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HomeMy WebLinkAbout955063MORTGAGE RECEIVED 8/23/2010 at 3:20 PM RECEIVING 955063 BOOK: 752 PAGE: 449 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY -kh v 6U5� THIS MORTGAGE is made on the 1.t- day day of r, 2010, by STAR VALLEY UNITED CHURCH, INC., a Wyoming nonprofit corporation, P.O. Box 1399, Thayne, Wyoming 83127, hereinafter referenced as "Mortgagor Mortgagor hereby grants, bargains, mortgages and warrants to BRUCE L. DANA and BRENDA G. DANA, TRUSTEES of The Bruce and Brenda Dana Family Trust dated February 9, 1999, 173 Willow Creek Canyon, Bedford, Wyoming 83112, hereinafter referenced as "Mortgagees real estate in Lincoln County, Wyoming described as: A portion of the SE1 /4SW1 /4 of Section 14, T34N, R119W of the 6th P.M., Lincoln County, Wyoming, being the same land as that described in the Deed recorded in Book 253PR on page 521 of the Official Records of Lincoln County Clerk, being more particularly described as follows: Beginning at a point 23.20 feet S 40 °57'56" E, from a highway monument marking station TS1451 +56.3, said monument being 1027.14 feet, N 43 °51'48" W from the S1 /4 corner of said Section 14, of the east boundary of Highway 89; thence N 63 °52'20" E, 373.45 feet, more or less, to the East line of the Carol Walton property, evidenced by deed recorded November 20, 1980 in Book 170PR on page 546 of the records of the Lincoln County Clerk; thence S 12 °36'43" W, along last said East line, 448.63 feet to the east line of Highway 89; thence N 40 °57'56" W, along last said Easterly boundary, 362.00 feet to the point of beginning. Said property is hereinafter referred to as the "Property," together with (i) all and singular the buildings, additions, alterations, improvements, and appurtenances thereunto belonging or in anywise appertaining, and all property of like kind and character now or hereafter acquired, installed in, affixed to, constructed on, commingled with or substituted for any of the above; (ii) the proceeds of any or all of the above; (iii) all easements and rights -of -way now and at any time hereafter used in connection with any of the Property, or as a means of ingress to or egress from t said Property or for utilities to said Property; (iv) all interests of Mortgagor in and to any streets, ways, alleys and/or strips of land adjoining said Property or any part thereof; and (v) all rights, estates, powers and privileges appurtenant or incident to the foregoing. To have and to hold the same to the Mortgagee, and to Mortgagee's successors and assigns forever. MORTGAGOR HEREBY REPRESENTS, WARRANTS, COVENANTS, AND AGREES WITH MORTGAGEE AS FOLLOWS: I. REPRESENTATIONS AND WARRANTIES A. INDEBTEDNESS. This Mortgage is given to secure payment and the Mortgagor's promise to pay to the Mortgagee Four Hundred Ten Thousand Dollars ($410,000.00) with P�� e00450 interest, evidenced by a Promissory Note executed on the day of S 2010, hereinafter referenced as the "Promissory Note and all extensions and renewals thereof 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. B. FINANCIAL MATTERS. Mortgagor is solvent, is not bankrupt, and has no outstanding liens, suits, garnishments, bankruptcies, or court actions which could render Mortgagor insolvent or bankrupt. All reports, statements and other data furnished by Mortgagor to Mortgagee in connection with the loan evidenced by the Promissory Note executed herewith are true and correct in all material respects and do not omit to state any fact or circumstance necessary to make the statements contained therein not misleading. No material adverse change has occurred since the dates of such reports, statements and other data in the financial condition of Mortgagor. C. TITLE AND AUTHORITY. Mortgagor is the lawful owner of good and marketable title to the Property and has good right and authority to grant, bargain, mortgage and warrant the same. D. ENFORCEABILITY. The Promissory Note, this Mortgage and all other related instruments and documents constitute the legal, valid and binding obligations of Mortgagor enforceable in accordance with their terms. The execution and delivery of, and performance under, the Promissory Note, this Mortgage and all other related instruments and documents are within Mortgagor's powers. E. NO DEFAULT OR VIOLATION. The execution, delivery, and performance of this Mortgage, Promissory Note, and all other related instruments or documents do not contravene, result in a breach of, or constitute a default under any mortgage, promissory note, loan agreement or any other contract or agreement to which Mortgagor is a party or by which Mortgagor or any of its properties may be bound or affected and do not violate or contravene any law, order, decree, rule or regulation to which Mortgagor is subject. F. ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES. The use which Mortgagor makes and intends to make of the Property will not result in the disposal or other release of any hazardous substance or solid waste on or to the Property. G. WAIVER OF HOMESTEAD. Mortgagor hereby waives his rights to claim that any portion of the Property is subject to the Homestead Exemption Laws of the State of Wyoming. II. COVENANTS A. TAXES AND ASSESSMENTS. Mortgagor shall pay or cause to be paid all taxes and assessments which may be levied or assessed against the Property and shall comply with all recordation and other laws affecting the security of this Mortgage at the expense of Mortgagor. B. INSURANCE. Mortgagor agrees to acquire and maintain (and to provide Mortgagee with evidence of the acquisition and maintenance) property and casualty insurance on the MORTGAGE STAR VALLEY UNITED CHURCH, INC. DANA, TRUSTEES PAGE 2 OF 9 cv. MORTGAGE STAR VALLEY UNITED CHURCH, INC. DANA, TRUSTEES PAGE 3 OF 9 :z45i Property and its improvements in an amount not less than the balance due on the Promissory Note. Mortgagor shall deliver a copy of the acquired policy of insurance to the Mortgagee. Mortgagee shall be listed as an additional loss payee under the insurance policy. The policy must obligate the insurer to give thirty (30) days' notice to the Mortgagee before canceling, altering or amending the policy for any reason. C. LIENS AND ENCUMBRANCES. Mortgagor will keep the Property free and clear of all other hens and encumbrances which may be or become superior to the lien created hereby. D. WASTE. Mortgagor will not commit waste or permit waste on the Property. Mortgagor agrees to keep and maintain the Property in good repair and agrees not to demolish or remove any building from the Property without the written consent of the Mortgagee. E. LAWS. Mortgagor agrees to comply promptly, at the expense of Mortgagor, with all laws, statutes, ordinances and regulations affecting the Property in any manner whatsoever. F. FEES. Mortgagor agrees to pay all expenses and attorney's 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 Mortgage Note or for the preservation of the Property. G. CONDEMNATION. 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 Property. H. DEBTS FOR CONSTRUCTION. Mortgagor will promptly pay all debts and liabilities of any character, including all debts and liabilities, for material and equipment and all debts and charges for utilities servicing the Property incurred in the construction, maintenance, operation and development of the Property. I. INDEMNIFICATION. Mortgagor agrees to indemnify and hold the Mortgagee harmless from and against, and to reimburse the Mortgagee with respect to, any and all claims, demands, losses, damages (including consequential damages), liabilities, causes of action, judgments, penalties, costs and expenses (including attorneys fees and court costs) of any and every kind or character, known or unknown, fixed or contingent, imposed on, asserted against or incurred by the Mortgagee at any time and from time to time by reason of, in connection with or arising out of (a) the breach of any representation or warranty of Mortgagor as set forth herein; (b) the failure of Mortgagor to perform any obligation herein required to be performed by Mortgagor; (c) any violation of any environmental law; (d) the removal of hazardous substances or solid wastes from the Property (or if removal is prohibited by law, the taking of whatever action is required by law); (e) any act resulting from or in connection with the ownership, construction, occupancy, operation, use and /or maintenance of the Property, regardless of whether the act, omission, event or circumstance constituted a violation of any environmental law at the time of its existence or occurrence, and (f) any and all claims or proceedings (whether brought by private party or governmental agency) for bodily injury, property damage, abatement or remediation, environmental damage or impairment or any other injury or damage resulting from or relating to any hazardous substance or solid waste located upon or migrating into, from or through the Property (whether or not any or all of the foregoing was caused by Mortgagor or a prior owner of the Property or any third party and whether or not the alleged liability is