HomeMy WebLinkAbout918531
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RECEIVED 5/18/2006 at 10:41 AM
RECEIVING# 918531
BOOK: 620 PAGE: 458
JEANNE WAGNER
.LINCOLN COUNTY CLERK. KEMMERER, WY .
CO"458
:EXHIBIT "n"
SECOND MORTGAGE
TillS MORTGAGE, made "the ¥ th day Df ~ ,2006, by.and between
DDnble L Ranch :#3, LLC, 11 WYDming limited liability compllD.Y, .hereinafter referred 10.
11S the "Mortgagor," llD.d DS LUMINA INVESTMENTS, liC hereinafter referred 10. 11S
"the "Mortgagee."
T.heMDrtgagor,foi'.andin consider11tibn Df the sum in.an mDunt nDt to. exceed
ONE MILLION, TWO HUNDRED - FIFTY THOUSAND DOLLARS .and 00/100
($1;250,000.00), lawful mDney Dfthe United States.and Dther v.aluable cDnsider11tiDn,
lDaned 10. "the MDrtgagor by 1Ììe MDrtgagee, the receipt Dfwhich is hereby cDnfessed llD.d
11cknDwledged, nDes .hereby mDrtgage 10. the MDrtgagee fDrever, the fDllDWing described
real property situated in "the CDunty Df LinCDln, State Df WYDming, nescribed Dn Exhibit
A llD.d by this reference specific1111y incorpor11ted herein.
/
T Dgether with.all buildings, structures .and Dther improvements thereDn, or w.hich
.may.hereafter be ]Jl11ced thereDn; and .all ellSements, 11ppurtenances, incidents .and
.:fixtures Df 11 permanent nature cnrrently Dn"the premises, in "their present cDnditiDn,
ordinary wear .ami 1ear excepted, nDW Dr here11fter belDnging or .appertaining there 10.;
subject, .hDwever, 1D.all cDvenants, cDnditiDns, ellSements, rights-of-w11y,.and 10. Dther
exceptiDns, reserv11tions .and cDnditiDns Df recDrd (the~'PrDperty"').
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TO RAVE AND TO HOLD "the PrDperty forever, "the MDrtgagor hereby
relinquishing .and waiving .all rights under .and by virtue of the hDmeste11d exemptiDn
laws Dfthe State DfWyoming.
MDrtgagor CDvenants that 11t the signing.and delivery Dfthis MDrtg11ge, said
MDrtgagDr is lawfully possessed.and lawfully seized in fee simple Dfthe Property, or has
such Dther estate 11S is stated herein; has gDDd.and J.awful right to' mortgage, sell.and
convey 1111 Df the Property; .and warr11nts llD.d will defend the ti1le 10. .all Df the PrDperty
.against .all lawful cl11ims .and demands, .and that the same is free frDm .all encumbr.ances,
except thDse encumbr.ances DfrecDrd liS Dfthe date Df executiDn Dfthis MDrtgage,
specific.ally including, but nDt limited to., that certain .First MDrtgage executed by
MDrtgagor1D Snsan:Ð11teman WDrtDn 11S Trustee of1he .MarlDW.and Susan B11teman
Trust dated December 20, 1996.
HDwever, this MDrtgage is subject to. the express conditiDn1hat iftheMDrtgagor
pays, Dr C11uses 10. be paid, 10. the Mortgagee the sum of an mnDunt not 10 exceed One
Minion Two Hundred Filly ThollSand ~, 00,,$1;250,000.00), 11CCording 10. the
cDnditiDns Df 11 PrDmissDry NDte dated ,2006, which PrDmissory NDte
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091J~531.
G00459
was executed and delivered by the Mortgagor to the Mortgagee, which sum or sums of
money the 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 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 6f the indebtedness secured hereby.
2. Transfer of the Property. If all or any part of the Property 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 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. Mortgagee shall have
waived such option to accelerate if, prior to the sale or transfer, Mortgagee, at its sole
discretion, enters into a written agreement with the person to 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 the Mortgagee in exchange
for the Mortgagee agreeing to an assumption of this Mortgage.
3. Taxes and Assessments. Mortgagor shall pay all taxes and assessments
levied or assessed against the 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 hereunder.
Mortgagor shall comply with all laws, ordinances, regulations, covenants, conditions
and restrictions affecting the Property, and shall not suffer or permit any act to be done
in or upon the Property in violation thereof.
