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HomeMy WebLinkAbout930468 "'. 000.559 MORTGAGE THIS MORTGAGE (hereinafter called the "Mortgage"), is made and executed this / 5'tJ1...day of June, 2007, by and between Fields of Gold, LLC, a Wyoming limited liability company (hereinafter called "Borrower"), and National Wood Products, Inc. (hereinafter called "Lender"). WIT N E SSE T H: FOR THE PURPOSE OF SECURING the full and complete payment, satisfaction and/or performance of all "Indebtedness" owed by William Thomas Sharpe, doing business as Bill Sharpe Construction (the "Debtor") to National Wood. For purposes of this Agreement, "Indebtedness" shall mean and refer to any and all obligations which the Debtor owes to National Wood pursuant to: (1) The credit application and personal guaranty entered into on or about May 29, 1998 between the Debtor and National W ood (collectively the "N ote"); (2) Any and all other present and future obligations of the Debtor or Trustors to National Wood, whether incurred pursuant to a written contract, invoice, line of credit or otherwise and whether consisting of obligations for materials purchased, interest charges, costs and attorneys' fees charged against National Wood or other obligations of the Debtor or Trustors to National Wood, all amounts owed under any modifications, renewals, or extensions of any of the foregoing obligations, and any and all of the foregoing which arise after the filing of a petition for relief by or against the Debtor under the Bankruptcy Code, even if the obligations do not accrue because of the automatic stay under I I U .S.C. § 362 or otherwise; (3) Each agreement and covenant set forth herein; and (4) All sums expended or advanced by National Wood under or pursuant to the terms hereof, together with interest thereon as herein provided. The Indebtedness being secured by this Mortgage, as further evidenced by the Note, is One Hundred Thousand Dollars ($100,000.00). Now therefore, to secure the payment of the Note, all other sums to be paid pursuant to this Mortgage, and the performance of all covenants and agreements set forth herein, Borrower hereby mortgages, warrants, grants, bargains and conveys unto the Lender the following described property, hereinafter referred to as "the Property", consisting of buildings and improvements, together with all fixtures and appurtenances thereto and any and all building improvements and permanent fixtures and appurtenances which may be hereafter acquired and placed thereon, all replacements or additions thereto, and all easements, licenses, leases and rights-of-way thereunto attached or referable to said premises. The legal description of the Property is as follows: SEE ATTACHED EXHIBIT A Tax Serial No. 318034002100 The Property is mortgaged unto the Lender subject to and in accordance with the following specific covenants, stipulations and agreements: Borrower's Covenant to Pay and Perform Covenants. Borrower shall pay when due all amounts at any time owing under the Note secured by this Mortgage and shall perform and observe each and every term, covenant and condition contained herein and in the Note. All payments received by Lender shall be applied first to any unpaid taxes and insurance due under paragraph; second to interest due; third to principal due; and last, to any late charges due under the Note. Warranties of Title. Borrower warrants that Borrower has good and merchantable title to the said premises and has the right and lawful authority to sell, convey, mortgage, assign and pledge the same, and that the same is free and clear of all liens and encumbrances of whatsoever kind and nature and subject only to easements and mortgages of record. Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record. Maintenance ofthe Property. Borrower shall at all times maintain, preserve and keep the Property and every part thereof in good condition, repair and working order and wiJI from time to time make all needful and proper repairs, replacements, additions, betterments and improvements thereto so that the value thereof shall at all times be maintained and preserved. Mortgage Page I of 5 pages RECEIVED 6/18/2007 at 2:04 PM RECEIVING # 930468 BOOK: 662 PAGE: 559 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY 09304f)8 000560 Covenant Against Further Encumbrances. Borrower covenants and agrees to keep the Property and the rights, privileges and appurtenances thereto, free from all lien claims or encumbrances of every kind that may be superior to this Mortgage. If Lender determines that any part of the Property is subject to a lien which may attain superiority over this Mortgage, Borrower shall, within ten (10) days after notice of such determination by Lender, either obtain from the holder of such lien an agreement satisfactory to Lender subordinating the lien to this Mortgage or shall cause the same to be discharged by payment, bonding, or otherwise to the satisfaction of Lender. Payment of Taxes, Assessments and Insurance.:. Borrower agrees to pay, when due, all taxes, liens, judgments and assessments of any nature, and shall insure, to the satisfaction of the Lender, all buildings and personal property thereon against loss or damage resulting from fire, windstorm, and other hazards, including extended coverage, vandalism and malicious mischief endorsements, in an amount not less than the full replacement cost