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HomeMy WebLinkAbout955568RECORDATION REQUESTED BY: Commerce Bank of Wyoming, a branch of NebraskaLand National Bank 1575 Dewar Drive, Suite 100 PO Box 3000 Rock Springs, WY 82901 WHEN RECORDED MAIL TO: Commerce Bank of Wyoming, a branch of NebraskaLand National Bank 1575 Dewar Drive, Suite 100 PO Box 3000 Rock Springs, WY 82901 SEND TAX NOTICES TO: Commerce Bank of Wyoming, a branch of NebraskaLand National Bank 1575 Dewar Drive, Suite 100 PO Box 3000 Rock Springs, WY 82901 RECEIVED 9/17/2010 at 12:03 PM RECEIVING 955568 BOOK: 753 PAGE: 818 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY OC OS1,8 SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY NOTICE: THIS SUBORDINATION OF MORTGAGE RESULTS IN YOUR SECURITY INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT. SUBORDINATION OF MORTGAGE THIS SUBORDINATION OF MORTGAGE dated September 7, 2010, is made and executed among Sierra Homes Construction, Inc. "Borrower NFS Holdings, LLC "Mortgagee and Commerce Bank of Wyoming, a branch of NebraskaLand National Bank "Lender SUBORDINATED INDEBTEDNESS. Mortgagee has extended the following described financial accommodations, secured by the Real Property (the "Subordinated Indebtedness 1, Promissory note in the amount of $35,000.00, dated T 2010, in favor of NFS Holdings, LLC. SUBORDINATED MORTGAGE. The Subordinated Indebtedness is or will be secured by the Real Property and evidenced by a mortgage dated August 30, 2010 from Sierra Homes Construction, Inc. "Mortgagor to NFS Holdings, LLC "Mortgagee (the "Subordinated Mortgage and recorded in Lincoln County, State of Wyoming as follows: REAL PROPERTY DESCRIPTION. The Subordinated Mortgage covers the following described real property (the "Real Property located in Lincoln County, State of Wyoming: LOT 14 OF BLOCK 3 OF THE ANTELOPE RIDGE SUBDIVISION, PHASE 1, LINCOLN COUNTY, WYOMING AS DESCRIBED ON THE OFFICIAL PLAT THEREOF The Real Property or its address is commonly known as 104 Blue Grass Lane, Kemmerer, WY 83101. SUPERIOR INDEBTEDNESS. Lender has extended or has agreed to extend the following described financial accommodations to Borrower, secured by the Real Property (the "Superior Indebtedness r Promissory note in the amount of $120,000.00, dated Pmgnst-36; 2010, in favor of Commerce Bank of Wyoming, a branch of NebraskaLand National Bank. LENDER'S LIEN. The Superior Indebtedness is or will be secured by the Real Property and evidenced by a mortgage, dated September 7, 2010, from Borrower to Lender (the "Lender's Lien and recorded in Lincoln County, State of Wyoming as follows: As a condition to the granting of the requested financial accommodations, Lender has required that the Lender's Lien be and remain superior to the Subordinated Mortgage. REQUESTED FINANCIAL ACCOMMODATIONS. Mortgagee, who may or may not be the same person or entity as Mortgagor, and Borrower each want Lender to provide financial accommodations to Borrower in the form of the Superior Indebtedness. Borrower and Mortgagee each represent and acknowledge to Lender that Mortgagee will benefit as a result of these financial accommodations from Lender to Borrower, and Mortgagee acknowledges receipt of valuable consideration for entering into this Subordination. NOW THEREFORE THE PARTIES TO THIS SUBORDINATION HEREBY AGREE AS FOLLOWS: SUBORDINATION. The Subordinated Mortgage and the Subordinated Indebtedness secured by the Subordinated Mortgage is and shall be subordinated in all respects to Lender's Lien and the Superior Indebtedness, and it is agreed that Lender's Lien shall be and remain, at all times, prior and superior to the lien of the Subordinated Mortgage. Mortgagee also subordinates to Lender's Lien all other Security Interests in the Real Property held by Mortgagee, whether now existing or hereafter acquired. The words "Security Interest" mean and include without limitation any type of collateral security, whether in the form of a lien, charge, mortgage, deed of trust, assignment, pledge, chattel mortgage, chattel trust, factor's lien, equipment trust, conditional sale, trust receipt, lien or title retention contract, lease or consignment intended as a security device, or any other security or lien interest whatsoever, whether created by law, contract, or otherwise. MORTGAGEE'S REPRESENTATIONS AND WARRANTIES. Mortgagee represents and warrants to Lender that: (A) no