5. 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 said premises insured against loss by earthquake, fire or other
similar casualty, 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 the Mortgagee. A copy of said policy or any renewal
documents pertaining thereto shall be supplied to the Mortgagee within thirty (30) days
Second Mortgage
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00460
after the date of execution of this mortgage and thereafter within ten (10) days of any
renewal of or amendment to such policy. The insurance proceeds, or any part thereof,
may, at the option of the 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 extinguishment of the
indebtedness secured hereby, all right, title and interest of the Mortgagor in and to any
insurance policies then in force shall pass to the purchaser or grantee.
6. 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, the Mortgagee may, without notice or demand, pay the same, and if the
Mortgagor fails to keep the Property in good repair, the Mortgagee may make such
repairs as may be necessary to protect the Property, all at the expense of the Mortgagor.
The 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 the 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 the Property and be secured by the Mortgage.
7. Default. 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, together with all other sums payable pursuant to the provisions hereof,
shall, at the option of the Mortgagee, become immediately due and payable, 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,
Second Mortgage
Page 3
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assessments, claims and liens on the Property, which are superior to the lien hereof;
third, the balance due Mortgagee on account of 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.
8. 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 the 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 en~it1ed to a Receiver for the
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 the 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 the Mortgagor. All rents,
issues and profits, income and revenue of the Property shall be applied by such Receiver
according to law and the orders and directions of the court.
9. Inspection. Mortgagee may make or cause to be made reasonable entries
upon and inspections of the Property, provided that, prior to any such inspection,
Mortgagee shall give Mortgagor notice, which specifies reasonable cause for such
inspection related to Mortgagee's interest in the Property.
10. 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 Mortgagee. 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 agree 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 to
settle a claim for damages, Mortgagor fails to respond to Mortgagee within thirty (30)
days after the date such notice is mailed, Mortgagee is authorized to collect and apply
Second Mortgage
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091.8S31.
C~^"'462
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.
11. Statement. That the Mortgagee, within ten (10) days upon request in
person or within thirty (30) days upon reqµest by mail, will furnish a written statement
duly acknowledged of the amount due on this mortgage and whether any offsets of
defenses exist against the mortgage debt.
12. 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, and that 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:
Double L Ranch #3, LLC
P.O. Box 132
Freedom, WY 83012
Mortgagee:
DS Lumina Investments, LLC
2422 Naudian St.
Philadelphia, P A 19146
The Mortgagor shall be given a copy of this Mortgage upon its execution or after
the recording of this instrument.
13. Headings. The headings used in this mortgage are for convenience only
and are not to be used in its construction.
14. Successors and Assigns Bound. The covenants and agreements herein
contained shall bind, and the rights hereunder shall inure to, the respective heirs,
successor and permitted assigns of Mortgagor and Mortgagee.
15. 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 terms "foreclosure" and "foreclose" as used
herein, shall include the right of foreclosure by any suit, action or proceeding at law of
Second Mortgage
Page 5
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O~18531
C00463
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.
16. 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 recordation, if
any.
IN WITNESS WHEREOF, the said Mortgagor and Mortgagee have hereunto
signed and sealed these presents the day and year first above written.
By:
Its: Manger
DS Lumina Investments, LLC
(Mortgagee)
BYcn~
David Stout
Its: Manger
Second Mortgage
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091.8531.
C00464
STATE OF WY0f{\\ ~ ss.
COUNTY OF L; \\.Lt")\<\ )
On Apc;-\ \' -1-,2006, before me, La.f:\C_:€. ff\o\-\-('{\t;e(\ ,a
notary public, personally appeared Lance Mortensen, who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his authorized capacity and that
by his signature on the instrument acted, and executed the instrument.
ANGIE PUTNAM· NOTARY PUBLIC
COUNTY OF A STATE OF
UNCOLN . 'N'fOfMHG
MY COMMISSION EXPIReS SEPT. g, 2(X)g
WITNESS my hand and official seal.
STATE OF W\!()N\\("Q)
. I -J ) ss.
COUNTY OF Ll(\( 011'\)
On Apr\ \ ~, 2006, before me, J::~Q" \à. S\ O\.À. \- , a notary
public, personally appeared David Stout, who proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity and that by his
signature on the instrument acted, and executed the instrument.
-{lµ~
Notary P lie
My Com --·SSion Expires: 9- Cf-;wo9
WITNESS my hand and official seal.
