership, agalnsl Ihs Indebledness. The receiver may serve without bond If permllted by law. Lender's righll to the apPointment of a receiver shall'exist whether or not Ihs apparen~ value to the Property exceeds Ihs Indebtedness by a subslantlal amounL. Employment by Lender shall not disqualih/ a person from serving as a receiver. Judliclal Foreicloaure. Lender may obtain a Judicial decree foreclosing Grantor's Interesl In all or any part of the Property. Nonjudicial Sale. Lender may foreclose Granlor's Inlerest In ail or In any part of Ihs Property by nonjudicial sale, and specifically by 'power of sale' or "advertisement and sale' foreclosure as provided by statute. ,.Deficiency Judgement. If permllted by .applicable law, Lender may obtain a Judgemenl for any deficiency remaining In Ihs Indebtedness due Io Lender after application of all amounls received from the exerSclse gl the righls provided In Ihls secllon.. Tenanoy al Sufferance. If Granlor remains In possession fo the Property after Ihs Property is sold as provided above or Lender otherwise becomes entitled to possession of Ihs Property upon default of Granlor, Granite shall become a tenant at sulterance ol Lender or the purchaser of the Property and shall, at Lender's opllon, either (a) pay a reasonable renlal for Ihs use of the Property, or (b) vacate Ihs Property Immediately upon Ihs demand of Lender. Other Remedies. Lender shell have all other rights and remedles provided In this mortgae or the Note or available al law or in equity. Sale of the Property. To the' exlent permitted t~y applicable law, Grantor hereby waives any and all right to have the property marshalled. In exercising Ils rlghls and 'remedies, Lender Shall be fee to sell all or any part of the property togelher or separately, In one sale or by separate sales. Lender shall be entitled Io bid at any public sale on all or any portion gl the Property. Notlice of Sale. Lender shall give Granlor reasonable notice of Ihs lime and place of any public sale of the Personal Property or of Ihs time after which any private sale or other Intended dispostlon of the Personal Property Is lo be made. Reasonable notice shall mean notice given at least lan 910) days before the time of Ihs sale or disposition. Waiver: Election of Remedies. A waiver b~/ any party of a breach of a provision of this Mortgage shall not conslilule a waiver cf or prejudice the party's rights otherwise to demand slrict compliance with that provision or any olher provision. Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an elecllon to make expenditures or take acllon lo perform an obllgallon of Grantor under this Mortgage alter failure of Grantor to perform shall not affect Lender's right to declare a default and exercise Ils remedies under thle Mortgage.. Attorneys' Fees] Expenses. It Lender Inslilules any suit or acllon to enforce any of Ihs terms of this Mortgage, Lender shall be enlitled to .. recover such sum aa the court may adjudge reasonable as reasonable attorneys' fees, al trial and on any appeal. Whelher or not any court action is involved, all reasonable expenses Incurred by Lender Ihat in Lender's opinion are necessary at any time for the proteclion of its Interest or the enforcement of its rights shall become a part of the Indebtedness payable on demand and shall bear Inleresl from the date of expenditure until repeld at the Note rate. experises covered by this paragraph include, without limitation, however subject to any limits under ~ applicable law,' Le.nder's reasonable attorneys' fees and Lender;s legal expenses whelher or not Ihere is a lawsuil, Including reasonable · .~ attorneys' fees for bankruptcy proceedings (including efforts to modify or vacate any ' automatic, stay' br Injunction), appeals and any anticipated post-Judgement collection services, the cost of searching records, obtaining tills reports (Includ ng foreclosure reports), surveyors' reports, and appraisal lees, and lille Insurance, Io Ihs exlent permitled by applicable law. Grantor also will pay any court costs, In addition Io all olher sums provided by law, NOTICES TO GRANTOR AND OTHER PARTIES. Any notice under Ihls Mortgage, Including without limitation any nolice of default and any notice of sale to Grantor, shall be In writing and shall be eflective when actually delivered or, If mailed, shall be deemed elfeclJve when deposiled In the United States mail first class, reglslered mall, postage prepaid, directed to the addresses shown near the beginning of Ihls Mortgage. Any party may change Its address for notices under Ihla Mortgage by giving formal wrJlten notice lot he olher parties, specifying thai the purpose of Ihs nollce Is to change Ihs party's address. 