HomeMy WebLinkAbout911825 RECEIVED 9/14/2005 at 10:37 AM
RECEIVING # 911825
BOOK: 597 PAGE: 671
JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER, WY
MORTGAGE
THIS MORTGAGE is made the ~"/'~--~day of September, 2005. BRIAN D.
TALLERICO and KAREN L. TALLERICO, husband and wife, hereinafter referred to as
"Mortgagor", hereby mortgage to JAMES PATRICK O'BANNON, TRUSTEE of the Trust of
James Patrick O'Bannon dated September 28, 2000, hereinafter referred to as "Mortgagee",
certain real property: located in Lincoln County, Wyoming, more specifically described below,
upon the terms and conditions set forth below.
Mortgagor, for and in consideration of the sum of THREE HUNDRED THOUSAND
DOLLARS ($300,000.00) lawful money of the United States and other valuable consideration,
loaned to Mortgagor by Mortgagee, evidenced by a Promissory Note of even date herewith, the
receipt of which is hereby confessed and acknowledged, does hereby mortgage to Mortgagee
forever, the following described real property situate in the County of Lincoln, State of
Wyoming:
See "DESCRIPTION FOR TRUST OF JAMES PATRICK O'BANNON<
DATED 28 SEPTEMBER 2000 / PARCEL A - REVISED (3)", attached hereto and
incorporated herein by reference.
Together with all buildings and improvements thereon, or which may hereafter be placed
thereon; all fixtures now or hereafter attached to said premises; all water and water rights, ditches
and ditch rights, reservoirs and reservoir rights, and irrigation and drainage rights; and all
easements, appurtenances and incidents now or hereafter belonging or appertaining there to;
subject, however, to all covenants, conditions, easements, and right-of-way, and to mineral,
mining and other exceptions, reservations and conditions of record.
MORTGAGE
TALLERICO / O'BANNON, TRUSTEE
PAGE 1 OF 9
00672
Mortgagor covenants that at the signing and delivery of the Mortgage, said Mortgagor is
lawfully possessed of said personal property; is lawfully seized in fee simple of said. property, or
has such other estate as is stated herein; has good and lawful right to mortgage, sell and convey
all of said property; and warrants and will defend the tide to all of said property against all lawful
claims and demands, and that the same is free from all encumbrances.
However, this Mortgage is subject to the express condition that if Mortgagor pays, or
causes to be paid, to Mortgagee the sum of Three Hundred Thousand Dollars ($300,000.00),
together with interest at the rate of six percent (6%) per annum, until paid, according to the
conditions of the Promissory Note of even date, which Promissory Note was executed and
delivered by Mortgagor to Mortgagee, which sum or sums of money Mortgagor hereby
covenants to pay, and until such payment, performs all of the covenants and agreements herein to
be performed by Mortgagor, then this Mortgage and said note shall cease and be null and void.
Mortgagor further covenants and agrees as follows:
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. Prepayments. Mortgagor shall have the privilege of paying any principal sum or
sums plus accrued interest, in addition to the payments herein required, at any time without
premium or penalty of any kind, and it is understood and agreed that any such prepayment shall
be credited first to interest and the balance to principal in the inverse order of when due.
3. Transfer of the Property_ / Due on Sale. 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 encumbrance subordinate to this Mortgage or
MORTGAGE
TALLERICO / O'BANNON, TRUSTEE
PAGE 2 OF 9
"00673
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 the sums secured by this Mortgage to be immediately
due and payable. Any delay or failure on the part of Mortgagee to demand payment shall not
prejudice Mortgagee's right there to. Mortgagee shall have waived such option to accelerate if,
prior to the sale or transfer, Mortgagee at Mortgagee's sole discretion, enters into a written
agreement with the person whom the property is to be sold or transferred expressly consenting to
such assumption and setting forth any new terms or conditions of this Mortgage as may be
requested by Mortgagee in exchange for Mortgagee agreeing to an assumption of the this
Mortgage.
4. Taxes and Assessments. Mortgagor shall pay all taxes and assessments levied or
assessed against said property.
