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HomeMy WebLinkAbout945771 MORTGAGE RECEIVED 3/9/2009 at 4:25 PM RECEIVING # 945771 BOOK: 717 PAGE: 191 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY ÜOv191 THIS MORTGAGE is executed and delivered effective the 6th day of March, 2009, by Trout Unlimited Property Management, a Utah limited liability company, (hereinafter referred to as "Mortgagor"), to Charles C. Burnham (hereinafter referred to as "Mortgagee"). Mortgagor, to secure payment of the sum of Five Hundred Thousand Dollars ($500,000), together with interest thereon as set forth in a Promissory Note of even date herewith, from Daniel A. Schwab to Charles C. Burnham, DOES HEREBY MORTGAGE to the Mortgagee, the following described real property situated in Lincoln County, Wyoming: ~ [, The real property described in Exhibit A attached hereto and made a part hereof, ~ Including and together with all improvements and appurtenances thereon and thereunto belonging, but subject to taxes, reservations, covenants, conditions, encroachments, restrictions, rights-of-way and easements of sight and record, if any. This Mortgage is subject to the express condition that if the Mortgagor pays or causes to be paid to the Mortgagee the sum of Five Hundred Thousand Dollars ($500,000) together with interest thereon as set forth in the Promissory Note of even date herewith which is secured by this Mortgage, including any renewals, modifications and extensions thereof, the ultimate maturity date of said note being June 6th, 2009 then this Mortgage and said note shall cease and be null and void. Mortgagor hereby releases and waives all rights under and by virtue of the homestead exemption laws of the State of Wyoming. Mortgagor further covenants and agrees as follows: 1. 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 the time of payment of any part of the indebtedness secured hereby. 2. Mortgagor shall pay all taxes and assessments levied or assessed against the mortgaged property. 3. Mortgagor shall not commit or permit waste and will do nothing on or in connection with the mortgaged property which may impair the security of the Mortgagee hereunder. Mortgagor shall not permit the mortgaged property or any part thereof to be levied upon or attached in any legal or equitable Mortgage Page 1 of 5 ~~ ûOv192 proceeding, except to the extent that such levy or attachment is being contested in good faith by appropriate proceedings. Mortgagor agrees to pay in full the amount of any such levy or attachment within ten (10) days after any final judgment thereon has been entered. 4. If Mortgagor defaults in the payment of the taxes, assessments, or other lawful charges, the Mortgagee may, without notice or demand pay the same, and all sums so paid shall be added to the principal sum of the mortgage debt. Any sums so paid shall draw interest at the rate of fifteen percent (15%) per annum. 5. If the Mortgagor defaults in the payment of the indebtedness hereby secured or of any part of any installment of principal or interest or in case of breach of any covenant or agreement herein contained, or contained in the Promissory Note secured by this Mortgage, which default is not remedied within thirty (30) days after notice thereof is mailed by or on behalf of the Mortgagee as provided hereafter, the whole of the then indebtedness secured hereby, both principal and interest, together with all 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, or by advertisement and sale as authorized by Wyoming statute, 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 agrees to pay all costs of enforcement or foreclosure including a reasonable attorney's fee. The failure of the Mortgagee to promptly foreclose upon a default shall not prejudice any right of said Mortgagee to foreclose thereafter during the continuance of such default or any 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 attorney's fees and all monies expended or advanced by the 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 the Mortgagor. 6. 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 the mortgaged property and to all rents, issues and profits thereof from the occurring 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 Mortgage Page 2 of 5 ¡fdr 00&1.93 may be enforced by the Mortgagee by any appropriate suit, action or proceeding. Mortgagee shall be entitled to a receiver for the mortgaged 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 the mortgaged property and without regard to the value of the mortgaged 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 said property shall be applied by such receiver according to law and the orders and directions of the court. 7. If the property described herein is sold under foreclosure, and the proceeds are insufficient to pay the total indebtedness hereby secured, the Mortgagor shall be personally bound to pay the unpaid balance and the Mortgagee shall be entitled to a deficiency judgment. 