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HomeMy WebLinkAbout953973MORTGAGE 114 AFTON AIRPARK LLC, a Wyoming limited liability company, Mortgagor, hereby grants, bargains, sells, conveys, confirms, mortgages and warrants, with power of sale, to G.G., LLC, a Wyoming limited liability company, Mortgagee, its successors and assigns, the real estate situate in Lincoln County, Wyoming described as: Lots 1, 7, 9, 10, 12, 13, 17, 18, 22, 23, 24, 25, 26, 27, 32, 34, 35 and 38 of Afton Airpark Addition to the Town of Afton, Lincoln County, Wyoming as described on the official plat No. 167 -C filed on August 1, 2005 as Instrument No. 910442 of the records of the Lincoln County Clerk. Together with all and singular the fixtures, apparatus, equipment, tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, including without limitation all buildings, structures, improvements and affixed equipment, oil, gas, electric and other heating, lighting, plumbing, air conditioning, water and cooling apparatus and systems, oil burners, stokers, thermostats, regulators, tanks, heaters, water softeners, filters, motors, pumps, radiators, incinerators, grates, Venetian blinds, window shades, mirrors, mantels, hardware, globes, awnings, storm doors, storm windows, screen doors, screen windows, arbors, rock gardens, fences, towers, antennae, gates, trees, and shrubs, now or hereafter placed upon said land, all of which things shall be deemed to be parts of the realty regardless of the manner in which they may be affixed to or upon the same or any part thereof, 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 Mortgagee, its successors and assigns forever. The Mortgagor hereby covenants with the Mortgagee that the Mortgagor is 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; that the Mortgagee, its successors and assigns, shall quietly enjoy and possess said premises and the said Mortgagor will warrant and defend the title to the same against all lawful claims whatsoever. THE MORTGAGOR HEREBY COVENANTS AND AGREES WITH THE MORTGAGEE as follows: 1. This Mortgage is given to secure payment and the Mortgagor promises to pay to Mortgagee the sum of $704,806.00, with interest, evidenced by a Promissory Note (hereinafter the "Note dated June 9, 2010, and incorporated herein by reference, and all other amounts due thereunder and all extensions and renewals thereof, and any other indebtedness which may arise or be created between the Mortgagor and Mortgagee, when and as the same shall become due and payable. Each such payment shall be applied first to the payment of interest and any balance remaining after the payment of interest shall be applied to the reduction of the unpaid principal balance. MORTGAGE Page 1 of 8 RECEIVED 6/15/2010 at 9:10 AM RECEIVING 953973 BOOK: 749 PAGE: 114 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY 7V7 r' 115 2. Time is of the essence and if any amount which this Mortgage secures shall not have been paid when due, 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 Mortgagee 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. 3. Mortgagor 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 this Mortgage shall become due and payable in full forthwith at the option of the Mortgagee upon the occurrence of any of the following events: a. Mortgagor fails to make any payment when due. b. Mortgagor breaks any promise Mortgagor has made to Mortgagee, or Mortgagor fails to perform promptly at the time and strictly in the manner provided in the Note, or this Mortgage or in any other agreement Mortgagor has with Mortgagee. c. Any representation or statement made or furnished to Mortgagee by Mortgagor or on Mortgagor' s behalf is false or misleading in any material respect. d. Mortgagor, or any member of Mortgagor (all such references to Mortgagor hereafter to include reference to each member), dies or Mortgagor becomes insolvent; a receiver is appointed for any part of Mortgagor's property; Mortgagor makes an assignment for the benefit of creditors; or any proceeding is commenced either by Mortgagor or against Mortgagor under any bankruptcy or insolvency laws. e. Any creditor tries to take any of Mortgagor's property on or in which Mortgagee has a lien or security interest. f. Mortgagor ceases to be in good standing with the Secretary of State of Wyoming. g. Mortgagor conveys, 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 Mortgagee herein. h. Mortgagee in good faith deems itself insecure. MORTGAGE Page 2 of 8 i. Each of the above events shall constitute a default if occurring with respect to any individual Mortgagor or any member of Mortgagor. The acceptance of any payment on the Promissory Note by the Mortgagee 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. 4. 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 Mortgagee in writing, Mortgagor represents and warrants that: (a) During the period of Mortgagor's ownership of Mortgagor's 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) Mortgagor has 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 Mortgagor 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. Mortgagor authorized Mortgagee and its agents to enter upon the properties to make such inspections and tests as Mortgagee may deem appropriate to determine compliance of the properties with this section of the Agreement. Any inspections or tests made by Mortgagee shall be for Mortgagee's purposes only and shall not be construed to create any responsibility or liability of the part of Mortgagee to Mortgagor or to any other person. The representations and warranties contained herein are based on Mortgagor's due diligence in investigating the properties for hazardous waste. Mortgagor hereby (a) releases and waives any future claims against Mortgagee to indemnity or contribution in the event Mortgagor becomes liable for cleanup or other costs under any such laws and (b) agrees to indemnify and to hold harmless Mortgagee against any and all claims, losses, liabilities, damages, penalties, and expenses which Mortgagee 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 occurring prior to Mortgagor's ownership or interest in the properties, whether or not the same was or should have been known to Mortgagor. 