representations or agreements of any kind have been made to Mortgagee which would limit or qualify in any way the terms of this Subordination; (B) this Subordination is executed at Borrower's request and not at the request of Lender; (C) Lender has made no representation to Mortgagee as to the creditworthiness of Borrower; and (D) Mortgagee has established adequate means of obtaining from Borrower on a continuing basis information regarding Borrower's financial condition. Mortgagee agrees to keep adequately informed from such means of any facts, events, or circumstances which might in any way affect Mortgagee's risks under this Subordination, and Mortgagee further agrees that Lender shall have no obligation to disclose to Mortgagee information or material acquired by Lender in the course of its relationship with Mortgagee. MORTGAGEE WAIVERS. Mortgagee waives any right to require Lender: (A) to make, extend, renew, or modify any loan to Borrower or to grant any other financial accommodations to Borrower whatsoever; (B) to make any presentment, protest, demand, or notice of any kind, including notice of any nonpayment of any Superior Indebtedness secured by Lender's Lien, or notice of any action or nonaction on the part of Borrower, Lender, any surety, endorser, or other guarantor in connection with the Superior Indebtedness, or in connection with the creation of new or additional indebtedness; (C) to resort for payment or to proceed directly or at once against any person, including Borrower; (D) to proceed directly against or exhaust any collateral held by Lender from Borrower, any other guarantor, or any other person; (E) to give notice of the terms, time, and place of any public or private sale of personal property security held by Lender from Borrower or to comply with any other applicable provisions of the Uniform Commercial Code; (F) to pursue any other remedy within Lender's power; or (G) to commit any act or omission of any kind, at any time, with respect to any matter whatsoever. LENDER'S RIGHTS. Lender may take or omit any and all actions with respect to Lender's Lien without affecting whatsoever any of Lender's rights under this Subordination. In particular, without limitation, Lender may, without notice of any kind to Mortgagee, (A) make one or more additional secured or unsecured loans to Borrower; (B) repeatedly alter, compromise, renew, extend, accelerate, or otherwise change the time for payment or other terms of the Superior Indebtedness or any part of it, including increases and decreases of the rate of interest on the Superior Indebtedness; extensions may be repeated and may be for longer than the original loan term; (C) take and hold collateral for the payment of the Superior Indebtedness, and exchange, enforce, waive, and release any such collateral, with or without the substitution of new collateral; (D) release, substitute, agree not to sue, or deal with any one or more of Borrower's sureties, endorsers, or guarantors on any terms or manner Lender chooses; (E) determine how, when and what application of payments and credits, shall be made on the Superior Indebtedness; (F) apply such security and direct the order or manner of sale of the security, as Lender in its discretion may determine; and (G) transfer this Subordination to another party. 00 1.9 Loan No: 60403 DEFAULT BY BORROWER. If Borrower becomes insolvent or bankrupt, this Subordination shall remain in full force and effect. Any default by Borrower under the terms of the Subordinated Indebtedness also shall constitute an event of default under the terms of the Superior Indebtedness in favor of Lender. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Subordination: Amendments. This Subordination constitutes the entire understanding and agreement of the parties as to the matters set forth in this Subordination. No alteration of or amendment to this Subordination shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Attorneys' Fees; Expenses. If Lender institutes any suit or action to enforce any of the terms of this Subordination, Lender shall be entitled to recover such sum.as the' court may adjudge reasonable as attorneys' fees at trial and upon any appeal. Whether or not any court action is involved, and to the extent not prohibited by law, all reasonable expenses Lender incurs that in Lender's opinion are necessary at any time for the protection of its interest