thereof. Borrower agrees to procure and pay for a policy of fire, liability and extended coverage insurance in an amount equal to the greater of either a) the balance due at any time under this Agreement or b) the replacement cost of the improvements upon the property on the date hereof in companies and amounts satisfactory to Lender during until the debt hereby secured has been paid in full. Borrower will have Lender added to said policy as additional named insured so long as said property is subject to the terms of this agreement. If Borrower fails to keep and maintain such insurance, Lender may, at Lender's option secure the necessary insurance and the cost thereof shall be added to the total debt to be paid pursuant to the Note. Borrower will furnish to Lender such evidence of such insurance as Lender may require. In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may make proof of loss if not made promptly by Borrower. In the event of a total or partial loss of said structure covered by insurance, the proceeds of such insurance shall, if economically feasible and Lender's security is not lessened, be applied first to the rebuilding or repair of the premises to the condition or to the value that it had prior to such loss, with the excess, if any, being applied to reduce the unpaid balance still due under the Note. Ifrestoration is not feasible, or if Lender's security is lessened, the insurance proceeds shall be applied to the sums secured by this Mortgage, whether or not then due, with any excess paid to the Borrower. If Borrower abandons the Property, or does not answer within thirty (30) days a notice from Lender that the insurance carrier has offered to settle a claim, then Lender may collect the insurance proceeds. Lender may then use the proceeds to repair or restore the Property or to pay sums secured by this Mortgage, whether or not then due. The thirty-day period will begin when the notice is given. Restriction on Assignment. Borrower shall not sell, assign, transfer, convey, lease or sublease any portion of the Property without paying to the Lender the entire balance due under this Mortgage and the Note secured hereby. Indemnity. Borrower shall indemnify Lender from all loss, damage and expense, including reasonable attorney's fees, incurred in connection with any suit or proceeding in or to which Lender may be made a party by reason of this Mortgage or to which Lender may become a party for the purpose of protecting the lien of this Mortgage or enforcing Lender's rights hereunder. All such amounts shall be so much additional indebtedness hereby secured, and the Borrower shall reimburse the Lender therefor on demand, together with interest at twelve percent (12%) per annum from the date of demand to the date of payment. Protection of Property and Maintenance. Borrower shall not destroy, damage or impair the Property, allow the Property to deteriorate, or commit waste on the Property. Borrower shall be in default if any forfeiture action or proceeding, whether civil or criminal, is begun that in Lender's good faith judgment could result in forfeiture of the Property or otherwise materially impair the lien created by this Mortgage. If Borrower fails to perform the covenants and agreements contained in this Mortgage, or if there is a legal proceeding that may significantly affect Lender's rights in the Property, Lender may do and pay for whatever is necessary to protect the value of the Property and Lender's rights in the Property. Lender's actions may include paying any sums secured by a lien which has priority over this Mortgage, appearing in court, paying reasonable attorney's fees and entering on the Property to make repairs. Although Lender may take action under this paragraph, Lender does not have to do so. Any amounts disbursed by Lender under this paragraph shall become additional debt of Borrower secured by this Mortgage. Unless Borrower and Lender agree to other terms of payment, these amounts shall bear interest from the date of disbursement at the Note rate and shall be payable, with interest, upon notice from Lender to Borrower Mortgage Page 2 of 5 pages O.9,304"'~)8 000.561. requesting payment. Inspection. Borrower agrees to permit Lender and Lender's agents, at all reasonable times, to inspect the mortgaged premises for the purpose of determining whether Borrower is in compliance with the provisions of this Mortgage. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of any part of the Property, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to Lender. In the event of either a total or partial taking of the Property, the proceeds shall be applied to the sums secured by this Mortgage, whether or not then due, with any excess paid to Borrower. Ifthe Property is abandoned by Borrower, or if, afternotice by Lenderto Borrowerthatthe condemnor offers to make an award or settle a claim for damages, Borrower fails to respond to Lender within thirty (30) days after the date the notice is given, Lender is authorized to collect and apply the proceeds, at its option, either to restoration or repair of the Property or to the sums secured by this Mortgage, whether or not then due. Application of proceeds to principal shall not extend or postpone the due date of the monthly payments referred to in this Mortgage or change the amount of such payments. Default. Ifone or more ofthe following events occurs during the term