Loading...
HomeMy WebLinkAbout952570STEVEN L. PETERNAL and LAURIE R. PETERNAL, husband and wife, Mortgagors, whose address is PO Box 843, Kemmerer, WY 83101, hereby grant, bargain, sell, convey, confirm, mortgage and warrant, with power of sale, to ELLEN T. PETERNAL and ANN PETERNAL BOYLE, as Successor Co- Trustees of the OTTO D. PETERNAL REVOCABLE TRUST dated December 16, 1992, Mortgagees, whose address is 53 Saltbush, Riverton, WY 82501, their successors and assigns, the real estate situate in Lincoln County, Wyoming described as: Township 25 North, Range 116 West, of the 6 P.M., Lincoln County, Wyoming Section 32: NW1/4NW1/4 MORTGAGE C40t Together with an easement and right -of -way on, in, over, along and across the following described tract for the purpose of conveying water for culinary use from a spring located on the following described tract of land to the tract of land described above: The SW1/4NW of Section 32, Township 25 North, Range 116 West, 6 P.M., Lincoln County, Wyoming, ENCOMPASSING an area of 40.00 acres, more or less; the base bearing for this description was the west line of the NWl of said Section 32 being N00 °04' W; each "point" marked by a steel T- shaped stake 24" long with metal cap inscribed "PAUL N. SCHERBAL RLS164 SURVEY POINT all in accordance with the plat prepared and filed in the Office of the Clerk of Lincoln County, Wyoming, titled "PETERNAL BROTHERS, INCOPORATED PLAT OF TRACT AND DIVISION OF Section 32, T25N R116W LINCOLN COUNTY, WYOMING" dated 6 December 1983. Together with all and singular the fixtures, apparatus, equipment, tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, and together with the buildings, structures and improvements now thereon or hereafter erected thereon and all additions, alterations, improvements, and repairs or replacements thereof and all property of like kind and character now or hereafter acquired, installed in, affixed to, commingled with or substituted for any of the above, and the proceeds of any or all of the above, or, used in connection with or placed on said property. TO HAVE AND TO HOLD the same to the Mortgagees, their successors and assigns forever. The Mortgagors hereby covenant with the Mortgagees that the Mortgagors are lawfully seized of said premises and has good right to sell and convey and mortgage the same; that the same are free from all encumbrances; and that the said Mortgagors will warrant and defend title against all lawful claims whatsoever. MORTGAGE Page 1 of 8 RECEIVED 3/16/2010 at 10:20 AM RECEIVING 952570 BOOK: 744 PAGE: 41 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY MORTGAGE Page 2 of 8 000042 THE MORTGAGORS HEREBY COVENANT AND AGREE WITH THE MORTGAGEES as follows: This Mortgage is given to secure payment and the Mortgagors promises to pay to Mortgagees Eighty Thousand and 00/100ths Dollars ($80,000.00), with no interest, evidenced by a Promissory Note (hereinafter the "Note of even date herewith, and incorporated herein by reference, and all other amounts due thereunder and all extensions and renewals thereof, when and as the same shall become due and payable. 1. Time is of the essence and if any amount which this Mortgage secures shall not have been paid when due and the applicable cure period has elapsed, or in case another event of default shall occur as provided in the Note or this Mortgage, the entire indebtedness may become due and payable at once at the option of the Mortgagees and without notice; failure to exercise this option howsoever often shall not constitute a waiver of the right to exercise it thereafter. If and when payment in full shall have been made as provided for herein, then these presents to be void, otherwise to remain in full force and effect. 2. Mortgagors will pay the indebtedness hereby secured promptly and in full compliance with the terms of said Note and this Mortgage, and the time of payment of said indebtedness, or any portion thereof, may be extended or renewed, and any portions of the premises herein described may, without notice, be released from the lien hereof, without releasing or affecting the personal liability of any person or for the payment of said indebtedness then remaining unpaid, and no change in the ownership of said premises shall release, reduce or otherwise affect any such personal liability, of the lien hereby created. It is further agreed that the taking of additional security of any nature shall not impair or release this Mortgage; and as a further security, the indebtedness secured by this Mortgage shall become due and payable in full forthwith at the option of the Mortgagees upon the occurrence of any of the following events: a. Mortgagors fail to make any payment when due and the applicable cure period has elapsed. b. Mortgagors break any promise Mortgagors have made to Mortgagees under this Mortgage or the Note, or Mortgagors fail to perform promptly at the time and strictly in the manner provided in the Note, or this Mortgage. c. Any representation or statement made or furnished to Mortgagees by Mortgagors or on Mortgagors' behalf pertaining to this Mortgage or the Note is false or misleading in any material respect. d. Mortgagors