or the enforcement of its rights shall become a part of the Indebtedness payable on demand and shall bear interest at the Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph include, without limitation, however subject to any limits under applicable law, Lender's reasonable attorneys' fees and Lender's legal expenses whether or not there is a lawsuit, including reasonable attorneys' fees and expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post judgment collection services, the cost of searching records, obtaining title reports (including foreclosure reports), surveyors' reports, and appraisal fees and title insurance, to the extent permitted by applicable law. Mortgagee also will pay any court costs, in addition to all other sums provided by law. Authority. The person who signs this Subordination as or on behalf of Mortgagee represents and warrants that he or she has authority to execute this Subordination and to subordinate the Subordinated Indebtedness and the Mortgagee's security interests in Mortgagee's property, if any. Caption Headings. Caption headings in this Subordination are for convenience purposes only and are not to be used to interpret or define the provisions of this Subordination. Governing Law. This Subordination will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the State of Wyoming without regard to its conflicts of law provisions. This Subordination has been accepted by Lender in the State of Wyoming. Choice of Venue. If there is a lawsuit, Mortgagee agrees upon Lender's request to submit to the jurisdiction of the courts of Sweetwater County, State of Wyoming. Successors. This Subordination shall extend to and bind the respective heirs, personal representatives, successors and assigns of the parties to this Subordination, and the covenants of Mortgagee herein in favor of Lender shall extend to, include, and be enforceable by any transferee or endorsee to whom Lender may transfer any or all of the Superior Indebtedness. No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Subordination unless such waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Subordination shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Subordination. No prior waiver by Lender, nor any course of dealing between Lender and Mortgagee, shall constitute a waiver of any of Lender's rights or of any of Mortgagee's obligations as to any future transactions. Whenever the consent of Lender is required under this Subordination, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender. NOTICE: THIS SUBORDINATION AGREEMENT CONTAINS A PROVISION WHICH ALLOWS THE PERSON OBLIGATED ON YOUR REAL PROPERTY SECURITY TO OBTAIN A LOAN, A PORTION OF WHICH MAY BE EXPENDED FOR OTHER PURPOSES THAN IMPROVEMENT OF THE LAND. EACH PARTY TO THIS SUBORDINATION ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS SUBORDINATION, AND EACH PARTY AGREES TO ITS TERMS. THIS SUBORDINATION IS DATED SEPTEMBER 7, 2010. BORROWER: SIERRA HOMF,S-COMSTRUCTION, INC. MORTGAGEE: By: By: Jay B. cking, President of Sierra Homes Construction, Inc. NFS HOLDINGS, LLC Authorized ed igner or FS dings, Authorized Signer for NFS Holdings, LLC u orized Office SUBORDINATION OF MORTGAGE (Continued) Page 2 a1 R. LENDER: COMMERCE BANK OF WYOMING, A BRANCH OF NEBRASKALAND NATIONAL BANK Loan No: 60403 State of NOTARY PUBLIC JENNY GORING 10015 NORTH HWY 38 DEWEYVILLE UT 84309 MY COMMISSION EXPIRES A STATE UST OF UTAH State of gko County of ,(,`,L, (,1 This instrument was acknowledged before me on 13 2,6( b (date) by GENERAL NOTARY State of Nebraska JENNY BONTA My Comm. Exp. July 10, 2014 State of 46.15.5__L&____ County of L c t F t This instrument was acknowledged before me on 5,. 13 20I0 (date) by GENERAL NOTARY State of Nebraska JENNY BONTA My Comm. Exp. July 10, 2014 SUBORDINATION OF MORTGAGE (Continued) `e-�� a Page 3 CORPORATE ACKNOWLEDGMENT County of &lv E This instrument was acknowledged before me on C I it t (date) by Jay B. Stocking, President of Sierra Homes Construction, Inc.. My commission expires: LIMITED LIABILITY COMPANY ACKNOWLEDGMENT (Notarial Si re) My commission expires: LENDER ACKNOWLEDGMENT G f�• cic.1.166 M My commission expires: .31,-11 l l 7 I SUBORDINATION OF MORTGAGE Loan No: 60403 (Continued) Page 4 LASER PRO Lending, Ver. 5.52.20.003 Copr. Harland Financial Solutions, Inc. 1997, 2010. All Rights Reserved. WY S:\PROGRAMS\CFIWINRS\CFIIPL\G211.FC TR -5464 PR -36