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MOR TGA GE
Jim M. Abt, a single man in his sole capacity, Mortgagor, hereby grants.
bargains, mortgages and warrants to Community Bank of 104 N. Nolan River Road,
Cleburne, Texas, Mortgagee, the real estate in Lincoln County, Wyoming described as:
Lot 22 of Shadow Dancer Estates Subdivision, Lincoln County, Wyoming as
described in the official plat thereof.
sometimes hereinafter referred to as the "Property,"
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together with (i) all and singular the buildings, additions, alterations, improvements, and
appurtenances thereunto belonging or in anywise appertaining, and all property of like kind
and character now or hereafter acquired, installed in, affixed to, constructed on, commingled
with or substituted for any of the above; (ii) the proceeds of any or all of the above; (iii) all
easements and rights-of-way now and at any time hereafter used in connection with any of
the Property, or as a means of ingress to or egress from said Property or for utilities to said
Property; (iv) all interests of Mortgagor in and to any streets, ways, alleys and/or strips of
, land adjoining said Property or any part thereof; and (v) all rights, estates, powers and
privileges appurtenant or incident to the foregoing.
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TO HAVE AND TO HOLD the same to the Mortgagee, and to Mortgagee's
successors and assigns forever.
THE MORTGAGOR HEREBY REPRESENTS, WARRANTS,
COVENANTS, AND AGREES WITHTHE MORTGAGEEAS FOLLOWS:
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Representations and Warranties
Indebtedness. This Mortgage is given to secure payment and the
Mortgagor's promise to pay to the Mortgagee One Hundred Thousand and 00/1 00 Dollars
($100,000) with interest, evidenced by a Promissory Note of even date herewith, and all
extensions and renewals thereof. Each such payment shall be applied first to the payment of
interest and any balance remaining after the payment of interest shall be applied to the
reduction of the unpaid principal balance.
Financial Matters. Mortgagor is solvent, is not bankrupt, and has no
outstanding liens, suits, garnishments, bankruptcies, or court actions which could render .
Mortgagor insolvent or bankrupt. All reports, statements and other data furnished by
Mortgagor to Mortgagee in connection with the loan evidenced by the Promissory Note
RECEIVED 2/23/2006 at 1 :57 PM
RECEIVING # 916196
BOOK: 612 PAGE: 878
JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER, wY
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0916196
000879
executed herewith are true and correct in all material respects and do not omit to state any
fact or circumstance necessary to make the statements contained therein not misleading. No
material adverse change has. occurred since the dates of such reports, statements and other
data in the financial condition of Mortgagor.
Title and Authority. Mortgagor is the lawful owner of good and marketable
title to the Property and has good right and authority to grant, bargain, mortgage and warrant
the same.
Enforceability. The Promissory Note, this Mortgage and all other related
instruments and documents constitute the legal, valid and binding obligations of Mortgagor
enforceable in accordance with their terms. The execution and delivery of, and perfonnance
under, the Promissory Note, this Mortgage and all other related instruments and documents
are within Mortgagor's powers.
No Default or Violation. The execution, delivery, and perfonnance of this
Mortgage, Promissory Note, and all other related instruments or documents do not
contravene, result in a breach of, or constitute a default under any mortgage, promissory
note, loan agreement or any other contract or agreement to which Mortgagor is a party or by
which Mortgagor or any of its properties may be bound or affected and do not violate or
contravene any law, order, decree, rule or regulation to which Mortgagor is subject.
Environmental Representations and Warranties. To the best knowledge of
Mortgagor after due and diligent inquiry and except as specifically disclosed to Mortgagee,
the Property is not in violation of or subject to any existing, pending, or to the best
knowledge of Mortgagor, threatened investigation or inquiry by any governmental authority
or to any remedial obligations relating to health, safety or the environment, such as the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 and the
Resource Conservation Act of 1976. Mortgagor has taken all steps necessary to determine
and has determined that no hazardous substances or solid wastes have been disposed of or
otherwise released on or to the Property. The use which Mortgagor makes and intends to
make of the Property will not result in the disposal or other release of any hazardous
substance or solid waste on or to the Property.
Waiver of Homestead. Mortgagor hereby waives his rights to claim that any
portion of the Property is subject to the Homestead Exemption Laws of the State of
Wyoming.
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Covenants
Taxes and Assessments. Mortgagor shall payor cause to be paid all taxes
and assessments which may be levied or assessed against the Property and shall comply with
all recordation and other laws affecting the security of this Mortgage at the expense of
Mortgagor.
Insurance. Mortgagor agrees to acquire and maintain (and to provide
Mortgagee with evidence of the acquisition and maintenance) property and casualty
insurance on the Property and its improvements in an amount not less than $100,000.
