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HomeMy WebLinkAbout954090":EIVED 6/24/2010 at 10:13 AM RECEIVING 954090 BOOK: 749 PAGE: 550 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY MORTGAGE ASSUMPTION AGREEMENT THIS MORTGAGE ASSUMPTION AGREEMENT (hereinafter referred to as the "Agreement made and entered into as of this 8th day of June, 2010, by and between THE BANK OF STAR VALLEY, a Wyoming banking corporation, P.O. Box 8007, Afton, Wyoming 8311 0, (hereinafter referred to as the "Lender and SB STAR VALLEY, LLC, a Utah limited liability company, 985 Queens Drive, American Fork, Utah 84003 (hereinafter referred to as "Borrower with GLENN PAULO BANGERTER, 985 Queens Drive, American Fork, Utah 84003 and STEVEN CRAIG SMITH, 1800 North Broadway, Santa Ana, California 92706 as. Guarantors (hereinafter referred to as "Guarantors WITNESSETH: �iGtiSS© WHEREAS, Lender is the holder and owner of the following documents (hereinafter sometimes collectively referred to as the "Loan Documents 1. Promissory Note with Personal Guaranty dated January 6, 2009, in the original principal face amount of ONE MILLION THREE HUNDRED FIFTY -SEVEN THOUSAND NINE HUNDRED TWENTY -ONE AND 02/100 DOLLARS ($1,357,921.02) executed and delivered by CASTLE ROCK DODGE, CHRYSLER, JEEP, LLC, a Wyoming limited liability company, P.O. Box 77, Afton, Wyoming (hereinafter referred to as the "Original Borrower in favor of Lender (hereinafter referred to as the "Note personally guaranteed by TIMOTHY ALAN ALLRED, a married person, P.O. Box 1662, Thayne, Wyoming 83127 (hereinafter referred to as the "Original Guarantor and 2. Mortgage given by Original Borrower and Original Guarantor as "Mortgagor" to Lender as "Mortgagee" dated January 6, 2009, which Mortgage was recorded in the Public Records of Lincoln County, Wyoming on January 8, 2009 in Book 712 at Pages 580 through 588 as Receiving No. 944562 (hereinafter referred to as the "Mortgage and which Mortgage encumbers the real property as described therein; and WHEREAS, the Original Borrower is desirous of conveying the property encumbered by the Mortgage (hereinafter referred to as the "Property to Borrower; and WHEREAS, the Borrower and Guarantors desire to receive said Property and founally assume the Mortgage and perform all of the covenants and conditions contained in the Promissory Note, the Mortgage and the Personal Guaranty (hereinafter referred to as the "Loan Documents as partial consideration for the purchase of the Property and as consideration for the Lender's willingness to consent to the sale of the Property which is encumbered by the Loan Documents; and WHEREAS, the Mortgage expressly prohibits the conveyance of the Property without the express written consent of the Lender; and MORTGAGE ASSUMPTION AGREEMENT PAGE 1 OF 7 WHEREAS, the Lender is willing to give its consent to the transfer of the Property to the Borrower if the Borrower and Guarantors shall assume all of the obligations heretofore imposed by the Loan Documents upon the Original Borrower and the Original Guarantor. NOW, THEREFORE, for and in consideration of the sum of TEN DOLLARS ($10.00) and in consideration of the premises and of the mutual covenants contained herein, and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties hereto agree as follows: 1. ASSUMPTION. Borrower expressly assumes the Loan Documents and agrees to perform all covenants, conditions, duties and obligations contained therein and agrees to pay the Promissory Note and the obligations evidenced thereby in a prompt and timely manner in accordance with the terms thereof. 2. CONSENT TO CONVEYANCE. Lender hereby consents to the transfer of the Property to the Borrower and Guarantors, but the Lender expressly reserves the right to withhold its consent to any future sale or transfer of the Property, as provided for in the Mortgage. 3. WARRANTIES AND REPRESENTATIONS. Borrower and Guarantors affirm, warrant, represent and covenant that Borrower and Guarantors have no defenses nor rights of set off against Lender or against the payment, collection or enforcement of the indebtedness evidenced by the Promissory Note and secured by the Mortgage and owed to Lender. Borrower further warrants and represents as follows: a. Borrower has done no acts nor omitted to do any act which might prevent Lender from, or limit Lender in, acting upon or under any of the provisions herein, in the Loan Documents; b. Borrower is not prohibited under any other agreement with any other person or any judgment or decree, from the execution and delivery of this Agreement, the performance of each and every covenant hereunder or under the Loan Documents; c. No action has been brought or threatened which would in any way interfere with the right of Borrower to execute this Agreement and perform all of Borrower's obligations contained herein, in the Loan Document; d. All