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HomeMy WebLinkAbout908808006!9 RECKED 5/31/2005 at 3:21 PM I~CEIVING # 908808 B00~: 586 PAGE: 619 JEANNE WAGNER LINCOLMCOUNTY CLERK, KEMMt !RER, VVY SECOND MORTGAGE THIS MORTGAGE, made the __22.r..hday of tqay ,2005, by and between, Stephen R. Duerr, a married man dealing in his separate property hereinafter referred to as "Mortgagor" and Valerie Jayne Peterson, an unmarried woman dealing in her separate property hereinafter referred to as "Mortgagee." The Mortgagor, for and in consideration of credit provided by Mortgagee to Mortgagor in a contract for the sale of land owned by Mortgagee near Bedford, Lincoln County, Wyoming in the amount of $18,000 with interest accruing at 8% simple interest annually until paid, does hereby mortgage to the Mortgagee, the following described real property in the County of Teton, State of Wyoming, described on Exhibit A and by this reference specifically incorporated herein. Together with all buildings, structures and other improvements thereon, or which may hereafter be placed thereon; all water and water rights, ditches and ditch rights, reservoirs and reservoir rights, and irrigation and drainage rights; and all easements, appurtenances and incidents, if any, now or hereafter belonging or appertaining thereto; subject however, the language in the contract to buy and sell land dated March 17, 2005, describing a corrugated steel building to be retained and moved by Seller, and irrigation water rights reserved by seller; and to all covenants, conditions, easements, and rights-of- way, to mineral, mining and other exceptions, reservations and conditions of record. Mortgagee understands and ackaaowledges that this mortgage is a second mortgage subject and subordinate to a first mortgage to be filed at the time a commercial lending institution provides loan proceeds to finance in part the real estate sale by mortgagee to mortgagor. Mortgagor hereby relinquishes and waives all rights under and by virtue of the homestead exemption laws of the State of Wyoming. Mortgagor covenants that at the sigr~,ing and delivery of this Mortgage, Mortgagor is lawfully possessed of the property described herein; has good and lawful right to mortgage, sell and convey all of the property subject to the first mortgage; and warrants and will defend the title to the property against all lawful claims and demands, and that the same is free from all encumbrances, except the first mortgage and those encumbrances of record as of the date of execution of this Mortgage. This Mortgage is subject to the express condition that if the Mortgagor pays, or causes to be paid, to the Mortgagee the sum of $18,000.00, together with interest at the rate of 8% per annum simple interest, according to the terms and conditions of a Promissory Note of the same date, then this Mortgage and the Promissory Note shall cease and be null and void. Mortgagee promises to return the original Promissory Note to mortgagor and to execute and cause to be recorded a release of the second mortgage and other documents requested of Mortgagee by Mortgagor related to this relationship. Mortgagor and Mortgagee further covenant and agree as follow: 1. Payment. Mortgagor shall pay the indebtedness as herein provided, and the lien of this instrument shall remain in full force and effect during any postponement or extension of time of payment of any part'of the indebtedness secured hereby. 2. Transfer of the Property. If all or any part of the property or any interest herein is sold or transferred by any means by Mortgagor without Mortgagee's prior written consent, excluding the creation of a lien or encumbrances subordinate to this Mortgage or 0908 08 a transfer by devise, descent or by operation of law upon the death of a joint tenant, Mortgagee may, at Mortgagee's option, declare all sums secured by this Mortgage to be immediately due and payable. Any delay or failure on the part of the Mortgagee to demand payment shall not prejudice the Mortgagee's right thereto 3. Taxes and Assessments. Mortgagor shall pay all taxes and assessments levied or assessed against said property. 4. Maintenance of Property. Mortgagor shall not commit or permit waste, nor be negligent in the care of the property, and shall maintain the same in as good condition as at present, reasonable wear and tear excepted, and will do nothing on or in connection with the property which may impair the security of the Mortgagee. Mortgagor shall comply with all laws, ordinances, regulations, covenants, conditions and restrictions affecting the property, and not suffer or permit any act to be done in or upon the property in violation thereof. 