Mortgagor shall deliver a copy of the acquired policy of insurance to the Mortgagee.
Mortgagee shall be listed as an additional loss payee under the insurance policy. The policy
must obligate the insurer to give thirty (30) days' notice to the Mortgagee before canceling,
altering or amending the policy for any reason.
Liens and Encumbrances. Mortgagor will keep the Property nee and clear
of all other liens and encumbrances which may be or become superior to the lien created
hereby.
Waste. Mortgagor will not commit waste or permit waste on the Property.
Mortgagor agrees to keep and maintain the Property in good repair and agrees not to
demolish or remove any building from the Property without the written consent of the
Mortgagee.
Laws. Mortgagor agrees to comply promptly, at the expense of Mortgagor,
with all laws, statutes, ordinances and regulations affecting the Property in any manner
whatsoever.
Fees. Mortgagor agrees to pay all expenses and attorney's fees incurred by
the Mortgagee, its successors or assigns, for the protection of the lien of this Mortgage or for
the collection of any amount due on the Mortgage Note or for the preservation of the
Property.
Condemnation. Mortgagor will pay to or cause to be paid directly to the
Mortgagee, for application upon the indebtedness secured hereby, the full amount of any
award or compensation for the taking or damaging by condemnation proceedings under the
power of eminent domain of all or any part of the Property.
.Debts for Construction. Mortgagor will promptly pay all debts and liabilities
of any character, including all debts and liabilities, for material and equipment and all debts
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and charges for utilities servicing the Property incurred in the construction, maintenance,
operation and development of the Property.
Indemnification. Mortgagor agrees to indemnify and hold the Mortgagee
hannless from and against, and to reimburse the Mortgagee with respect to, any and all
claims, demands, losses, damages (including consequential damages), liabilities, causes of
action, judgments, penalties, costs and expenses (includingattomeys fees and court costs) of
any and every kind or character, known or unknown, fixed or contingent, imposed on,
asserted against or incurred by the Mortgagee at any time and from time to time by reason of,
in connection with or arising out of (a) the breach of any representation or warranty of
Mortgagor as set forth herein; (b) the failure of Mortgagor to perform any obligation herein
required to be performed by Mortgagor; (c) any violation of any environmental law; (d) the
removal of hazardous substances or solid wastes from the Property (or if removal is
prohibited by law, the taking of whatever action is required by law); (e) any act resulting
from or in connection with the ownership, construction, occupancy, operation, use and/or
maintenance of the Property, regardless of whether the act, omission, event or circumstance
constituted a violation of any environmental law at the time of its existence or occurrence,
and (f) any and all claims or proceedings (whether brought by private party or governmental
agency) for bodily injury, property damage, abatement or remediation, environmental
damage or impairment or any other injury or damage resulting from or relating to any
hazardo.us substance or solid waste located upon or migrating into, from or through the
Property (whether or not any or all of the foregoing was caused by Mortgagor or a prior
owner of the Property or any third party and whether or not the alleged liability is
attributable to the handling, storage, generation, transportation or disposal of such substance
or waste or the mere presence of such substance or waste on the Property).
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Remedies Upon Default
Default. The term "event of default" as used in this Mortgage shall mean the
occurrence of any of the following events:
(a) the failure of Mortgagor to deliver payment of any installment of
principal or interest due or any other amount required to be paid under the Mortgage
Note, or this Mortgage within ten (10) days after receipt by Mortgagor of written
notice and demand for payment; or
(b) the failure of Mortgagor timely and properly to observe,· keep or
perform any covenant, agreement, warranty or condition contained herein or in the
Mortgage Note if such failure continues for ten (10) days after receipt by Mortgagor
of written notice and demand for the performance of such covenant, agreement,
warranty or condition; or
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(c) any representation contained herein or in any other related document
or otherwise made by Mortgagor or any other person or entity to the Mortgagee in
connection with the loan evidenced by the Mortgage Note is false or misleading in
any material respect; or
(d) Mortgagor becomes insolvent, or makes a transfer in fraud of
creditors, or makes an assignment for the benefit of creditors, or admits in writing its
inability to pay its debts as they become due; or
(e) Mortgagor is generally not paying its debts as such debts become due;
or
(t) a receiver, trustee or custodian is appointed for, or takes possession
of, all or substantially all of the assets of Mortgagor or any of the Property, either in a
proceeding brought by Mortgagor or in a proceeding brought against Mortgagor and
such appointment is not discharged or such possession is not terminated within sixty
(60) days after the effective date thereof or Mortgagor consents to or acquiesces in
such appointment or possession; or
(g) Mortgagor files a petition for relief under the Federal Bankruptcy