of this mortgage, the Borrower shall be in default hereof: (a) If a default shall occur in the payment of any installment of principal, interest or of any other sum due and payable under the Note or this Mortgage, or if Borrower shall fail to perform any covenant or condition set forth in this Mortgage; or (b) If Borrower admits insolvency or inability to pay Borrower's debts, or if a trustee or receiver shall be appointed for the Borrower or for all or the major part of the Borrower's property or the mortgaged premises, in any involuntary proceeding, or if any court shall have taken jurisdiction of all or the major part of the Borrower's property or the mortgaged premises in any involuntary proceeding for the reorganization, dissolution, liquidation or winding up of the Borrower, and such trustee or receiver shall not be discharged or such jurisdiction relinquished or vacated or stayed on appeal or otherwise stayed within sixty (60) days, or the Borrower shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due or shall consent to the appointment of a receiver or trustee of all or the major part of its property or the mortgaged premises; or (c) Ifany mortgage of record on the date of the execution hereof is hereafter declared to be in default or foreclosure is commenced by the holder of such mortgage, such default or foreclosure shall also be deemed to be a default of this mortgage. Remedies on Default. Upon Borrower's default of any covenant or agreement in this Mortgage, including the covenants to pay when due any sums secured by this Mortgage, Lender, prior to acceleration, shall give notice to Borrower specifying: (I) the breach; (2) the action required to cure such breach; (3) a date, not less than 30 days from the date the notice is mailed to Borrower, by which such breach must be cured; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration ofthe sums secured by this Mortgage. If the breach is not cured on or before the date specified in the notice, Lender, at Lender's option, may declare all of the sums secured by this Mortgage to be immediately due and payable without further demand and may foreclose this mortgage by invoking the power of sale provided by Wyoming Statutes, or Lender may pursue any other remedies permitted by applicable law. Lender shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorney's fees. If Lender invokes the power of sale, Lender shall give notice of intent to foreclose to Borrower and to the person in possession ofthe Property, if different, in accordance with applicable law. Lender shall mail a copy of a notice of the sale to Borrower. Lender shall publish the notice of sale and the Property shall be sold in the manner prescribed by applicable law. Lender or Lender's designee may purchase the Property at any sale. The proceeds for the sale shall be applied in the following order: (a) to all reasonable costs and expenses of the sale, including, but not limited to, reasonable attorney's fees and costs qftitle evidence; (b) to all sums secured by this Mortgage; and (c) the excess, if any, to the person or persons legally entitled thereto. Mortgage Page 3 of 5 pages 09304h~~ 000562 Lender shall, at Lender's option, have the right, upon default, acting through Lender's agent or attorneys, either with or without process oflaw, forcibly or otherwise, to enter upon and take possession ofthe mortgaged premises, to expel and remove any persons, goods or chattels occupying or upon the same, to collect or receive all the rents, issues and profits thereof and to manage and control the same, and to lease the same or any part thereof from time to time, and after deducting all attorney's fees and expenses incurred in the protection, care, maintenance, management and operation of said premises, Lender shall have the right to apply the remaining net income upon the indebtedness secured hereby or upon any deficiency decree entered in any foreclosure proceedings. The rights and remedies granted to the Lender hereunder are cumulative, and are not in lieu of, but are in addition to, and shall not be affected by the exercise of any other remedy or right not or hereafter existing at law or in equity or under the Note, or any other document securing Borrower's obligations under the Notes. No delay in the exercise or omission to exercise any remedy or right accruing on any default shall impair any such remedy or right or be construed to be a waiver of any such default, or acquiescence therein, nor shall it affect any subsequent default of the same or a different nature. Every such remedy or right may be exercised concurrently or independently, and when and as often as may be deemed expedient by Lender. Satisfaction of Mortgage. Upon full payment of all sums secured hereby at the time and in the manner provided, this conveyance shall be null and void, and upon demand therefor following such payment, a reconveyance or release of the mortgaged premises shall in due course be made by Lender to Borrower. Miscellaneous. All provisions hereof shall inure to and bind the respective successors and assigns ofthe parties hereto. The word "Borrower" shall include all persons claiming under or through Borrower, and all persons liable for the payment ofthe indebtedness or any part thereof, whether or not such persons shall have executed the Note or this Mortgage. Borrower's covenants and agreements shall be joint and