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HomeMy WebLinkAbout924031 0001.37 4J MORTGAGE THIS MORTGAGE is made on the ¡;;; 7 iry of October, 2006, by ROSS MYERS and JANETTE MYERS, husband and wife, as tenants by the entireties, 5476 County Road 125, Freedom, Wyoming 83120, hereinafter referred to jointly as "Mortgagor". Mortgagor hereby mortgages to LAWRENCE F. READ and MARY L. READ, husband and wife, P.O. Box 4296, Bedford, Wyoming 83112, and their heirs and assigns, hereinafter jointly 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 FOUR HUNDRED THOUSAND DOLLARS ($400,000.00) 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 attached property descriptions. 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; RECEIVED 11/212006 at 4:20 PM RECEIVING # 924031 BOOK: 639 PAGE: 137 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER. WY MORTGAGE MYERS / READ PAGE 1 OF 10 1 ~~\ J) )tQ~~ O~~4031... 0001.38 subject, however, to all covenants, conditions, easements, and right-of-way, and to mineral, mining and other exceptions, reservations and conditions of sight and/or of record. Mortgagor covenants that at the signing and delivery of the Mortgage, said Mortgagor 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 title to all of said property against all lawful claims and demands, and that the same is III ~11. fì fì II b (2¡)(ce0" +hose fñVLOU.S 1'1 0-+ r~t!.<Tr). (f~i1 ree rom a encum rances", ,~, r However, this Mortgage is subject to the express condition that if Mortgagor pays, or causes to be paid, to Mortgagee the sum of FOUR HUNDRED THOUSAND DOLLARS ($400,000.00), together with interest at the rate of eight percent (8 %) 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 & Late Payments. 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. If Mortgagor makes more than three (3) late payments of the indebtedness secured hereby, as defined the Promissory Note of even date that was executed and delivered by Mortgagor to MORTGAGE MYERS / READ PAGE 2 OF 10 ~~0\ rO~~40Ji 0001.39 Mortgagee, 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 such payment shall not prejudice Mortgagee's right to do so. 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 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 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 such 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. MORTGAGE MYERS / READ PAGE 3 OF 10 If~~ 03~4031- 000140 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, remove or attempt to remove said improvements, or any part thereof, 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 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 shall, upon the mutual agreement of the Mortgagor and the Mortgagee, 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 MORTGAGE MYERS / READ PAGE 4 OF 10 (J. MN\\ ~) Ï1¡V\ O~~4:0,j:L 0001.4j. 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. 8. Default. If Mortgagor defaults in the payment of the indebtedness hereby secured, for a period of 30 (thirty) days after written notice, or if Mortgagor removes or attempts to remove any of said improvements 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 MORTGAGE MYERS / READ PAGE 5 OF 10 ~ì~~ O~;::40~.1- 000142 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 right 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's 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 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's 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 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 MORTGAGE MYERS/READ PAGE 6 OF 10 ~~~ O~~40:ji 0001.43 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. 11. 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 MORTGAGE MYERS / READ PAGE 7 OF 10 J1~~~} O~~40Jl 000144 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. Mortgagee shall, within ten (10) days upon a request made in person, or within thirty (30) days upon request by mail, furnish a written and duly acknowledged statement of the amount due on this Mortgage and whether any offsets or defenses exist against the mortgage debt. 14. Notices. Any notices, demands, or requests pursuant to this Mortgage 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: Mortgagee: Ross Myers & Janette Myers 5476 County Road 125 Freedom, Wyoming 83120 Lawrence F. Read & Mary L. Read P.O. Box 4296 Bedford, Wyoming 83112. MORTGAGE MYERS / READ PAGE 8 OF 10 rr~ O~~~1:0:t'L 000145 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. 