attributable to the handling, storage, generation, transportation or disposal of such substance or waste or the mere presence of such substance or waste on the Property). III. REMEDIES UPON DEFAULT A. DEFAULT. The term "event of default" as used in this Mortgage shall mean the occurrence of any of the following events: (a) the failure of Mortgagor to deliver payment of any installment of principal or interest due or any other amount required to be paid under the Promissory Note, or this Mortgage within ten (10) days after receipt by Mortgagor of written notice and demand for payment; or (b) the failure of Mortgagor timely and properly to observe, keep or perform any covenant, agreement, warranty or condition contained herein or in the Promissory Note if such failure continues for ten (10) days after receipt by Mortgagor of written notice and demand for the performance of such covenant, agreement, warranty or condition; or (c) any representation contained herein or in any other related document or otherwise made by Mortgagor or any other person or entity to the Mortgagee in connection with the loan evidenced by the Promissory Note is false or misleading in any material respect; or (d) Mortgagor becomes insolvent, or makes a transfer in fraud of creditors, or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts as they become due; or (e) Mortgagor is generally not paying its debts as such debts become due; or (f) a receiver, trustee or custodian is appointed for, or takes possession of, all or substantially all of the assets of Mortgagor or any of the Property, either in a proceeding brought by Mortgagor or in a proceeding brought against Mortgagor and such appointment is not discharged or such possession is not terminated within sixty (60) days after the effective date thereof or Mortgagor consents to or acquiesces in such appointment or possession; or (g) Mortgagor files a petition for relief under the Federal Bankruptcy Code or any other present or future federal or state insolvency, bankruptcy or similar law (all of the foregoing hereinafter collectively called "applicable Bankruptcy Law or an involuntary petition for relief is filed against Mortgagor under any applicable Bankruptcy Law and such petition is not dismissed within sixty (60) days after the filing thereof, or an order for relief naming Mortgagor is entered under any applicable Bankruptcy Law, or MORTGAGE STAR VALLEY UNITED CHURCH, INC. DANA, TRUSTEES PAGE 4 OF 9 EGG_ <:>e 00 453 any composition, rearrangement, extension, reorganization or other relief of debtors now or hereafter existing is requested or consented to by Mortgagor; or (h) the Property or any part thereof is taken on execution or other process of law in any action against Mortgagor; or (i) Mortgagor fails to pay within thirty (30) days any final money judgment against Mortgagor; or (j) Mortgagor abandons all or a portion of the Property; or (k) the holder of any lien or security interest on the Property (without hereby implying the consent of the Mortgagee to the existence or creation of any such lien or security interest) declares a default thereunder or institutes foreclosure or other proceedings for the enforcement of its remedies thereunder; or (1) so much of the Property is taken in condemnation, or sold in lieu of condemnation, or the Property is so diminished in value due to any injury or damages to the Property, that the remainder thereof cannot, in the judgment of the Mortgagee, continue to be operated profitably for the purpose for which it was being used immediately prior to such taking, sale or diminution; or (m) Mortgagor dissolves, liquidates, merges or consolidates or any interest in Mortgagor is sold, assigned, transferred, mortgaged, pledged, encumbered, or otherwise disposed of, voluntarily or involuntarily, without the prior written consent of the Mortgagee. B. MORTGAGEE'S REMEDIES. In case an event of default shall occur as described in this Mortgage or in the Promissory Note, the Mortgagor hereby authorizes and empowers the Mortgagee, and Mortgagee's 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 moneys arising from such sale to retain all sums secured hereby with interest and all legal costs and charges of such foreclosure and actual reasonable attorneys' 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 agree to pay. In case of the foreclosure of this Mortgage, the Mortgagor hereby authorizes and empowers the Mortgagee, Mortgagee's successors and assigns, to effect insurance upon any buildings and fixtures for a period covering the time for redemption