Code or any other present or future federal or state insolvency, bankruptcy or similar
law (all of the foregoing hereinafter collectively called "applicable Bankruptcy Law")
or an involuntary petition for relief is filed against Mortgagor under any applicable
Bankruptcy Law and such petition is not dismissed within sixty (60) days after the
filing thereof, or an order for relief naming Mortgagor is entered under any
applicable Bankruptcy Law, or any composition, rearrangement, extension,
reorganization or other relief of debtors now or hereafter existing is requested or
consented to by Mortgagor; or
(h) the Property or any part thereof is taken on execution or other process
of law in any action against Mortgagor; or
(i) Mortgagor fails to pay within thirty (30) days any fmal money
judgment against Mortgagor; or
G) any of the events referred to in subheadings (e), (t), (g), (h), G) or (k)
shall occur with respect to any member of Mortgagor or any guarantor of the
payment of the secured indebtedness or any part thereof and shall not be remedied
within the time set forth in said subheadings; or
(k) Mortgagor abandons all or a portion of the Property; or
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(I) the holder of any lien or security interest on the Property (without
hereby implying the consent of the Mortgagee to the existence or creation of any
such lien or security interest) declares a default thereunder or institutes foreclosure or
other proceedings for the enforcement of its remedies thereunder; or
(m) so much of the Property is taken in condemnation, or sold in lieu of
condemnation, or the Property is so diminished in value due to any injury or damages
to the Property, that the remainder thereof cannot, in the judgment of the Mortgagee,
continue to be operated profitably for the purpose for which it was being used
immediately prior to such taking, sale or diminution; or
(n) Mortgagor dissolves, liquidates, merges or consolidates or any interest
in Mortgagor is sold, assigned, transferred, mortgaged, pledged, encumbered, or
otherwise disposed of, voluntarily or involuntarily, without the prior written consent
of the Mortgagee.
Mortgagee's Remedies. In case an event of default shall occur as described
in this Mortgage or in the Promissory Note, the Mortgagor hereby authorizes and empowers
the Mortgagee, and Mortgagee's successors and assigns to foreclose this Mortgage by
advertisement and sale as provided by the statutes of the State of Wyoming or to foreclose
this Mortgage by judicial proceedings and convey the same to the purchaser in accordance
with the statutes of the State of Wyoming, and out of the moneys arising from such sale to
retain all sums secured hereby with interest and all legal costs and charges of such
foreclosure and actual reasonable attorneys' fees incurred by Mortgagee (or such other
amount as shall be fixed by the Court in the event of judicial foreclosure or receivership),
which costs, charges and fees the Mortgagor agree to pay. In case of the foreclosure of this
Mortgage, the Mortgagor hereby authorizes and empowers the Mortgagee, Mortgagee's
successors and assigns, to effect insurance upon any buildings and fixtures for a period
covering the time for redemption for the sale of said Property under such foreclosure, and to
pay the premium therefor and the amount so paid shall be impressed as an additional lien
upon said Property and shall be secured by and be collectible as a part of this Mortgage and
bear interest at the rate specified in the Promissory Note which is identified as the unpaid
balance upon the purchase by Mortgagor of the Property secured hereby for Mortgagee, from
the date said amount is paid. In the event of a foreclosure, Mortgagor hereby authorizes and
empowers Mortgagee, Mortgagee's successors and assigns, to bring an action against any
person who claims an adverse estate or interest therein for the purpose of detennining such
adverse estate or interest, and to pay costs and expenses thereof together with actual
attorneys' fees which amount shall be impressed as an additional lien upon the Property and
shall be secured by and collectible as a part of this Mortgage. In case the proceeds from the
foreclosure sale are insufficient to pay the total indebtedness secured hereby, the Mortgagor
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091.61.96
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.agrees to be bound to pay the unpaid balance, and the Mortgagee will be entitled to .a
deficiency judgment.
Receiver. Upon commencement of any foreclosure, or at any time thereafter,
and prior to expiration of the time for redemption from any sale of said premises on
foreclosure, any court of competent jurisdiction, upon application of the Mortgagee, or the
purchaser at such sale, shall, upon compliance with all Wyoming laws governing
receiverships, appoint a receiver for said Property to take possession thereof, to collect rents,
issues and profits of said Property during the pendency of such foreclosure and until the time
to redeem the same from the foreclosure sale shall expire, and out of rents, issues, and
profits to keep the Property in good repair and condition and to pay all taxes, assessments,
and special assessments, and to redeem from sale for taxes, assessments, and special
assessments, and to pay insurance premiums necessary to keep the Property insured in
accordance with the provisions of this Mortgage and to pay the expense of the receivership,
and said receiver shall apply the net proceeds to the payment of the indebtedness secured
hereby, and such receiver shall have all the other usual powers of receivers in such cases and
be subject to all requirements imposed by law.