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 Mortgagee's acquisition of any interest in any of the properties, whether by foreclosure or otherwise. MORTGAGE Page 3 of 8 ,fi :116 MORTGAGE Page 4 of 8 F� 11 7 5. Mortgagor shall pay or cause to be paid all taxes and assessments levied or assessed against the premises, and shall comply with all recordation and other laws affecting the security of this Mortgage at the expense of Mortgagor. Mortgagor agrees to keep all buildings and other fixtures now or hereafter on the premises insured by companies satisfactory to the Mortgagee against loss by fire, smoke, water, windstorm and other hazards (including extended coverage), including war damages when requested in writing by the Mortgagee, in such amounts and form as the Mortgagee may require; to deliver upon request to the Mortgagee the policies for insurance, with mortgage clauses attached thereto, in favor of and in form satisfactory to the Mortgagee or its assigns; to deliver to the Mortgagee 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 Mortgagee, hereby authorizing and empowering the Mortgagee to make proof of loss if the Mortgagor 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 Mortgagee the proceeds of such insurance or any part thereof which at the option of the Mortgagee shall be applied either in reduction of the indebtedness secured hereby or to the repair and restoration of the property damaged. 6. Mortgagor will keep the premises free and clear of all other liens and encumbrances which may be or become superior to the lien created hereby. 7. Mortgagor will not commit or permit waste on the premises, nor demolish nor remove therefrom any building without the written consent of the Mortgagee; and will keep and maintain the premises in good repair. 8. Mortgagor will pay all expenses and attorneys' fees incurred by the Mortgagee, its 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. 9. Mortgagor will comply promptly, at the expense of the Mortgagor, with all laws, statutes, ordinances and regulations affecting the premises in any manner whatsoever. 10. Mortgagor will pay to or cause to be paid directly to the Mortgagee, 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. 11. In case of the failure of the Mortgagor to do so, the Mortgagee may make any payment or perform any covenant herein to be made or performed by the Mortgagor, and any payment so made or expense incurred in connection therewith by the Mortgagee shall bear interest at the rate of eight percent (8 per annum, and shall be immediately repayable by the Mortgagor, 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. 12. In case an event of default shall occur in making payments or performing any other covenants or agreement required of Mortgagor as provided in the Note or this mortgage, the wr10 118 Mortgagor hereby authorizes and empowers the Mortgagee, its 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 Mortgagee (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 Mortgagor agrees to pay. In case of the foreclosure of this Mortgage, the Mortgagor hereby authorizes and empowers the Mortgagee, its 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 eight percent (8 per annum from the date said amount is paid. In the event of a foreclosure, Mortgagor hereby authorizes and empowers Mortgagee, its 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 Mortgagor, binds itself to pay the unpaid balance, and the Mortgagee will be entitled to a deficiency judgment. 13. 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 Mortgagee, or the purchaser at such sale, shall, at once and without notice to the Mortgagor 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 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. 14. In consideration of the sum of ten dollars ($10) and other valuable consideration, the receipt whereof hereby is acknowledged, the Mortgagor hereby assigns, transfers and sets over to the Mortgagee, its successors and assigns, the rent, profits and income from the mortgaged property with full and complete authority and right in the Mortgagee 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. Mortgagor hereby assigns to Mortgagee 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. Mortgagee is hereby authorized to take charge of the rental of the above described property and is hereby MORTGAGE Page 5 of 8 ";w 1.19 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 is 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. 15. Without limiting the generality of the foregoing, in case an event of default shall occur hereunder, the Mortgagor further agrees as follows: a. Notice to Tenants. Mortgagee 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 Mortgagee or Mortgagee's agent. b. Enter the Property. Mortgagee 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. Mortgagee 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 Mortgagor on the Property. d. Compliance with Laws. Mortgagee 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. Mortgagee may rent or lease the whole or any part of the Property for such term or terms and on such conditions as Mortgagee may deem appropriate. f. Employ Agents. Mortgagee may engage such agent or agents as Mortgagee may deem appropriate, either in Mortgagee's or Mortgagor's name, to rent and manage the Property, including the collection and application of rents. Other acts. Mortgagee may do all such other things and acts with respect to the Property as Mortgagee may deem appropriate and may act exclusively and solely in the place and stead of Mortgagor and to have all of the powers of Mortgagor for the purposes stated above. g. MORTGAGE Page 6 of 8 16. Failure to exercise any right, power or options herein granted to the Mortgagee, howsoever often shall not constitute a waiver thereof and shall not estop the Mortgagee from exercising any such right, power or option at any time or upon any subsequent default of the Mortgagor. All rights and remedies given or reserved to the Mortgagee 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. 17. The Mortgagor specifically warrants that it is 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. 18. The Mortgagor specifically warrants 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. 19. 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. 2010. h. No Requirement to Act. Mortgagee shall not be required to do any of the foregoing acts or things, and the fact the Mortgagee shall have performed one or more of the foregoing acts or things shall not require Mortgagee to do any other specific act or thing. IN WITNESS WHEREOF, Mortgagor has signed and sealed this mortgage as of June 9, AFTON AIRPARK LLC By: MORTGAGE Page 7 of 8 Garry B. E ngford, Manage 120 STATE OF WYOMING COUNTY OF UINTA My commission expires: ss. On this 14th day of June, 2010, the foregoing instrument was acknowledged before me by Garry B. Ellingford, who acknowledged that he was the Manager of AFTON AIRPARK LLC, and that said instrument was signed and that the same is the free act and deed of said company. Witness my hand and official seal. c\ +rri' +rrl Notary Public r ma ...MV Commission Expires 5uty02 2011: 4', `'i- PuatA Q 6'∎•. 4 Ca p'.. 44, +Sd� MORTGAGE Page 8 of 8 121