5. Default, Disclosure/Acknowledgement. If the Mortgagor defaults in the payment of the indebtedness hereby secured, for a period of thirty (30) days after written notice, or in case of breach of any covenant or agreement herein contained, the whole of the then indebtedness secured hereby, both principal and interest, together with all other sums payable pursuant to the provisions hereof, subject to and conditioned upon the terms of the first mortgage, shall become immediately due and payable, at the option of the Mortgagee, anything herein or in said note to the contrary notwithstanding, and failure to. exercise said option shall not constitute a waiver of the right to exercise the same in the event of any subsequent default. The Mortgagee may enforce the provisions of or foreclose this Mortgage by any appropriate suit, action or proceeding at law or in equity, and cause to be executed and delivered to the purchaser or purchasers at any foreclosure sale a proper deed of conveyance of the property so sold. The Mortgagor hereby grants the Mortgagee the power to foreclose by advertisement and sale as provided by statute. All remedies provided in this Mortgage are distinct and cumulative to any other right or remedy under this Mortgage or afforded by law or equity and may be exercised concurrently, independently or successively. The Mortgagor agrees to pay all costs of enforcement or foreclosure, including a reasonable attorney fee. The failure of the Mortgagee to foreclose promptly upon a default shall not prejudice any right of said Mortgagee to foreclose thereafter during the continuance of such default or right to foreclose in case of further default or defaults. The net proceeds from such sale shall be applied to the payment of: first, the costs and expenses of the foreclosure and sale, including a reasonable attorney fee, and all moneys expended or advanced by the Mortgagee pursuant to the provisions of this Mortgage; second, all unpaid taxes, assessments, claims and liens on said property, which are superior to the lien hereof; third, the balance due Mortgagee on account of principal and interest on the indebtedness hereby secured; and the surplus, if any, shall be paid to the Mortgagor. The Mortgagor has the right of redemption pursuant to Wyoming law, however, notwithstanding anything in this document to the contrary, Mortgagor discloses and Mortgagee acknowledges that this mortgage is subject to and is intended to be subject and subordinate to the terms of a first mortgage is described herein. 6. Insufficiency of Foreclosure Proceeds. If the property described herein is sold under foreclosure and the proceeds are insufficient to pay the total indebtedness . hereby secured, the Mortgagor executing the note or notes for which this Mortgage is 00621 security shall be personally bound to pay the unpaid balance, and the Mortgagee shall be entitled to a deficiency judgment. 7. Assignment of Rents. If the right of foreclosure accrues as a result of any default hereunder, the Mortgagee shall at once become entitled to exclusive possession, use and enjoyment of all property aforesaid, and to all rents, issues and profits thereof, from the accruing of such right and during the pendency of foreclosure proceedings and the period of redemption, and such possession, rents, issues and profits shall be delivered immediately to the Mortgagee on request. On refusal, the delivery of such possession, rents, issues and profits may be enforced by the Mortgagee by any appropriate suit, action or proceeding. Mortgagee shall be entitled to a Receiver for said property and all rents, issues and profits thereof, after any such default, including the time covered by foreclosure proceedings and the period of redemption, and without regard to the solvency or insolvency of the Mortgagor, or the then owner of said property, and without regard to the value of said property, or the sufficiency thereof to discharge the Mortgage debt and foreclosure costs, fees and expense. Such Receiver may be appointed by any court of competent jurisdiction upon ex parte application, notice being hereby expressly waived, and the appointment of any such Receiver on any such application without notice is hereby consented to by the Mortgagor. All rents, issues and profits, income and revenue of said property shall be applied by such Receiver according to law and the orders and directions of the court. 8. Inspection. Mortgagee. may make or cause to be made reasonable entries upon and inspections of the property, provided that Mortgagee shall give Mortgagor notice prior to any such inspection specifying reasonable cause therefore related to Mortgagee's interest in the property. 9. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of the property, or part hereof, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to Moltgagee. In the event of a total taking of the property, the proceeds shall be applied to the sums secured by this mortgage with the excess, if any, paid to Mortgagor. In the event of a partial taking of the property, unless Mortgagor and Mortgagee otherwise agu'ee in writing, there shall be applied to the sums secured by this mortgage such proportion of the proceeds as is equal to that proportion which the amount of the sums secured by this mortgage immediately prior to the date of taking bears to the fair market value of the property immediately prior to the date of taking, with the balance of the proceeds paid to Mortgagor. If the property is abandoned by Mortgagor, or if, after notice by Mortgagee to Mortgagor that the condemnor offers to make an award or settle a claim for damages, Mortgagor fails to respond to Mortgagee within 30 days after the date such notice is mailed, Mortgagee is authorized to collect and apply the proceeds, at Mortgagee's option, either to restoration or repair of the property or to reduce the sums secured by this Mortgage. Unless Mortgagee and Mortgagor otherwise agree in writing, any such application of proceeds to principal shall not extend or postpone the due date of the installments referred to above or change the amount of such installments. 