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HomeMy WebLinkAbout873544This MmIgage ' IF MO~TtIK~ SE Inc- RECEIVED RECEIVED BOOK ~gRPAGE__~ l~ `~,1NC ►l P! "-COUNTY CLERK GAGE 01 tilAY 29 P1 12: 19 a T M_ J E A N N V''"( N E R 11 4 E1r11~~iERr'R. VV 01,1ING THIS MORTGAGE, made this,?q4 day of May, 2001, between THE REAL ESTATE EXCHANGE, hereinafter referred to as the "Mortgagor," and GAYLON G. HEINER and KRISTI G. HEINER, of 3549 County Road 123, Bedford, WY 83112, hereinafter referred to as the "Mortgagee." The Mortgagor, to secure payment of the sum of FORTY-FIVE THOUSAND DOLLARS ($45,000.00), lawful money of the United States, together with interest thereon according to a promissory note of even date herewith, does hereby mortgage to the Mortgagee the following-described real property situate in Lincoln County, Wyoming: See attached Exhibit "A" Together with all buildings and improvements thereon, or which may hereafter be placed thereon; all fixtures now or hereafter attached to said premises; all minerals and mineral rights; 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 thereto; subject, however, to all covenants, restrictions, easements, reservations and conditions of record. TO HAVE AND TO HOLD the said real property, fixtures and improvements forever, the Mortgagor hereby relinquishing and waiving all rights under and by virtue of the homestead exemption laws of the State of Wyoming. Mortgagor covenants that at the signing and delivery of this Mortgage, said Mortgagor is lawfully possessed of and lawfully seized in fee simple of said real 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 free from all encumbrances. This Mortgage is not assumable by any other party unless agreed to, in writing, by the Mortgagee. However, this Mortgage is subject to the express condition that if the Mortgagor pays, or causes to be paid, to the Mortgagee the sum set forth above, together with interest thereon and such other sums as may be added thereto in accordance with the terms of the note and this Mortgage, at the rate of 6 % per annum from the date hereof until paid, according to the conditions of a certain promissory note dated contemporaneously herewith, the ultimate maturity date of which is January 15, 2002; which promissory note was executed and delivered by 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. 16 8. If the right of foreclosure accrues as a result of any default hereunder which is not remedied within the time provided herein, and insofar as it is consistent with any prior or senior lien or mortgage of the property, the 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 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 entitled to a Receiver for said 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 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 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. 9. Any notice required to be given to any person hereunder shall be deemed to have been given when sent by U.S. Certified Mail, postage prepaid with return receipt requested, and addressed as indicated above, or mailed to such other address as may be designated by either party from time to time in writing as provided herein. 10. 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; and a duly executed and delivered release of this Mortgage by any one or more of the Mortgagees shall be a valid and effective release as to all of said Mortgagees, and of said Mortgage. 11. 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 terms "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 said premises, or in any other manner now or hereafter provided by Wyoming statutes, including the power to sell. 12. This instrument and its enforcement shall be governed by the laws of the State of Wyoming, and any actions to interpret or enforce it shall be brought in the State of Wyoming. 13. It is recognized that The Real Estate Exchange has signed this instrument as a qualified intermediary in an exchange transaction pursuant to § 1031 of the Internal Revenue Code, in order to acquire the property purchased with the borrowed funds as "replacement property", and that said company does not itself agree to be personally liable for the payment of the purchase- r6neydel?tIrvcurred. Rather, the party for whom it is acting as an intermediary may guarantee the ,payment of and"pirformance under all loan agreements, notes and mortgages or other security , instruments executed by The Real Estate Exchange. Accordingly, notwithstanding anything 3 08 `:3544 3")4 Mortgagor and Mortgagee further covenant and agree 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, assessments and other charges levied or assessed against said property, and,if requested to do so,agrees to pay said sums to Mortgagee, either in a lump sum or in monthly or quarterly installments. 3. 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 the Mortgagee hereunder. Mortgagee may enter and inspect the property at reasonable times and after reasonable notice. Mortgagor shall not permit said property, or any part thereof, to be encumbered or subjected to any liens which may be or become superior to the lien of this mortgage, or permit the said property to be levied upon or attached in any legal or equitable proceeding, and shall not, except with the consent in writing of the Mortgagee, or as is otherwise provided and permitted in this Mortgage, remove or attempt to remove said improvements or fixtures, or any part thereof, from the premises on which the same are situated. 4. 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 and other hazards normally covered under an extended coverage hazard insurance policy or such other hazards as the Mortgagee may require, in a sum of not less than its full insurable value for the term of this Mortgage, and will pay when due all premiums on such insurance either directly or, if requested by Mortgagee, by making monthly payments to the Mortgagee of 1/12th of the annual premium. All insurance shall be carried in responsible insurance companies acceptable to Mortgagee and the policies and renewals thereof shall contain a "standard mortgage clause" and have attached thereto loss payable clauses in favor of the Mortgagee. The insurance proceeds, or any part thereof, may, at the option of the Mortgagee, be applied either to the reduction of the indebtedness hereby secured or paid to the Mortgagor. In the event the Mortgagee should acquire the mortgaged property as a result of purchase at foreclosure sale or otherwise, all rights in said insurance shall be deemeed assigned to Mortgagee. 