financial statements of Borrower and Guarantors are true and correct in all respects, fairly present the respective financial conditions of the subjects thereof, as of the respective dates thereof and no material adverse change has occurred that would affect Borrower's or Guarantors' ability to repay the indebtedness evidenced by the Promissory Note and secured by the Mortgage; e. Borrower is duly formed, validly existing and in good standing under the laws of the State of Utah and has full power and authority to consummate the transactions contemplated under this Agreement. MORTGAGE ASSUMPTION AGREEMENT PAGE 2 OF 7 OOH'55l 4. ACKNOWLEDGEMENTS. Borrower acknowledges that: a. The Loan Documents are in full force and effect; and U S b. The principal balance of the loan as represented by the aforesaid Promissory Note as of the date of this Agreement is ONE MILLION THREE HUNDRED FIFTY -SEVEN THOUSAND NINE HUNDRED TWENTY -ONE AND 02/100 DOLLARS ($1,357,921.02) and principal and interest are unconditionally due and owing to the Lender as provided in the Note. 5. COSTS. Borrower and /or Guarantors shall pay all costs of the assumption made hereby, to include without limitation, attorneys' fees and recording costs, as well as the cost of an endorsement to Lender's title insurance policy insuring the lien of the Mortgage after the recording of this Agreement. Such costs shall be due at closing hereunder and the payment thereof shall be a condition precedent to Lender's consent to the transfer of the Property to Borrower and Guarantors. In the event that it is determined that additional costs relating to this transaction are due, Borrower and/or Guarantors agree to pay such costs immediately upon demand. 6. ASSUMPTION FEE. In consideration of Lender's consenting to the conveyance of the Property to the Borrower and Guarantors, Lender is entitled to, and has earned, an assumption fee in the amount of $0.00 percent (0 of the original principal face amount of the indebtedness evidenced by the Promissory Note. Said fee shall be due and payable upon the execution and delivery of this Agreement. Borrower and Guarantors hereby agree and acknowledge that said fee is being charged solely for costs relating to the assumption of the Mortgage and not as interest for the forbearance or use of money. 7. EXTENSION OF TERM OF LOAN DOCUMENTS. If Borrower has timely made all of the payments as required in the Loan Documents and has furnished annual financial statements satisfactory to Lender, then upon written request to Lender not less than thirty (30) days prior to the date that payment is due and full under the Loan Documents, Lender will agree to extend the term of the Loan Documents for a period of two (2) years. Interest for the two (2) year extension period shall be fixed at Lender's then applicable prime rate, provided, however, that such rate shall not in any event exceed seven percent (7 8. RECORDATION. The recording of this Agreement in the Public Records of Lincoln County, Wyoming shall evidence the closing of the transaction described herein. 9. PARAGRAPH HEADINGS. The paragraph headings used herein are for convenience of reference only and shall not be used in the interpretation or construction hereof. 10. GOVERNING LAW. This Agreement shall be governed, interpreted and construed by, through and under the laws of the State of Wyoming. 11. TIME OF THE ESSENCE. Time is of the essence of this Agreement. MORTGAGE ASSUMPTION AGREEMENT PAGE 3 OF 7 12. ATTORNEYS' FEES. All costs incurred by Lender in enforcing this Agreement and in collection of sums due Lender from Borrower and Guarantors, to include, without limitation, reasonable attorneys' fees through all trials, appeals, and proceedings, to include, without limitation, any proceedings pursuant to the bankruptcy laws of the United States and any arbitration proceedings, shall be paid by Borrower and/or Guarantors, 13. BINDING EFFECT. This Agreement shall inure to the benefit of and be binding upon the parties hereto as well as their successors and assigns, heirs and personal representatives. 14. RELEASE OF ORIGINAL BORROWER AND ORIGINAL GUARANTOR. Lender hereby agrees that upon the recording of this Agreement in the Public Records of Lincoln County, Wyoming, as to Original Borrower and Original Guarantor, Lender shall be deemed to have received full payment required under the Loan Documents, Lender therefore releases Original Borrower and Original Guarantor from all obligations under the Loan Documents and this release shall be binding upon Lender's successors, legal representatives and assigns. Lender warrants that the referenced Loan Documents have not been assigned, ceded, transferred or sold to a third party and warrants Lender's authority as Noteholder and Mortgagee to issue this release. IN WITNESS WHE.REOF, the parties hereto have duly executed this Agreement