5. Maintenance of Property. Mortgagor shall not commit or permit waste, nor be
negligent in the care of said 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 said
property which may impair the security of Mortgagee hereunder. Mortgagor shall not cause or
permit the presence of any hazardous substances, which shall include any substances so declared
under Federal or State law, on said property. Mortgagor shall not permit said property, or any
part hereof, to be levied upon or attached in any legal or equitable proceeding, and shall not,
except with the consent in writing of Mortgagee, or as is otherwise provided and permitted in
this Mortgage, re~nove or attempt to remove said improvements or personal property, or any part
hereof, from the premises on which the same are situated.
6. Insurance. As collateral and further security for the payment of the indebtedness
hereby secured, Mortgagor shall keep the improvements now existing or hereinafter erected on
MORTGAGE
TALLERICO / O'BANNON, TRUSTEE
PAGE 3 OF 9
said premises insured against loss by fire, with extended coverage provisions, to the full
insurable value thereof for the term of this Mortgage, and will pay when due all premiums on
such insurance. All insurance shall be carried in responsible insurance companies licensed in
Wyoming and the policies and renewals thereof shall have attached thereto by rider or otherwise
loss payable clauses in favor of Mortgagee. A copy of said policy or any renewal documents
pertaining thereto shall be supplied to Mortgagee within 30 (thirty) days after the date of
execution of this Mortgage and thereafter within 10 (ten) days of any renewal of or amendment
to such policy. The insurance proceeds, or any part thereof, may, at the option of Mortgagor, be
applied either to the reduction of the indebtedness hereby secured or used in reconstruction. In
the event of foreclosure of this Mortgage or other transfer of title to the said premises in
extinguishments of the indebtedness secured hereby, all right, title and interest of Mortgagor in
and to any insurance policies then in force shall pass to the purchaser or grantee.
7. Mortgagee Authorized to Make Payments. If Mortgagor defaults in the payment
of the taxes, assessments or other lawful charges, including any construction loan payments or
fails to keep the improvements on said premises insured as herein provided, Mortgagee may,
without notice or demand, pay the same, and if Mortgagor fails to keep said property in good
repair, Mortgagee may make such repairs as may be necessary to protect the property, all at the
expense of Mortgagor. Mortgagor covenants and agrees that all such sums of money so
expended, together with all costs of enforcement or foreclosure, and a reasonable attorney fee,
shall be added to the debt hereby secured, and agrees to repay the same and all expenses so
incurred by Mortgagee, with interest thereon from the date of payment at the same rate as
provided in the note hereby secured, until repaid, and the same shall be a lien on all of said
property and be secured by this Mortgage.
MORTGAGE
TALLERICO / O'BANNON, TRUSTEE
PAGE 4 OF 9
Default. If Mortgagor defaults in the payment of the indebtedness hereby
secured, for a period of 3 0 (thirty) days after written notice, or if Mortgagor removes or attempts
to remove any of said improvements or personal property contrary to the provisions of this
Mortgage, 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, shall, at the option of Mortgagee, become immediately
due and payable, anything herein or in said note to the contrary notwithstanding, and failure to
exercise the same in a default shall not preclude such exercise in the event of any subsequent
default. 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 purchases or purchasers at any foreclosure sale a proper deed of conveyance of the
property so sold. Mortgagor hereby grants 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 fight or remedy under this Mortgage or afforded by law or equity and
may be exercised concurrently, independently or successively. Mortgagor agrees to pay all costs
of enforcement or foreclosure, including a reasonable attorney fee. The failure of 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 fight 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 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
MORTGAGE
TALLERICO / O'BANNON, TRUSTEE
PAGE 5 OF 9
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 Mortgagor.
9. 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,
MOrtgagor executing the note or notes for which this Mortgage is security shall be personally
bound to pay the unpaid balance, and Mortgagee shall be entitled to a deficiency judgment.
10. Assignment of Rents. If the right of foreclosure accrues as a result of any default
hereunder, 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 Mortgagee on request. On
refusal, Mortgagee may enforce the delivery of such possession, rents, issues and profits by any
appropriate suit, action or proceeding. Mortgagee shall be entitled to a Receiver for said
property and all rents, issues and profit 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 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 expenses. 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 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.
MORTGAGE
TALLERICO / O'BANNON, TRUSTEE
PAGE 6 OF 9
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.