10. Statement. The Mortgagee within ten (I 0) days from a request in person or within twenty (20) days upon request by mail, will furnish a written statement duly acknowledged of the amount due on this mortgage and whether any offsets or defenses exist against the mortgage debt. 11. Notices. Notice and demand or request shall be in writing and may be served either in person or by certified mail, return receipt requested, notice shall be deemed given when mailed and shall be addressed as follows or at such other address as either party may from time to time designate in writing: Mortgagor: Stephen R. Duerr, PO Box 550, Jackson, WY. 83001 3 ~~Mortgagee: Va!erie Jayne Peterson, ~ xxrv p~r~ The Mo~gagor shall be given a copy of this Mortgage upon its execution or a~er the recording of this instrument. 12. Headings. The headings used in this mortgage are for convenience only and are not to be used in its construction. 13. Successors and Assigns Bound; Joint and Several Liability. The covenants and agreements herein contained shall bind and the rights hereunder shall inure to the respective heirs, successor and assigns of Mortgagor and Mortgagee. 14. Binding Effect and Construction. The covenants herein contained shall bind and the benefits and advantages shall inure to the respective heirs, devisees, legatees, executors, administrators, successors and assigns of the parties. Whenever used the singular number shall include the plural, the plural the singular, and the use of any gender shall include all genders. The term "note" includes all notes herein described if more than one. The terms "foreclosures" and "foreclose" as used herein, shall include the right of foreclosure by any suit, action or proceeding at law of in equity, or by advertisement and sale of the property or in any other manner now or hereafter provided by Wyoming statutes, including the power to sell. 15. Release. The acceptance of this mortgage and the note or notes it secures, by the Mortgagee shall be an acceptance of the terms and conditions contained therein. Upon payment of all sums secured by this mortgage, Mortgagee shall release this mortgage without charge to Mortgagor. Mortgagor shall pay all costs of recording the release. 16. Waiver of Homestead. Mortgagors hereby each waive all homestead exemption rights under the laws of the State of Wyoming. 17. Environmental Protection Requirements, Warranties and Indemnities. That Mortgagor shall not use, nor permit any tenant, occupant or any other party or entity to use, the Property, or any part thereof, for the purpose of generating, treating, producing, storing, handling, transferring, processing, transporting, disposing or otherwise releasing "hazardous substances," as hereinafter defined, either on, in, from or about the Property which: (a) create or cause a contamination either on the Property or elsewhere which is required by any governmental authority to be removed, remediated, or otherwise cleaned up under any applicable "Environmental Law," as defined below, (b) creates any form of liability, civil or criminal, direct or indirect, due to such contamination, or (c) is in contravention of any Environmental Law. IN YXqTNESS V~rHEREOF, the Mortgagor and Mortgagee have signed this document on the day and year first above written. Valerie Jayne Peterson (Mortgagee) ,- 00623 STATE OF WYOMING ) ) SS. COUNTY OF TETON ) /47~oV'-~ * On the~day of /~ , 2005 before me, ,a n0ta~'y'~public,~ personally appeared Stephen R. Duerr, who proved to me on fhe basis of satisfactory evidence to be the person who is named within this instrument and acknowledged to me that he executed the same. WITNESS my hand and official seal. My commission expires: ~d_~¢ ~? &~ STATE OF WYOMING ) ) SS. COUNTY OF TETON ) On the027 day of ~ ,2005 before me,./k./d~ ff__. ~')~ ,a notary public, personally app~red Valerie Jayne Peterson, who proved to me on the basis of satisfactory evidence to be the person who is named within this instrument and acknowledged to me that she executed the same. WITNESS my hand and official seal. Notary Public My commission expires: ~--)C~t" c~ ~-~~ Exhibit A The physical address for the property is north of 180 County Road #123, Lincoln County, Wyoming, comprised of approximately 2 acres, and legally described by metes and bounds description as follows: LincoLn County, Wyoming being more particularly described as follows: Beginning at' a point in the east line of said Section 32, said point being 661.86 feet South from the Northeast comer of said Section 32; thence South, along said East line, 246.14- feet; thence West 353.31 feet; thence North 247.02 feet to a point m the south 1/ne of the N1/zN1A of said NE 1¼; thence S 89°51'24" E, along last said South line, 353.31 feet to the point of beg-inning.