Acceleration. Upon the occurrence of a default, the Mortgagee shall have the
option of declaring all secured indebtedness in its entirety to be immediately due and
payable, and the liens and security interests evidenced hereby shall be subject to foreclosure
in any manner provided for herein or provided for by law as the Mortgagee may elect.
Proceeds of Sale. The proceeds of any sale shall be applied:
FIRST, to the payment of all necessary costs and expenses incident to such
foreclosure sale, including but not limited to all court costs and attorneys' fees incurred by
Mortgagor;
SECOND, to the payment in full of the balance of the Promissory Note
(including specifically without limitation tl1e principal, interest and attorneys' fees due and
unpaid on the Note and the amounts due and unpaid and owed to the Mortgagee under this
Mortgage) in such order as the Mortgagee may elect; and
THIRD, the remainder, if any, shall be paid to Mortgagor or to such other
party or parties legally entitled to such proceeds.
No Waiver. Failure to exercise any right, power or options herein granted to
the Mortgagees, howsoever often, shall not constitute a waiver thereof and shall not estop
the Mortgagee from exercising any such right, power or option at any time or upon any
subsequent default of the Mortgagor. All rights and remedies given or reserved to the
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091.61.96
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Mortgagee herein shall be cumulative and may be exercised contemporaneously, but the
exercise of one or more such rights or remedies shall not exclude or prevent the exercise of
Mortgagee's other rights or remedies.
IV.
Miscellaneous
Balance Due on Sale. If all or any part of the Property or an interest therein
is sold or transferred by Mortgagor without Mortgagee's prior written consent, excluding (a)
the creation of a lien or encumbrance subordinate to this Mortgage, or (b) a transfer by
devise or descent, Mortgagee may, at Mortgagee's option, declare all the sums secured by
this Mortgage to be immediately due and payable. If Mortgagee exercises such option to
accelerate, Mortgagee shall mail Mortgagor notice of acceleration in accordance with this
paragraph. Such notice shall provide a period of not less than ten (10) days from the date the
notice is mailed within which Mortgagor may pay the sums declared due. If Mortgagor fails
to pay such sums prior to the expiration of such period, Mortgagee may, without further
notice or demand on Mortgagor, consider that an event of default has occurred, and may
invoke any remedies permitted in this Mortgage or under Wyoming law.
Negation of Partnership. Nothing contained in the Mortgage Note, this
Mortgage, or any other agreement between Mortgagor and Mortgagee is intended to create
any partnership, joint venture or association between Mortgagor and Mortgagee, or in any
way make the Mortgagee a co-principal with Mortgagee with reference to the Property, and
any inferences to the contrary are hereby expressly negated.
Time of Essence. Time is of the essence of this Mortgage, the Promissory
Note and any and all other related instruments and documents.
Wyoming Law. This is a Wyoming Mortgage, made and executed in that
State, and is to be governed and construed according to its laws and shall continue to be so,
even though the Mortgagee or Mortgagor may at some time become domiciled elsewhere
within the United States or abroad.
Survival of Warranties, Covenants, and Promises. All warranties,
covenants, promises, undertakings, agreements, rights, powers, privileges, benefits,
obligations and remedies imposed upon or granted or reserved unto the parties to this
Mortgage shall survive the execution and delivery of this Mortgage, the Promissory Note,
and the related documents and shall respectively extend to and be binding upon successors
and assigns of said parties.
Entire Agreement. The Promissory Note, Mortgage, and other written
documents, signed by both Mortgagee and Mortgagor, constitute the entire understanding
and agreement between Mortgagor and Mortgagee with respect the transactions arising in
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connection with the indebtedness secured hereby and supersede all prior or oral
understandings and agreement between Mortgagor and Mortgagee with respect thereto.
Mortgagor hereby acknowledges that, except as incorporated in writing in such Promissory
Note, Mortgage, and written agreements, there are not, and were not, and no persons are or
were authorized by the Mortgagee to make, any representations, understandings, stipulations,
agreements or promises, oral or written, with respect to the transaction which is the subject
of this Mortgage.
Representation. The Mortgagor acknowledges and agrees that Luthi &
Voyles, LLC, represent the Mortgagee. Mortgagor further agrees that there is no
attorney/client relationship between Luthi & Voyles, LLC and the Mortgagor.
IN WITNES
Mortgage this ~ day of
the Mortgagor has signed and sealed this
, 2006.
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STATE OF ¡;¡'fAt;.
COUNTY OF l~~tv
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( L The foregoing Mortgage was acknowledged before me by Jim M. Abt this
~ day of y~ 2006. Witness my hand and official seal. My commission
expIres: ~-I - O~ .
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NOT PUBLIC
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