become insolvent; a receiver is appointed for any part of Mortgagors' property; Mortgagors make an assignment for the benefit of creditors; or any proceeding is commenced either by Mortgagors or against Mortgagors under any bankruptcy or insolvency laws. 00043 e. Any creditor tries to take any of Mortgagors' property on or in which Mortgagees have a lien or security interest. f. Mortgagors convey, directly or indirectly, through transfer of legal title or equitable title or otherwise, any interest in any collateral which is intended to secure the rights of Mortgagees herein without the prior written consent of Mortgagees. g. Each of the above events shall constitute a default if occurring with respect to any individual Mortgagor. The acceptance of any payment on the Promissory Note by the Mortgagees shall not constitute a waiver of this option, and consent to any one such conveyance shall not constitute consent to any subsequent conveyance or a waiver of this option. 3. The terms "hazardous waste," "hazardous substance," "disposal," "release," and "threatened release," as used in this Agreement, shall have the same meanings as set forth in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. "CERCLA the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99 -499 "SARA the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 49 U.S.C. Section 6901, et seq., or other applicable state or federal laws, rules, or regulations adopted pursuant to any of the foregoing. Except as disclosed to and acknowledged by Mortgagees in writing, Mortgagors represents and warrants that: (a) During the period of Mortgagors' ownership of Mortgagors' properties, there has been no use, generation, manufacture, storage, treatment, disposal, release or threatened release of any hazardous waste or substance by any person on, under, or about any of the properties. (b) Mortgagors have no knowledge of, or reason to believe that there has been (i) any use, generation, manufacture, storage, treatment, disposal, release, or threatened release of any hazardous waste of substance by any prior owners or occupants of any of the properties, or (ii) any actual or threatened litigation or claims of any kind by any person relating to such matters. (c) Neither Mortgagors nor any tenant, contractor, agent or other authorized user of any of the properties shall use, generate, manufacture, store, treat, dispose of, or release any hazardous waste or substance on, under, or about any of the properties and any such activity shall be conducted in compliance with all applicable federal, state, and local laws, regulations, and ordinances, including without limitation those laws, regulations and ordinances described above. Mortgagors authorize Mortgagees and their agents to enter upon the properties at reasonable times to make such inspections and tests as Mortgagees may deem appropriate to determine compliance of the properties with this section of the Agreement. Any inspections or tests made by Mortgagees shall be for Mortgagees' purposes only and shall not be construed to create any responsibility or liability of the part of Mortgagees to Mortgagors or to any other person. Mortgagors hereby (a) release and waive any future claims against Mortgagees to indemnity or contribution in the event Mortgagors becomes liable for cleanup or other costs under any such laws except (i) those that occurred prior to the Mortgagors' ownership of the property, and (ii) to the extent caused by Mortgagees or their agents, contractors, invitees and/or guests; and (b) agree to indemnify and to hold harmless Mortgagees against any and all MORTGAGE Page 3 of 8 00044 claims, losses, liabilities, damages, penalties, and expenses which Mortgagees may directly or indirectly sustain or suffer resulting from a breach of this section of the Agreement or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release, whether or not the same mas or have been known to Mortgagors. The provisions of this section of the Agreement, including the obligation to indemnify, shall survive the payment of the Indebtedness and the satisfaction of this agreement and shall not be affected by Mortgagees' acquisition of any interest in any of the properties, whether by foreclosure or otherwise. 4. Mortgagors shall pay or cause to be paid all taxes and assessments levied or assessed against the premises. Mortgagors agree to keep all buildings and other fixtures now or hereafter on the premises insured by companies reasonably satisfactory to the Mortgagees against loss by fire, smoke, water, windstorm and other hazards (including extended coverage), including war damages when reasonably requested in writing by the Mortgagees, in such amounts as are sufficient to protect Mortgagees' security, and in such form as the Mortgagees may reasonably require; to deliver upon request to the Mortgagees the policies for insurance, with mortgage clauses attached thereto, in favor of and in form reasonably satisfactory to the Mortgagees or its assigns; to deliver to the Mortgagees all renewal policies at least ten (10) days prior to the expiration of the existing policies; in case of the occurrence of a loss under any policy to give notice thereof by mail to the Mortgagees, hereby authorizing and empowering the Mortgagees to make proof of loss if the Mortgagors fails to do so, and to demand, receive and receipt for monies becoming payable thereunder, and to pay or cause to be paid to the Mortgagees the proceeds of such insurance or any part thereof which at the option of the Mortgagees shall be applied either in reduction of the indebtedness secured hereby or to the repair and restoration of the property damaged. 