as follows: AS TO LENDER, this t 1 day of June, 2010. BY: SETH JENKINS VICE PRESIDENT AS TO BORROWER, this day of June, 2010. SB STAR VALLEY, LLC, a Utah limited liability company BY: MORTGAGE ASSUMPTION AGREEMENT PAGE 4 OF 7 THE BANK OF STAR VALLEY, a Wyoming banking corporation ENN PAULO BA i ERTER MEMBER 12. ATTORNEYS' FEES. All costs incurred by Lender in enforcing this Agreement and in collection of sums due Lender from Borrower and Guarantors, to include, without limitation, reasonable attorneys' fees through all trials, appeals, and proceedings, to include, without limitation, any proceedings pursuant to the bankruptcy laws of the United States and any arbitration proceedings, shall be paid by Borrower and/or Guarantors. 13. BINDING EFFECT. This Agreement shall inure to the benefit of and be binding upon the parties hereto as well as their successors and assigns, heirs and personal representatives. 14. RELEASE OF ORIGINAL BORROWER AND ORIGINAL GUARANTOR. Lender hereby agrees that upon the recording of this Agreement in the Public Records of Lincoln County, Wyoming, as to Original Borrower and Original Guarantor, Lender shall be deemed to have received full payment required under the Loan Documents. Lender therefore releases Original Borrower and Original Guarantor from all obligations under the Loan Documents and this release shall be binding upon Lender's successors, legal representatives and assigns. Lender warrants that the referenced Loan Documents have not been assigned, ceded, transferred or sold to a third party and warrants Lender's authority as Noteholder and Mortgagee to issue this release. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as follows: AS TO LENDER, this day of June, 2010. BY: AS TO BORROWER, this day of June, 2010. BY: MORTGAGE ASSUMPTION AGREEMENT PAGE4OF7 THE BANK OF STAR VALLEY, a Wyoming banking corporation SETH JENKINS VICE PRESIDENT SB STAR VALLEY, LLC, a Utah limited liability company ENN PAULO BA ERTER MEMBER `02554 WITNESS my hand and official seal. BY: BY: My Commission expires: STEVEN CRAIG SMITH MEMBER AS TO ORIGINAL BORROWER, this day of June, 2010. CASTLE ROCK DODGE, CHRYSLER, JEEP, LLC, a Wyoming limited liability company TIMOTHY ALAN ALLRED MANAGER AS TO ORIGINAL GUARANTOR, this day of June, 2010. TIMOTHY ALAN ALLRED NOTARY PUBLIC MORTGAGE ASSUMPTION AGREEMENT PAGE 5 OF 7 t "C 555 STATE OF WYOMING SS. COUNTY OF LINCOLN ACKNOWLEDGED before me on this, the day of June, 2010, by Seth Jenkins, who acknowledged further that he signed the foregoing instrument as Vice President of The Bank of Star Valley, a Wyoming banking corporation, acting for said Company pursuant to authority provided to him by its Board of Directors. STATE OF WYOMING SS. COUNTY OF LINCOLN WITNESS my hand and official seal, MINDY LYMAN NOTARY PUBLIC 4' COUNTY OF STATE OF LINCOLN WYOMI MY COMMISSION E%PIRES FEBRUARY 1, 2011 BY: My Commission expires: g ST 1 VEN CRAIG SMITH MEMBER AS TO ORIGINAL BORROWER, this t Al day of Sune, 2010. CASTLE ROCK DODGE, CHRYSLER, JEEP, LLC, a Wyoming limited Liability company B� !iyie 4 TIMOTHY AN ALf R1 MANAGER AS TO ORIGINAL GUARANTOR, this 11 da of June, 2010. IMOT ALAN ALLRED ACKNOWLEDGED before me on this, the 1` day of June, 2010, by Seth Jenkins, who acknowledged further that he signed the foregoing instrument as Vice President of The Bank of Star Valley, a Wyoming banking corporation, acting for said Company pursuant to authority provided to him by its Board of Directors. MORTGAGE ASSUMPTION AGREEMENT PAGE 5 OE 7 L'3CG 556 STATE OF brA COUNTY OF U(A1A SS. ACKNOWLEDGED before me on this, the /O day of June, 2010, by Glenn Paulo Bangerter, who acknowledged further that he signed the foregoing instrument as a Member of SB Star Valley, LLC, a Utah limited liability company, and that said Company is managed by its Members. WITNESS my hand and official seal. My Commission expires: riO 21 "Z STATE OF bi TA i4 COUNTY OF (ATA SS. ACKNOWLEDGED before me on this, the /0 day of June, 2010, by Steven Craig Smith, who acknowledged further that he signed the foregoing instrument as a Member of SB Star Valley, LLC, a Utah limited liability company, and that said Company is managed by its Members. WITNESS my hand and official seal. My Commission expires: (0 x2011 ALI M. LUNDSKOG NOTARY MEW STATE of UTAH 4844 N. 300 W. SUITE 300 PROVO, UT 14804 COMM. EXP. 641 -2011 OTARY P i LIC I NOTARY UBLIC MORTGAGE ASSUMPTION AGREEMENT PAGE6OF7 3C a557 ALICE M. LUNDSKOG NOTARY PUBLIC STATE of UTAH 4844 N. 300 W. SUITE 300 PROVO, UT 84804 COMM. EXP. 6-21 -2011 STATE OF WYOMING SS. COUNTY OF LINCOLN ACKNOWLEDGED before me on this, the day of June, 2010, by Timothy Alan Allred, who acknowledged further that he signed the foregoing instrument as Manager of Castle Rock Dodge, Chrysler, Jeep, LLC, a. Wyoming limited liability company, acting for said Company pursuant to authority