8. Mortgagor shall not sell or transfer the property as long as any amount remains unpaid hereunder without the written consent of Mortgagee first had and obtained, which consent shall not be unreasonably withheld. In the event of any such sale or transfer without such consent, Mortgagor shall remain fully liable hereunder, and Mortgagee, at Mortgagee's election, may declare the entire principal balance and all accrued interest thereon immediately due and owing together with all applicable charges according to the terms of the promissory note secured hereby, and may proceed to collect the same in any manner provided by law or by the terms hereof. Mortgagor agrees to give Mortgagee prior written notice of any proposed sale, conveyance or other transfer of the property subject to this Mortgage. If Mortgagee gives consent to any such transfer, then Mortgagee may insist upon the following as a condition to such consent: A. The continuing liability of Mortgagor under the promissory note and this Mortgage; B. Satisfactory evidence of the ability and financial capacity of the assignee or transferee to make required payment and otherwise perform under the note and this Mortgage; C. Approval of the terms and conditions of all of the instruments proposed in connection with such sale, conveyance or transfer; D. The payment by Mortgagor of reasonable expenses incurred by Mortgagee in reviewing the information and materials submitted by Mortgage Page 3 of 5 1¢#' ÛOii194 Mortgagor regarding the determination set forth above, including reasonable attorney's fees incurred by Mortgagee. 9. The acceptance of this Mortgage and the note it secures by the Mortgagee shall be an acceptance of the terms and conditions contained herein. 10. Any notice required to be given to any person hereunder, or under the terms of the Promissory Note secured hereby, shall be deemed to have been given when deposited in the United States mail, postage prepaid, certified mail, and addressed as follows: If to Mortqaqee: Charles C. Burnham 622 Jennings Lane Battle Creek, MI 49015 If to Mortqaqor: Trout Unlimited Property Management P.O. Box 550 Afton, WY 83110 or to such other address as shall be specified in writing from time to time in accordance with the provisions hereof. Any notice so mailed shall for all purposes hereof be deemed to have been personally served upon such party on the date when such notice is deposited in the United States mail. 11. As collateral and further security for the payment of the indebtedness hereby secured, Mortgagor shall keep any improvements now existing or hereafter erected on the mortgaged property insured against loss by fire, with extended coverage provisions, in an amount at least equal to the replacement cost of said improvements, and will pay when due all premiums on such insurance. All such insurance shall have attached thereto loss payable clauses in favor of the Mortgagor and Mortgagee as their interests may appear. The insurance proceeds or any part thereof, shall, at the option of the Mortgagor, be applied either to the reconstruction of improvements on the mortgaged property or to the payment of the indebtedness hereby secured. Mortgage Page 4 of 5 ~ø ÜOú:195 12. 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 "foreclosure" and "foreclose" as used herein shall include the right of foreclosure by any. suit, action or proceeding at law or in equity or by advertisement and sale of the mortgaged property or in any other manner now or hereafter provided by Wyoming statutes including the power to sell. IN WITNESS WHEREOF, this Mortgage has been executed effective on the date first above written. Trout Unlimited Property Management LLC, a Utah limited liability company, By:~ STATE OF WYOMING ) ) ss. COUNTY OF TETON ) ; On this /Q'+'day of r l]C~í(.,V.,,- ,2009, before me personally appeared Daniel A. Schwab, to me personally known, who being by me duly sworn, did say that he is the Manager of Trout Unlimited Property Management, a Utah limited liability company, that the foregoing instrument was $igned on behalf of said limited liability company by authority of its operating agreement, and that the foregoing instrument is the free act and deed of the limited liability company. \' 'J' ~ ~>L,k,-, --- Notary' p¡ublic ! ¡ \'-.-/ Witness my hand and official seal. ,) / t· I~/,~ f My Commission expires: CJ~' 'd~~\ '8C'i \ \ Dyanna Parker - Notary PUblic, County 01 . State 01 Unoaln Wyoming CommIMIOn ~29. 20n Mortgage Page 5 of 5 State of Wyoming County of Lincoln û00196 On MARCH 6, 2009, before me personally appeared Kristi Schwab, to me personally know, who being by me duly sworn, did say that she is the Manager of Trout Unlimited Property Management, a Utah limited liability company, that the foregoing instrument was signed on behalf of said limited liability company by authority of its operating agreement, and that the foregoing instrument is the free act and deed of the limited liability company. Witness my hand and official seal. Dyanna Parker - Notary Public County of State of Lincoln Wyoming M CommIN/Qn . June 29, 2011 ,\" ~-"")~ -" NoT~ria1 Officer - ,_/ J / r<- ( -{ ------ My Commission Expires: .! (' - ~)CI' t t 00û197 BEGINNING AT A POINT WHICH IS THE NORTHWEST CORNER OF THE SEXSWX OF SECTION 14, T32N, R119W OF THE 6TH P.M., LINCOLN COUNTY, WYOMING, AND RUNNING THENCE SOUTH 41 RODS; THENCE EAST 78 RODS; THENCE NORTH 41 RODS; THENCE WEST 78 RODS TO THE POINT OF BEGINNING.