5. Mortgagors will keep the premises free and clear of all other liens and encumbrances which may be or become superior to the lien created hereby. 6. Mortgagors will not commit or permit waste on the premises, and will keep and maintain the premises in good repair. 7. Mortgagors will pay all expenses and attorneys' fees incurred by the Mortgagees, their successors or assigns, for the protection of the lien of this mortgage or for the collection of any amount due on the instrument which this Mortgage secures or for the preservation of the property mortgaged. 8. Mortgagors will comply promptly, at the expense of the Mortgagors, with all laws, statutes, ordinances and regulations affecting the premises in any manner whatsoever. 9. Mortgagors will pay to or cause to be paid directly to the Mortgagees, 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 mortgaged premises. MORTGAGE Page 4 of 8 C:O.4y04 10. In case of the failure of the Mortgagors to do so, the Mortgagees may make any payment or perform any covenant herein to be made or performed by the Mortgagors, and any payment so made or expense incurred in connection therewith by the Mortgagees shall bear interest at the rate of seven percent (7 per annum, and shall be immediately repayable by the Mortgagors, and shall be impressed as an additional lien upon the mortgaged premises, and this Mortgage shall thereupon secure the repayment of such advances with interest. 11. In case an event of default shall occur in making payments and the applicable cure period has elapsed, or performing any other covenants or agreement required of Mortgagors as provided in this mortgage, and fails to cure such default for a period of thirty (30) calendar days (or such longer period reasonably required for cure, if cure is commenced with the thirty (30) day period and diligently pursued to completion) after receipt of written notice from the Mortgagees stating the nature of the default, the Mortgagors hereby authorize and empower the Mortgagees, their 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 monies arising from such sale to retain all sums secured hereby with interest and all legal costs and charges of such foreclosure and actual attorney's fees incurred by Mortgagees (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 Mortgagors agrees to pay. In case of the foreclosure of this Mortgage, the Mortgagors hereby authorize and empower the Mortgagees, their successors and assigns, to effect insurance upon the building and fixtures aforesaid for a period covering the time for redemption for the sale of said premises under such foreclosure, and to pay the premium therefor and the amount so paid shall be impressed as an additional lien upon said premises and shall be secured by and be collectible as a part of this mortgage and bear interest at the rate of seven percent (7 per annum from the date said amount is paid. In the event of a foreclosure, Mortgagors hereby authorize and empower Mortgagees, their successors and assigns, to bring an action against any person who claims an adverse estate or interest therein for the purpose of determining 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 said premises and shall be secured by and collectible as a part of this Mortgage. In case the proceeds from foreclosure sale are insufficient to pay the total indebtedness secured hereby, subject to paragraph 3 above, the Mortgagors, binds themselves, jointly and severally, to pay the unpaid balance, and the Mortgagees will be entitled to a deficiency judgment. 12. Upon commencement of any foreclosure, or at any time thereafter, and prior to the expiration of the time for redemption from any sale of said premises on foreclosure, any court of competent jurisdiction, upon application of the Mortgagees, or the purchaser at such sale, shall, at once and without notice to the Mortgagors or any other person, appoint a receiver for said premises to take possession thereof, to collect rents, issues and profits of said premises 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 premises in good repair and condition and to pay all taxes, assessments, and special assessments, and to redeem MORTGAGE Page 5 of 8 000046 from sale for taxes, assessments, and special assessments, and to pay insurance premiums necessary to keep the premises 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. 