18. Waiver of Homestead. Mortgagor hereby relinquishes and waives all rights under and by virtue of the homestead exemption laws of the State of Wyoming. 19. Incorporation of Promissory Note. This Mortgage is made 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 Mortgagor, specifically Ross Myers and Janette Myers, are joint and several. MORTGAGE MYERS / READ PAGE 9 OF 10 ~ O;j~j"'O . .... oj.1. 000146 IN WITNESS WHEREOF, the said Mortgagor has hereunto signed and sealed these presents the day and year first above written. ' R --"",/' / JAN TE MYERS STATE OF WYOMING ) ) SS. COUNTY OF LINCOLN ) ACKNOWLEDGED before me on this, the 6)7 day of October, 2006, by Ross Myers. WITNESS my hand and official seal. GLORIA K. BYERS· NOTARY PUBLIC County of ~ State .of Uncoln ~ Wyommg My Commission Expires Sept. 15, 2007 ~)! &;-~ NOTARY PUBLIC My Commission expires: 9 - /E -07 STATE OF WYOMING ) ) SS. COUNTY OF LINCOLN ) ACKNOWLEDGED before me on this, the ó2 7 day of October, 2006, by Janette Myers. WITNESS my hand and official seal. GLORIA K BYERS· NOTARY PUBLIC C~unty of ,& State of Uncoln . Wyoming My Commission Expires Sept. 15, 2007 ~/r!~~ NOTARY PUBLIC My Commission expires: 9 - /5 -{)7 MORTGAGE MYERS/READ PAGE 10 OF 10 O~~/lO:'~ 1. 000147 Description: Star Valley Cheese Parcel 3 A portion of Tract 2, as referred to in the Notice of Mortgage recorded in Book 493PR, 607, with the Office of the Clerk of Lincoln County, Wyoming, within the NW1/4SE1/4 of Section 23, T34N. R119VV, of the 6th P.M., Thayne, Lincoln County, Wyoming, the metes and bounds being more particufarly described as follows: BEGINNING at the P. K. Nail marking the Southeast corner of the Rodick property¿ as referred to in the Deed recorded in Book 447PR. on Page 314, with said Office, said Point of Beginning being 525'58'53"E 1,358.92 feet from the BLM. type Monument marking the H. Knowlton Jr. RLS 597, 1973 focation for the Northwest Comer of said NW114SE114 and 589°24'52''£, along the South line of saM Rodeck property, 190.03 feet to the Point of Beginning; thence NO"28'04"E along the East line of said Rodick property, 10B.00 feet to an Aluminum Caf} on fran Pipe; thence 589°24'52"£, paralrel with said South line, 150.00 feet to an Aluminum Cap on Iron Pipe; thence Soo28'04"W, parallel with said East Ime, 108.00 feet to an Aluminum Cap on Iron Pipe; thence N89°24'52"W, at an identical angfe with said South line, 150.00 feet to, to .. the Point of Beginning, the Area being 0.372 Acres of land. GRANTING and RESERVINGIHER£FROM: A 60 feet wide Rjght,:'of~Way Easement for Ingress; 'Egressand Utilities, from Main Street (U.S. HighwaY(39), the North line being more particularly described as follows: .. f#£GINNJ!vG at the iron Pipe m?!r!fÌngthe Southwest cÇ?rner of said Rodeck property; thence SB9°24'52"E, along the South ·Ime .of saId Rodeck property and'/tsEasterly prolongatIOn, 533.68feet. TOGETHER WITH and SUBJECT-TO: All Easements, Exceptio/)~;Reservations, Restrictions, Rights-or-Wayand . improvements or sight ,and or record. . GRANTING TO GRANTEE, AND RESERVING TO GRANTOR, A NON-EXCLUSNE EASEMENT AS FOLLWS: AN EASEMENT 60 FEET IN WIDTH, Running to and rrom U.S. Highway 89 and Hokanson Avenue, for ingress, egress, and for the installation, operation, maintenance, repair, and replacement of underground utilities and for such parking as will not obstruct ingress and egress, said easement described as follows: Beginning at the Southeast comer of the above described parcel; Thence S6"05'51"E, along the said west right-of-way line 60.41 feet; Thence N89"24'52"W, parallel with the South line of the above described parcel, 513.29 feet to a point in the Easterly right-of-way line for U.S. Highway 89; Thence N23°58'43"W, along said Easterly right-of-way line, 65.97 feet to the Southwest comer of said Rodeck property; Thence S89024'52"E, along the South line of said Rodeck property, and the Easterly prolongation thereof, 533.68 feet, to the Point of Beginning. TOGETHER WITH AND SUBJECT TO: All easements, exceptions, restrictions, reservations, rights-of-way, improvements and conditions of sight and or record, including but not limited to those shown hereon. O~~40~:ill 0001.48 Exhibit A Part of Section 33, Township 35 North Range 119 West of the 6th P.M., Lincoln County, Wyoming being more particularly described as follows: BEGINNING at a point which is 78 rods South of the Northwest corner of Lot 1 of said Section 33 and running thence East 20 rods; thence South 4 rods; thence East 20 rods; thence South 18 rods; thence West 40 rods; thence North 22 rods to the POINT OF BEGINNING.