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 Ihs beginning of this Mortgage. For notice purposes, Grantor agrees Io keep Lender Informed at all times of Grantor's current address. MISCELLANEOUS PROVISIONS. The following mlscell.aneous provisions are a part of this Mortgage: .. Amendments. This Mortgage, together with any R~lated Documents, conslltules the entire-understanding and agreement of the pottles as to the matters set forth In this Mortgage. No alteration of or amendment to this Mortgage shall be effective unless given In writing and signed by the party or parties sought to be charged or bound, by the alleratlon or amendment. Annual Reports. If tho Property Is used for purposes other than Granlor's residence, Grantor shall furnish lo Lender, upon requesl, a certified statement of net opera~.lng Income received from the Property during Grantor's previous fiscal year In such form and detail as Lender shall require. 'Not operating income' shall mean all cash recelpls for the P~operty less all cash expenditures made in connection with the operation df' Ihs Property. Applloabla Law. This Modgage has been delivered to Lender and accepted by Lender in the S~ate of WYOM[NG This Mortgage ahal! be governed by and oonstrued In accordance with the laws of Ihs State of Wyoming. Caption Headlnga~ Capllon headings In this Mortgage are for convonlence purposes only and are not to be used Io Interpret of define the provisions of this Mortgage. Merger. There shall be no merger of the Interest or eslale created by Ihls Mortgage with any other Interest or estate In the Property at any IIm~. held by or for Ihs benefit of Lender In any capaclly, wllhout Ihs written consenl of Lender. Multiple Parties. All obligations of Grantor under this Mortgage shall be jolnl and several, and all references to Granlor shall mean each and every Grantor. This means lhat each of Ihs persons signing below is responsible for all obligations in Ibis Mortgage. CONWMTGE <::'.' ~'~,~.~.~.: MORTGAGE Page 6 (Continued) Beverablllty. If a 0curt of ~ornpetent Jurladlcllon finds any provision of this Mortgage Io be Invalid or unenforceable as any person or clrcumstance,..auch finding shall not render that provision Invalid or unenforceable as Io any other persons or circumstances. If feasible, any such o/fending provision shall be deemed lo be recalled to be within the limits of enforceablllly or validity; however, It the o/fending provision cannot be so modlfed, It shall be stricken and all other provisions of this Mortgage In all other respects shall remain valid and enforceable. Successors end Assigns. SubJecl Io Ihs limJlatlons stated In Ihls Mortgage on lransfer of Granlor's Inlerest, Ihts Mortgage shall be binding upon end Insure to benefit of the pallas, Ihelr successors and assigns. If ownership of Ihs Property becomes vesled in a person olher Ihan Grantor, Lender, wilhout notice to Granlor, may deal wilh Grantor% successors wllh reference Io Ibis Mortgage and Ihs Indebledness by way of forbearance or exlenslon wllhout releasing Grantor from Ihs obligations of this Mortgage or IlabllJly under Ihs Indebledness. Time la of the Eaeenae. Time Is of the essence In the performance of this Mortgage, Waiver of Homestead Exemption. Grantor hereby releases and walvea all rights and benefils of the homeslead exempllon laws of Ihs State of WYOH ] Nil as to all indebtedness secured by Ihls Mortgage. Waivers and Consents. Lender shall not be deemed to have waived any rights under this Mortgage (or.under the Related Documents) unless such waiver Is In writing and signed by, Lender, No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by any party of a provision of this Mortgage shall riel constitute a waiver of or prejudice the partv's right olherwlse to demand strict compliance with that provision or any other provision. No prior waiver by Lender, nor any course of deallng belween Lender and Granlor, shall conslllute a waiver of any of Lender's rights or any of Granlor's obllgalions as to any future Iransactlons. Whenever consenl by Lender Is required In Ihla Mortgage, Ihs granllng of such consent by Lender In any inslance shall not constitute conlJnuJng consenl fo subsequent Inslances where such consent is required. EACH GRANTOR ACKNOWLEDGES HAVING TERMS. · / READ ALL THE PROVISIONS OF THiS MORTGAGE, AND EACH GRANTOR AGREES TO ITS GRA ' ' DAVID L. SCH~B aka DAVID SCHWAB INDIVIDUAL ACKNOWLEDGMENT STATE OF WYOi~II4'G )ss COUNTY OF TETON On thl~ day before me, the U.nd.er. slgne~NolarV Public, personally anceared Dav±d T_. Schwab aka David Schwab to me known to be the IndtvlouaJi oescr~DeCl fn and who executed the Mortgage, and acknowledged that ~slgned the MOrtgage as free and voluntary act and deed, for the uses and purposes therein mentioned. ' Residing at Jackson Notary Public lit and for the State of _..~,_~o~n_ing_ My commission 'expires ~~ ,