12. 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
Mortgagor. In the event of a partial taking of the property, unless Mortgagor and Mortgagee
otherwise agree in writing, there shall be applied to the sums secured by this Mortgage such
proportions 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 condemner offers to make an award or settle a claim for damages, Mortgagor
fails to respond to Mortgagee within 30 (thirty) 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 the 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.
13. Statement. That Mortgagee, within ten (10) days upon a request in person or
within thirty (30) days upon request by mail, will furnish a written statement duly acknowledged
MORTGAGE
TALLERICO / O'BANNON, TRUSTEE
PAGE 7 OF 9
OO6?8
of the amount due on this Mortgage and whether any offsets or defenses exist against the
mortgage debt.
14. Notices. That 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
and shall be addressed as follows or at such other address as either party may from time
mailed
to time designate in writing:
Mortgagor:
Brian D. Tallerico & Karen L. Tallerico
16941 Seminole Road
Poulsbo, Washington 98370
Mortgagee:
James Patrick O'Bannon, Trustee
P.O. Box 3564
Alpine, Wyoming 83120.
15. Headings. The headings used in this Mortgage are for convenience only and are
not to be used in its construction.
16. 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 hereto. 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 term
"foreclosure" 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 said premises, or in any
other manner now or hereafter provided by Wyoming statutes, including the power to sell.
17. Release. The acceptance by Mortgagee of this Mortgage and the note or notes it
secures, 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 recordation, if any.
MORTGAGE
TALLERICO / O'BANNON, TRUSTEE
PAGE 8 OF 9
18.
and by virtue of the homestead exemption laws of the State of Wyoming.
19. Incorporation of Promissory_ Note. The Mortgage is made
r ,679
Waiver of Homestead. Mortgagor hereby relinquishes and waives all rights under
to secure a debt
evidenced by a Promissory Note signed concurrently herewith, and the terms of said Promissory
Note are hereby incorporated herein by reference as if stated herein in full.
20. Joint and Several Liability.. The obligations and liabilities of the Mortgagors are
joint and several.
IN WITNESS WHEREOF, the said Mortgagor has hereunto signed and sealed these
presents the day and year first above written.
B~AL~CO
KAREN L~A'~/LERICO
STATE OF ?/)~? )
)ss.
COUNTY OF ~~ )
ON THIS the ~ day of September, 2005, before me, a Notary Public, personally
appeared Brian D. Tallerico and Karen L. Tallerico, known to me to be the persons whose names
are subscribed to the within instrument, who acknowledged that they executed the same for the
purposes therein contained.
WITNESS my hand and official seal.
My Commission expires:
MORTGAGE
TALLERICO / O'BANNON, TRUSTEE
PAGE 9 OF 9
, 1 307 885 9809; Jun-15-05 11:13; Page 2/3
,. .:i', ',-, 00680
DESCRIPTION FOR
TRUST OF JAMES PATRICK O'BANNON, DATED 28 SEPTEMBER 2000
PARCEL A - REVISED (3)
To.wit: -.
That part ofth.e SW¼SE% of Section 12, T35N R1 lgW, Lincoln County~ Wyoming, being
part of those tracts of record in the Office of the Clerk ct' Lincoln Gounty in Book 453 of
Photostatic Records on page 319 and in Book 488 of Photostatic Records on page 521,
described as tbllows:
BEGINNING at a point, on the north Line of said SW¼SE¼, S89o.12,.12,,E, 81.84 feet
from the northwest corner of said SW½SE¼;
thence S89o-12'-12"E, 576.04 foet, along sa.id north line, 1o a point;
thence S00°-10'.53"W, 1290.81 feet, along a linc parallel with the east lh~e of said
SW¼SE¼, to a point on the south line of said SW¼SE¼;
thence N89°-25'.24,,W, 57...:.4;.~.9.feet' aleng a,~ii[ south lin~, to a point;
00' ' "
then¢~ N .-06-3.;3.. ]~, ~2.93.03 Feet, along a ][ne parallel with the west ]Jrle of said