5. If Mortgagor defaults in the payment of the taxes, assessments or other lawful charges or fails to keep the improvements on said premises insured as herein provided, the Mortgagee may, without notice or demand, pay the same or effect such insurance, and if the Mortgagor fails to keep said 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 reasonable attorneys' fees, 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 said property and be secured by this Mortgage. 6. If the Mortgagor defaults in the payment of the indebtedness hereby secured, or of any part or installment of principal or interest, and fails to cure such default within the grace period provided for in the promissory note, if any, or if the Mortgagor removes or attempts to remove any of said improvements or fixtures contrary to the provisions of this Mortgage, or if the Mortgagor sells or assigns any interest of Mortgagor in the real property referred to herein, without written permission of the Mortgagee, 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 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 agrees to pay all costs of enforcement or foreclosure, including reasonable attorneys' fees. 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 right to foreclose in case of further default or defaults. The net proceeds from such sale shall be applied to the payment of (1st) the costs and expenses of the foreclosure and sale, including reasonable attorneys' fees, and all moneys expended or advanced by the Mortgagee pursuant to the provisions of this Mortgage; (2nd) all unpaid taxes, assessments, claims and liens on said property, which are superior to the lien hereof, (3rd) the balance due Mortgagee on account of principal, interest and late charges or penalty interest on the indebtedness hereby secured; and the surplus, if any, shall be paid to the Mortgagor. 7. If the property described herein is sold under foreclosure and the proceeds are insufficient to pay the total indebtedness hereby secured, the Mortgagors executing the note or notes for which this Mortgage is security shall not be personally bound to pay the unpaid balance and all other sums due hereunder, as this shall be a nonrecourse mortgage. Notwithstanding anything herein contained or contained within this mortgage, neither the maker of the note nor the Mortgagee or any other secured party under this mortgage shall have any cause of action against the maker of the note or the Mortgagor for default or breach under the note or this Mortgage and the Mortgagor shall be limited to its rights against the real property or other collateral subject hereto. Without limitation on the generality of the foregoing, neither the undersigned Mortgagor nor Any successor or assign of the undersigned shall have any personal liability under the note or under this Mortgage and the Mortgagee and each successor and assign of the Mortgagee has waived and hereby waives all claim or right for any deficiency under the note or, upon foreclosure or sale or exercise of rights, under the Mortgage. In case of default in payment of the note or of any installment hereof, the sole remedy of the Mortgagee shall be foreclosure of this Mortgage in accordance with its terms and conditions. 0873544 306 herein contained to the contrary, neither the holder of the Note nor the Mortgagee or any other secured party shall have any cause of action against The Real Estate Exchange, as maker of the Note or as Mortgagor, for nonpayment, default or breach under the Note or Mortgage and the holder and Mortgagee shall be limited to its rights against any guarantor of the Note or Mortgage and to rights in the real property or other collateral subject to the Mortgage. Without limitation on the generality of the foregoing, The Real Estate Exchange shall not have any personal liability under the Note or Mortgage and the holder and Mortgagee and its successors and assigns waives all claim or right against The Real Estate Exchange for payment of the Note or, upon foreclosure or sale or exercise of rights under the Mortgage, for any deficiency thereunder . In case of default in payment of the Note or of any installment hereof, the sole remedy of the holder and Mortgagee, as to The Real Estate Exchange, shall be foreclosure of the Mortgage in accordance with its terms; however the holder and Mortgagee may pursue any and all remedies provided for in the Note or Mortgage, or otherwise provided by law, against any guarantor of the Note or Mortgage, in accordance with the terms of such instrument. IN WITNESS WHEREOF, this Mortgage has been executed by the Mortgagor the date first above written. THE RVAL ESTATE EXCHANGE STATE OF WYOMING ) ) ss. COUNTY OF TETON ) By: On this J Aay of 2001, before me personally appeared Paul 0. Vaughn, President of The Real Estate Ea change, who acknowledged that he executed the foregoing Mortgage, for and on behalf of said corporation Given under my hand and seal the date first above written. (Seal) Notary Pu lic My commission expires: } U L 1 Fee Simple Parcel 1: All of the S1/2NW1/4NW1/4 of Section 11, T33N, R118W, Lincoln County, Wyoming, being part of that tract of record in the Office of the Clerk of Lincoln County in Book 276 of Photostatic Records on Page 69; The BASE BEARING for this survey is the west line of the NW1/4 of Section 11, T33N, R118W, being N00°-091-37"E; Easement Interest Parcel 2: Right of ingress and egress and utilities over, under and across Noble Lane as shown on that plat of record in said Office as Plat No. 392 titled, "FINAL PLAT PINE VIEW ESTATES WITHIN THE SE1/4SE1/4 SECTION 3 T33N R118W LINCOLN COUNTY, WYOMING", dated 21 February 2000 and revised 6 June 2000; AND TOGETHER with a right of ingress and egress and utilities over, under and across that part of the south thirty (30) feet of the NE1/4NE1/4 of Section 10, T33N, R118W, lying and being situate easterly of said Noble Lane.