for the sale of said Property under such foreclosure, and to pay the premium therefor and the amount so paid shall be impressed as an additional lien upon said Property and shall be secured by and be collectible as a part of this Mortgage and bear interest at the rate specified in the Promissory Note which is identified as the unpaid balance upon the purchase by Mortgagor of the Property secured hereby for Mortgagee, from the date said amount is paid. In the event of a foreclosure, Mortgagor hereby authorizes and empowers Mortgagee, Mortgagee's successors and assigns, to bring an action against any person who claims an adverse estate or interest therein for the purpose of MORTGAGE STAR VALLEY UNITED CHURCH, INC. DANA, TRUSTEES PAGE 5 OF 9 MORTGAGE STAR VALLEY UNITED CHURCH, INC. DANA, TRUSTEES PAGE 6 OF 9 00F, 454 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 the Property and shall be secured by and collectible as a part of this Mortgage. In case the proceeds from the foreclosure sale are insufficient to pay the total indebtedness secured hereby, the Mortgagor agrees to be bound to pay the unpaid balance, and the Mortgagee will be entitled to a deficiency judgment. C. RECEIVER. Upon commencement of any foreclosure, or at any time thereafter, and prior to 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, upon compliance with all Wyoming laws governing receiverships, appoint a receiver for said Property to take possession thereof, to collect rents, issues and profits of said Property 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 Property 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 Property 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 and be subject to all requirements imposed by law. D. ACCELERATION. Upon the occurrence of a default, the Mortgagee shall have the option of declaring all secured indebtedness in its entirety to be immediately due and payable, and the liens and security interests evidenced hereby shall be subject to foreclosure in any manner provided for herein or provided for by law as the Mortgagee may elect. E. PROCEEDS OF SALE. The proceeds of any sale shall be applied: FIRST, to the payment of all necessary costs and expenses incident to such foreclosure sale, including but not limited to all court costs and attorneys' fees incurred by Mortgagor; SECOND, to the payment in full of the balance of the Promissory Note (including specifically without limitation the principal, interest and attorneys' fees due and unpaid on the Note and the amounts due and unpaid and owed to the Mortgagee under this Mortgage) in such order as the Mortgagee may elect; and THIRD, the remainder, if any, shall be paid to Mortgagor or to such other party or parties legally entitled to such proceeds. F. NO WAIVER. 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 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 00, 455 such rights or remedies shall not exclude or prevent the exercise of Mortgagee's other rights or remedies. G. MORTGAGEE AUTHORIZED TO MAKE PAYMENTS. If Mortgagor defaults in the payment of the taxes, assessments or other lawful charges, including any construction loan payments or fails to keep the improvements on said premises insured as herein provided, Mortgagee may, without notice or demand, pay the same, and if Mortgagor fails to keep said property in good repair, Mortgagee may make such repairs as may be necessary to protect the property, all at the expense of Mortgagor. Mortgagor covenants and agrees that all such sums of money so expended, together with all costs of enforcement or foreclosure, and a reasonable attorney fee, shall be added to the debt hereby secured, and agrees to repay the same and all expenses so incurred by 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. IV. MISCELLANEOUS MORTGAGE STAR VALLEY UNITED CHURCH, INC. DANA, TRUSTEES PAGE 7 OF 9 A. BALANCE DUE ON SALE. If all or any part of the Property or an interest therein is sold or transferred by Mortgagor without Mortgagee's prior written consent, excluding (a) the creation of a lien or encumbrance subordinate to this Mortgage, or (b) a transfer by devise or descent, Mortgagee may, at Mortgagee's option, declare all the sums secured by this Mortgage to be immediately due and payable. If Mortgagee exercises such option to accelerate, Mortgagee shall mail Mortgagor notice of acceleration in accordance with this paragraph. Such notice shall provide a period of not less than ten (10) days from the date the notice is mailed within which Mortgagor may pay the sums declared due. If