ANGIE PUTNAM . NOTARY PUBLIC
COUNTYOF A STATE Of
UNCOCN . WYCUHG
MY COMMISSION EXPiREs sePT. D. 200g
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Notary Publ
My Commission Expires: ~-C(-)(b~
Second Mortgage
Page 7
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0918531
SCHEDULE C
C00465
The land referred to in this commitment is situated in the State of Wyoming, County of Lincoln, and is described as
fonows:
All of GLO Lot 4 of Section 21, T36N R119W, Lincoln County, Wyoming,
EXCEP~ that tract of record in the Office of the Clerk of Lincoln County
in Boo~ 18 of Deeds on page 525, AND
that part of the ~ of Section 28, T36N R119W, Lincoln County, Wyoming,
lying and Þeing situate westerly of the thread of the Salt River,
including part of that tract of record in the office of the Clerk of
Lincoln County in Book 399PR on page 42~ and all of that tract of record'
in Book 534~R on page 421, secondarily described as follows:
Beginning at the southéast corepr of said GLO Lot 4;
thence N 87°47'42" E, 213.4 feet, more or less, along the north
line of the ~~ of said Section 28, to the thread of the Salt
River} ,
thence coursing said thread as follows:
S 11047'09d W, 116.8 feet, more or less, to a position;
S 03°1.8'55" E, 59.8 feet, more or less. to a position;
S 25°57'51" E, 194.2 feet, more or less, to a position;
S 04056'26" W, 182.8 feet, more or less. to a position;
S 16°22'371' W, 37.7 feet, more or less, to a position;
S 13°57'02" E, 70.6 feet, more or less, to a position;
S 41°03'32" E, 394.9 feet, more or less, to a position;
S 53036'29" E, 299.7 feet, more or lése. to a position;
S 49D24'46" E, 210.4 feet, more or lesa, to a position;
$ 37°56'2711 E. 128.7 feet, more or less, to a position;
S 00°07'31/1 W, 96.5 feet, more or less, to a position;
S 41°26'19'1 W, 123.1 feet, more or less, to a position;
N 84036'0811 W. 282.0 feét. more or less, to a position;
N 66°04'2511 W, 155.4 feet, more or less, to a position;
N 80°36'1011 W, 179.9 feet, more or less, to a position;
S 67°16'39" W. 170.6 feet, more or less, to a position;
S 53021'37" W, 168.8 feet, more or less, to a position;
S 26°28'36" W, 152.8 feet, more or less, to a position;
S 21°02'5']11 W, 199.3 feet, more or less, to a positiôn;
S 11°03'57/1 W, 94.3 feet, more or less, to a position;
S 27°34'20" E, 90.8 feet, Ul.O,re or les8, to a position;
S 27°35'02" E, 92.0 feet, more or less, to a position;
N 65°07'56" E, 354.4 feet, more or less, to a positioIi¡
S 68°42'06" E, 202.8 feet, more or less, to a position¡
S 36°01'1211 B, 530.4 feet, .more or less, to a position on the
south line of said ~E~ and leave said thread¡
Legal Description Continued.
11/91
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thence S 89°21'11" W, 121.2 feet, more or less, along said south
line, to a braas cap;
thence continuing, $ 89°21'1111 W, 734.88 feet, along said south
line to the southwest corner of said ~E~;
thence 9 89°17'06" W, 128,1B feet, along the south line of GLO Lot
2 of said Section 28, to a point on the ~ast line of that tract
of record in said Office in Book 399PR on page 431¡
thence N 00°30'38" W, 50.68 feet, along said east line, to the
northeast rebar of said tract;
thenceS 89°41'07" W, 578.13 feet, along the north line of said
tract and the ~esterly extension thereof to a position on the
west line of said Section 28; .
thence N 00°01'32" E, 329.60 feet, along the said west line, to the
northeast corner of Section 15, T4S R46E, Bonneville County,
Idaho; .
thence N 00°11'54" W, 2201.54 feet, along said west line, to the
northwest cornär of said Section 28;
thence N 00°11'11" W, 1083,88 feet, along the west line of said GLO
Lòt 4, to the southwest point of that tract of record in the
said Office in Book 18 of Deeds on page 525;
thence N 89°10' 05" E, 264.00 feet I along the south line of said
tract, to the southeast position thereof;
thence N Oooll':L111 W, 247.50 feet, along tbe east line of said
tract, to the northeast point thereof, on the north line of said
GLO Lot 4;
thence N 89°10'05" E, 453.33 feet, along said north line, to the
northeast corner of said GLO Lot 4;
thence S 00°19'1611 E, 1338.61 feet;, along the east line of GLO Lot
4 ,to the Corner of Beginning.:
EXCEPTING THEREFROM tbe land conta.ined in Warranty Deed recorded
September 11, 2003 in Book 534PR on page 421 of the records of the
Lincoln County Clerk.
¡,;
11/91
TOTAL P. 139