several. Wherever used, the singular number shall include the plural, the plural the singular, and the use of any gender shall be applicable to all genders. Notices. All notices, demands, consents or requests which are either required or desired to be given or furnished hereunder shall be in writing and shall be deemed to have been properly given if either delivered personally or sent by United States certified mail and by first class mail, postage prepaid, to the address of the parties set forth below. By notice complying with this section, each party may from time to time change the address to be subsequently applicable to it for the purpose of this section. To Lender: Kurt Micek NATIONAL WOOD PRODUCTS,INC. 2705 S. 600 W. Salt Lake City, UT 84165 To Borrower: William Thomas Sharpe FIELDS OF GOLD, LLC 807 Country Road 127 Bedford, WY 83112 Severability. The unenforceability or invalidity of a provision or provisions hereof shall not render any other provisions herein contained unenforceable. Governing Law. This Mortgage and the Note secured hereby are to be construed and enforced according to and governed by the laws of the State of Wyoming. Hazardous Substances. Borrower shall not cause or permit the presence, use, disposal, storage, or release of any Hazardous Substances on or in the Property. Borrower shall not do, nor allow anyone else to do, anything affecting the Property that is in violation of Environmental Law. The preceding two sentences shall not apply to the presence, use, or storage on the Property of small quantities of Hazardous Substances that are generally recognized to be appropriate to the normal residential uses and to maintenance of the Property. Borrower shall promptly give Lender written notice of any investigation, claim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actual knowledge. If Borrower learns, or is notified by any governmental or regulatory authority, that any removal or other remediation of any Hazardous Substance affecting the Mortgage Page 4 of 5 pages Q9304f\S 000563 Property is necessary, Borrower shall promptly take all necessary remedial actions in accordance with Environmental Law. As used in this paragraph, "Hazardous Substances" are those substances defined as toxic or hazardous substances by Environmental Law and the following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides, volatile solvents, materials containing asbestos or formaldehyde and radioactive materials. As used in this paragraph, "Environmental Law" means federal laws and laws of the jurisdiction where the Property is located that relate to health, safety or environmental protection. Waiver of Homestead. Borrower hereby waives all right of homestead exemption in the Property. IN WITNESS WHEREOF, the Borrower has caused this instrument to be duly executed on the day and year first above written. FIELDS OF GOLD, LLC, a Wyoming limited liabili company By: ete Sharpe Its: Member / Manager STATE OF u~l ) ) ss. ) COUNTY OF <4 .L I'A.Ké I hereby certify that the foregoing instrument was acknowledged before me by William Thomas Sharpe and Lynette Sharpe this / ~>- day J¡.l..v...(!.. of2007, who duly acknowledged to me that they are the Member / Managers for Fields of Gold, LLC, and has executed the foregoing with the authority of the company. Witness my hand and official seal. ?!:p- N tary Public - Mortgagc Pagc 5 of 5 pagcs My Commission Expires: 0.9,,104f"S 000.5G4 EXHIBIT A LEGAL DESCRIPTION Parcel I A portion of the Suter property, as referred to in the Deed recorded in Book 186PR on Page 430, with the Office of the Clerk of Lincoln County, Wyoming, within the NE14 of Section 3, T33N, Rl18W of the 6th P.M., Lincoln County, Wyoming, the metes and bounds being more particularly described as follows: BEGINNING at the U.S. General Land Office 1908, location for the Southwest Comer of the SE14 of Section 34, T34N R118W; thence S 89°36'36" E, along the South line of said SE14, 2660.61 feet to the U.S. General Land Office 1923, location for the Northwest Comer ofthe NW14 of Section 2 of said T33N R118W; thence S 0° 20'05" W, along the West line of said NW14, 818.75 feet; thence N 89° 36'36" W, parallel with said South line, 2660.28 feet to a Point in the East line of the NW14 of said Section 3; thence N 0°18'40" E, along said East line, 818.75 feet, to the POINT OF BEGINNING. TOGETHER with a 60 feet wide Right-of-Way Easement to Heiner Suter County Road No. 12-127, the center line being more particularly described as follows: BEGINNING at a Point in the East line of the Jerry Sutter property, as referred to in the Deed recorded in Book 146PR, on Page 670, with said Office lying within the bounds of the Right of Way for said County Road recorded in Book 181PR on Page 407, with said Office; said POINT OF BEGINNING being 133.00 feet S 89°28'43" E, along the North line of the SE14 of said Section 3, from the Marlowe A. Scherbel PLS 5368, 1999 location for the Northwest Comer of the SE14 , to the Southeast comer of said Jerry Suter property and 30.00 feet N 0°18'40" E, along said East line to the POINT OF BEGINNING; thence S 89°28'43" E, parallel with said North line, 343.06 feet; thence N 0°18'40" E, parallel with said East line, 628.33 feet; thence N 89°28'43" W, Parallel with said North line, 446.06 feet; thence N 0°18'40" E, Parallel with said East line, 1263.48 feet to a Point in the South line of the above described property.