Mortgagor fails to pay such sums prior to the expiration of such period, Mortgagee may, without further notice or demand on Mortgagor, consider that an event of default has occurred, and may invoke any remedies permitted in this Mortgage or under Wyoming law. B. NEGATION OF PARTNERSHIP. Nothing contained in the Mortgage Note, this Mortgage, or any other agreement between Mortgagor and Mortgagee is intended to create any partnership, joint venture or association between Mortgagor and Mortgagee, or in any way make the Mortgagee a co- principal with Mortgagee with reference to the Property, and any inferences to the contrary are hereby expressly negated. C. TIME OF ESSENCE. Time is of the essence of this Mortgage, the Promissory Note and any and all other related instruments and documents. D. WYOMING LAW. This is a Wyoming Mortgage, made and executed in that State, and is to be governed and construed according to its laws and shall continue to be so, even though the Mortgagee or Mortgagor may at some time become domiciled elsewhere within the United States or abroad. E. SURVIVAL OF WARRANTIES, COVENANTS, AND PROMISES. All warranties, covenants, promises, undertakings, agreements, rights, powers, privileges, benefits, obligations and remedies imposed upon or granted or reserved unto the parties to this Mortgage shall survive the execution and delivery of this Mortgage, the Promissory Note, and the related documents and shall respectively extend to and be binding upon successors and assigns of said parties. F. ENTIRE AGREEMENT. The Promissory Note, Mortgage, and other written documents, signed by both Mortgagee and Mortgagor, constitute the entire understanding and agreement between Mortgagor and Mortgagee with respect the transactions arising in connection with the indebtedness secured hereby and supersede all prior or oral understandings and agreement between Mortgagor and Mortgagee with respect thereto. Mortgagor hereby acknowledges that, except as incorporated in writing in such Promissory Note, Mortgage, and written agreements, there are not, and were not, and no persons are or were authorized by the Mortgagee to make, any representations, understandings, stipulations, agreements or promises, oral or written, with respect to the transaction which is the subject of this Mortgage. G. INSPECTION. Mortgagee may make or cause to be made reasonable entries upon and inspections of the property, provided that Mortgagee shall give Mortgagor notice prior to any such inspection specifying reasonable cause therefore related to Mortgagee's interest in the property. H. STATEMENT. Mortgagee shall, within ten (10) days upon a request made in person, or within thirty (30) days upon request by mail, furnish a written and duly acknowledged statement of the amount due on this Mortgage and whether any offsets or defenses exist against the mortgage debt. I. NOTICES. Any notices, demands, or requests pursuant to this Mortgage shall be in writing and may be served either in person or by certified mail, return receipt requested. Notice shall be deemed given when mailed and shall be addressed as follows or at such other address as either party may from time to time designate in writing: Mortgagor: Star Valley United Church, Inc. P.O. Box 1399, Thayne, Wyoming 83127 MORTGAGE STAR VALLEY UNITED CHURCH, INC. DANA, TRUSTEES PAGE 8 OF 9 0 C4 Mortgagee: Bruce L. Dana Brenda G. Dana, Trustees 173 Willow Creek Canyon Bedford, Wyoming 83112. J. INCORPORATION OF PROMISSORY NOTE. This Mortgage is made to secure a debt evidenced by a Promissory Note signed concurrently herewith, and the terms of said Promissory Note are hereby incorporated herein by reference as if stated herein in full. K. REPRESENTATION. Mortgagor acknowledges and agrees that LUTHI VOYLES, LLC, represents the Mortgagee. Mortgagor further agrees that there is no attorney /client relationship between LUTHI VOYLES, LLC and the Mortgagor. (IN WITNESS WHEREOF, the Mortgagor has signed and sealed this Mortgage this Atida STAR VALLEY UNITED CHURCH, INC., a Wyoming nonprofit corporation STATE OF WYOMING SS COUNTY OF LINCOLN ACKNOWLEDGED before me by Joe Cole, acting as President of Star Valley United Church, Inc., a Wyoming nonprofit coporation, who acknowledged further that he signed the foregoing instrument pursu t to authority provided to him as President of said nonprofit corporation, on this, the s day of he 2010. WITNESS my hand and official seal. My commission expires: ,a.`'4 -1 ATTEST: A Y i�. JU VA EL SECRETARY MORTGAGE STAR VALLEY UNITED CHURCH, INC. DANA, TRUSTEES PAGE 9 OF 9 00457