SW~ASEV~, to the POINT OF BEGINNING;
ENCOMPASSING an area of 17.07 acres, more or less;
S UBFECT to a right of ingress and egress ov~ under and across a strip of land forty (40)
feet in width, being twenty (20) fset each side of ths following described eenterline:
BEGINNING at a position on the south line of said SW¼SE¼, S89o_25,.24-E,
101:84 feet, from the southwest comer of said SW¼SE¼;
thence N00°-06'.33,,E,
thence N34°-46'_26',E,
thence N57°-46'-55"E,
thence N34°-21 '-41"E,
thence N71 °-09'-3
thence N47°-42 '.41,,E,
thence N75°.08'.19"E,
(3) described above;
53,92 feet, to a spike;
90.16 feet, to a spike;
78.42 feet, to a spike;
98.34 feet, to a spike;
92.22 feet, to a spike;
161.59 feet, to a spike;
181.63 feet, to a spike on the east line of Parcel A - Revised
with the side lines of tho above described strip lengthening or shortening, if necessary,
to create a continuous and contiguous easement with a minimum width of forty (40)
feet;
TOGETHER with a right of ingress and egress and underground utilities over, under and
across the west forty (40) feet of the SW¼ of Section 12, T35N R119W; AND
TOGETHER with a right of ingress and egress and public utilities over, reader mid across
the north sixty (60) feet ofthe NW¼ of Section 13, T35N RI 19W; AND
DESCRIPTION FOR
TRUST OF JAMES PATRICK O'BANNON,
DATED 21t SEPTEMBER 2000
PARCEL A - REVISED (3)
PAGE TWO
00681
N~, 1670
N~. 37~11
LTD,
O
TOGETHER with a right of ingress and egress and public utilities over, under and across
thc north sixty (60) feet of the west one hundred (100) feet of thc N?aN~NE¼ of said
Section 13; AND
TOGETHER with a right of ingress and egress and public utilities over, under and across
the south sixty (60) feet &the west 81.84 fcct of the SW¼SBgl of said Section 12; .AND
TOGETHER with a right of ingress and egress for a non-motorized pedestrian and
equestrian easement and utilities over, under, and across a strip of land within said
SW¼SE¼, being five (5) feet each side of thc following described centerline:
BEGINNING at a spike at the terminus of Henry's Mountain Road on thc south line
of said SW¼SE¼, N89°-25'.24"W, 93.54 feet from thc southeast comer of said
SW¼SE¼;
thence N31"-25'-45',W, 237.02 feet, to a position;
thence N70°-10'-lY'W, 486.29 feet, to a position on the east line of Parcel A-Revised
(3) described above; AND
TOGETHER with a right of ingress and egress for a non-motorized pedestrian and
equestrian easement and utilities over, under, and across a strip of land ten (10) feet in
width, with the south line described as follows;
BEGINNING at said terminus;
thence S89°-25'-24"E, 93.54 feet, to thc southeast comer of said SW¼SE¼; AND
TOGETHER with a right of ingress and egress over and across the north ten (10) feet of
the cast 1392.00 feet of said NYzl',I½NE¼ for a non-motorized pedestrian and equestrian
easement;
each "comer" found as described in the Comer Record filed or to be filed in the Office of
the Clerk of Lincoln County;
each "intersection" and "point" marked by a 5/8" x 24" steel reinforcing rod with a 2"
aluminum cap inscribed, "SURVEYOR SCHERBEL LTD AFTON WY PLS 5368" or
"SURVEYOR SCHERBEL LTD BIG PINEY WY PLS 5368" with appropriate details;
each "spike", marked by a 3/8" x 12" steel spike referenced by two (2) 5/8" x 24" steel
reinforcing rods with 2" aluminum cap inscribed, "SURVEYOR SCHERBEL LTD
AFTON WY PLS 5368", with appropriate details;
each "position" is a calculated position with no monument found or set referenced by on
(1) or two (2) 5/8"x24" steel reinforcing rod(s) with a 2" aluminum cap inset/bed,
"SURVEYOR SCI-IERBEL LTD AFTON WY PLS 5368";
all in accordance with thc plat prepared to be filed in the Office of the Clerk of Lincoln
County titled, "PLAT OF BOUNDARY ADJUSTMENT FOR THE TRUST OF IAMES
PATRICK O'BANNON, DATED 28 SEPTEMBER 2000 OF PARCEL A-REVISED (2)
II AND P.P.,AR.,CBL B-REVISED (2) ~'I'~ THE SW¼SB¼ SECTION 12 T3SN P,.119W