13. In consideration of the sum of Ten Dollars ($10.00) and other valuable consideration, the receipt whereof hereby is acknowledged, the Mortgagors hereby assign, transfer and set over to the Mortgagees, its successors and assigns, the rent, profits and income from the mortgaged property with full and complete authority and right in the Mortgagees in case of default as provided for in this Mortgage and the Note to demand, collect, receive and receipt for the same and to take possession of the mortgaged property without having a receiver appointed therefor and to rent and manage the same from time to time and apply the net proceeds of such upon the indebtedness. Mortgagors hereby assign to Mortgagees all leases of the mortgaged property or any part thereof which are now or may be in effect hereafter, such assignment to take effect immediately in case of such default. Mortgagees are hereby authorized to take charge of the rental of the above described property and are hereby authorized to collect rents from said property, to eject tenants for breach of their leases and to enter into leases with and lease said property or any part thereof to tenants, to sue for unpaid rents in the name of the legal holder of said indebtedness, and are to receive for services in managing said property the usual and customary fees for such service in effect in the county in which the mortgaged premises are located at the time said services are performed. 14. Without limiting the generality of the foregoing, in case an event of default shall occur hereunder, the Mortgagors further agree as follows: a. Notice to Tenants. Mortgagees may send notices to any and all tenants of the property advising them of this Assignment and directing all rents to be paid directly to Mortgagees or Mortgagees' agent. b. Enter the Property. Mortgagees may enter upon and take possession of the Property; demand, collect and receive from the tenants or from any other persons liable therefor, all of the Rents; institute and carry on all legal proceedings necessary for the protection of the Property, including such proceedings as may be necessary to recover possession of the Property; collect the rents and remove any tenant or tenants or other persons from the Property. c. Maintain the Property. Mortgagees may enter upon the Property to maintain the Property and keep the same in repair; to pay the costs thereof and of all services of all employees, including their equipment, and of all continuing costs and expenses of maintaining the Property in proper repair and condition, and also to pay all taxes, assessments, and water utilities, and the premiums on fire and other insurance effected by Mortgagors on the Property. MORTGAGE Page 6 of 8 000047 d. Compliance with Laws. Mortgagees may do any and all things to execute and comply with the laws of the State of Wyoming and also all other laws, rules, orders, ordinances and requirements of all other governmental agencies affecting the Property. e. Lease the Property. Mortgagees may rent or lease the whole or any part of the Property for such term or terms and on such conditions as Mortgagees may deem appropriate. f. Employ Agents. Mortgagees may engage such agent or agents as Mortgagees may deem appropriate, either in Mortgagees' or Mortgagors' name, to rent and manage the Property, including the collection and application of rents. Other acts. Mortgagees may do all such other things and acts with respect to the Property as Mortgagees may deem appropriate and may act exclusively and solely in the place and stead of Mortgagors and to have all of the powers of Mortgagors for the purposes stated above. h. No Requirement to Act. Mortgagees shall not be required to do any of the foregoing acts or things, and the fact the Mortgagees shall have performed one or more of the foregoing acts or things shall not require Mortgagees to do any other specific act or thing. 15. 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 Mortgagees from exercising any such right, power or option at any time or upon any subsequent default of the Mortgagors. All rights and remedies given or reserved to the Mortgagees 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 its other rights or remedies. 16. The Mortgagors specifically warrant that they are fully authorized to enter into this Mortgage, and that the acquiescence or approval of no other person is required for it to enter into same on the terms found herein. 17. The Mortgagors specifically warrant that none of the property subject to this mortgage is homestead property within the meaning of the Homestead Exemption Laws of the State of Wyoming. 18. All warranties, covenants, promises, undertakings, agreements, rights, powers, privileges, benefits, obligations and remedies imposed upon or granted or reserved unto the said parties by this instrument shall survive the execution and delivery hereof and shall respectively extend to and be binding upon the respective heirs, executors, administrators, successors and assigns of said parties. g. MORTGAGE Page 7 of 8 000048 IN WITNESS WHEREOF, Mortgagors have signed and sealed this mortgage this day of 4 .,ej /,S" 2010. STATE OF WYOMING COUNTY OF LINCOLN My commission expires: ss. Witness my hand and official seal. MORTGAGE Page 8 of 8 Steven L. Peternal Laurie R. Peternal This instrument was acknowledged before me on the leday of 1-- 1.42Ge4, 2010, by Steven L. Peternal and Laurie R. Peternal, husband and wife. Notar, Public