provided to him by its Board of Members. Allred. WITNESS my hand and official seal. My Commission expires: (0-V ZGCS WITNESS my hand and official seal. My Commission expires: 62 V 1-ZC \3 NOTARY PUBLIC STATE OF WYOMING SS. COUNTY OF LINCOLN ACKNOWLEDGED before me on this, the day of June, 2010, by Timothy Alan MORTGAGE ASSUMPTION AGREEMENT PAGE 7O:F7 SETH C. JENKINS COUNTY OF UNCOLN NOTARY PUBLIC STATE OF WYOMING MY COMMISSION EXPIRES JUNE 17 558 Lender: The Bank Of Star Valley P.O. Box 8007 Afton, WY 83110 Borrower: SB Star Valley, LLC 985 Queens Drive American Fork, UT 84003 EXTENSION AGREEMENT This Agreement Date: June 08, 2010 Definitions: As used in this agreement, the term I means Borrower(s) named above; You means the Lender named above A Original Obligation means my previous agreement to pay you money (referred to above by Loan Number and original date), and any related agreements such as a security agreement and /or mortgage. On June 08, 2010 you and 1 entered into an original obligation which is a Mortgage Assumption Agreement and personal guarantees by Glenn Paulo Bangerter and Steven Craig Smith on a Promissory Note dated January 06, 2009 secured by lst REM on raw ground consisting of tracts A,B,C,D,E,F,H and I, located on the west hills of Fairview, Wy 83119, Original principle amount of $1,357,921.02. The amount remaining due as of the date of the agreement is $1,357,921.02 principal plus 77,754.94 interest:.att l:Late Charges of.$50.00 for a total of 1,435,725.96. (Interest accrued through June 08, 2010 in the amount of •$77,754.94 t6 be pttki prior to extension. The late fee of $50.00 is herby waived.)The obligation is secured by the following: lst REM located at Tracts A,B,C,D,E,F,H, and I, West Hills of Fairview, WY 83119 in the amount of 1,357,921,02 recorded in Lincoln County on January 08, 2009 in book 712 at page 580 document 944562. For valuable consideration You and I agree to the following change in the obligation: See Additional Terms Below: Extension Agreement: The new payment schedule is modifies as follows: A quarterly payment of interest will be due September 15, 2010 and continue on the 15 of each quarter thereafter. A final payment will be due June 15, 2012. The maturity date is June 15, 2012 at which time all principal and interest will be due. You acknowledge that this deferral will result in you paying less interest. Interest Rate Change: The interest rate effective the date of this agreement is: 5.00% fixed. This Rate is the same as the rate previously in effect on this obligation. Additional Terms: Fees: For this extension, I agree to pay you the following non refundable fees: $0.00 This agreement does not in any way satisfy or cancel the original obligation. Except as specifically amended by this agreement, all other terms of the original obligation remain if effect. This means and includes, but is not limited to: 1: Property which secures the original obligation will continue to secure my total responsibility to pay you as amended by this agreement. 2: All parties who have a responsibility to pay you in any way the original obligation (including any co- makers, endorsers, and guarantors) remain responsible for the total amount I owe you as amended by this agreement. If you require the consent to this extension by any additional party, I agree to obtain such consent, and this extension agreement will not be effective if the consent is not obtained. 3: Any post maturity interest rate provided for in the original obligation (except as specifically contracted for here) shall now begin to apply after the last scheduled payment of the original obligation as amended by this agreement. 4: You will not be responsible to further extend the payments affected by this agreement or any other scheduled payments. All other scheduled payments not affected by this agreement shall remain due as previously scheduled. 5: All provisions for default, remedies, attorneys= fees (if any) etc. remain in effect. 6: My responsibility (if any) to provide insurance on the property which secures the original obligation (if any) shall remain in effect. However, the term of such insurance policy will not be extended to cover any additional term resulting from this agreement unless contracted for and any additional premium is paid. 7: The term of any Credit Life and/or Disability Insurance coverage's purchased in connection with the original obligation will not be extended for the additional term provided for in this agreement unless contracted for and any additional premium is paid. Signature(s) for Borrowers: By signing Below, I agree to the extension. I have Received copy of this agreement on today's Date. Steve raig Smith (Date) Member Loan Number: 124643 Original Note Date: January 06, 2009 Signature of Authorized Representative of Lender: The Bank of Star Val By Seth Jenkins Vice President y (Da e)