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HomeMy WebLinkAbout955742MORTGAGE Richard L. Jenkins and Kathleen A. Jenkins, Trustees, or their successors in trust, under the RICHARD AND KATHLEEN JENKINS LIVING TRUST, dated April 15, 2004, (Mortgagor) promise to pay to the order of Amy Grant Bassett, Trustee, or her successors in trust, of the Amy Bassett Trust dated February 20, 2000, (Mortgagee) of PO Box 475, Jackson, Wyoming 83001 the principal sum of Three Hundred and Eighty Thousand Dollars ($380,000.00), the real estate in Lincoln County, Wyoming described as: That property located in Section 4, T36N, R119W, 6 PM, Lincoln County, Wyoming and more properly described on the attached Exhibit A listed as Parcel 1. sometimes hereinafter referred to as the "Property," €30 552 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 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. THE MORTGAGOR HEREBY REPRESENTS, WARRANTS, COVENANTS, AND AGREES WITH THE MORTGAGEE AS FOLLOWS: I. Representations and Warranties Indebtedness. This Mortgage is given to secure payment and the Mortgagor's promise to pay to the Mortgagee Three Hundred and Eighty Thousand Dollars ($380,000.00) with interest, evidenced by a Mortgage Note of even date herewith, 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. 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 RECEIVED 9/28/2010 at 4:51 PM RECEIVING 955742 BOOK: 751 PAGE: 552 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY Mortgagee in connection with the loan evidenced by the Mortgage 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. 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. Enforceability. The Mortgage 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 Mortgage Note, this Mortgage and all other related instruments and documents are within Mortgagor's powers. No Default or Violation. The execution, delivery, and performance of this Mortgage, Mortgage Note, and all other related instruments or documents do not contravene, result in a breach of, or constitute a default under any mortgage, Mortgage 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. 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 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. Liens and Encumbrances. Mortgagor will keep the Property free and clear of all other liens and encumbrances which may be or become superior to the lien created hereby. 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. 2 000554 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. 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. 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. 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 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 Mortgage Note, or this 3 Mortgage within forty -five (45) 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 Mortgage Note if such failure continues for forty -five (45) 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 Mortgage Note is false or misleading in any material respect; or due; or (d) Mortgagor admits in writing its inability to pay its debts as they become yOiW (e) Mortgagor is generally not paying its debts as such debts become due; or (f) the Property or any part thereof is taken on execution or other process of law in any action against Mortgagor. Mortgagee's Remedies. In case an event of default shall occur as described in this Mortgage or in the Mortgage 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 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 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. 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. 4 Proceeds of Sale. The proceeds of any sale shall be applied: Cs 00556 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 Mortgage 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 the Mortgagor or to such other party or parties legally entitled to such proceeds and as indicated by Wyoming Statute. 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 such rights or remedies shall not exclude or prevent the exercise of Mortgagee's other rights or remedies. IV. Miscellaneous 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 forty five (45) 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. Assignment of Mortgage. In the event Mortgagor sells the property, Mortgagee agrees that this Mortgage and Mortgage Note shall be assignable to a qualified buyer and Mortgagee's consent to said assignment shall not unreasonably withheld. 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 5 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. Time of Essence. Time is of the essence of this Mortgage, the Mortgage Note and any and all other related instruments and documents. 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. 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 Mortgage Note, and the related documents and shall respectively extend to and be binding upon successors and assigns of said parties. Entire Agreement. The Mortgage 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 Mortgage 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. Representation. The Mortgagor acknowledges and agrees that Edwards Law Office, P.C. and Jack D. Edwards, represent the Mortgagee. Mortgagor further agrees that there is no attorney /client relationship between Edwards Law Office, P.C. and Jack D. Edwards and the Mortgagor regarding this transaction. IN WITNESS WHEREOF, the Mortgagor has signed and sealed this Mortgage this day of September, 2010. Richard and Kathleen Jenkins Living Trust, dated April 15, 2004. 000557 Tq'w f/ic. 0 Richard L. Jen /s, Trustee Kath een A. Jenkins, Trustee 6 STATE OF WYOMING SS COUNTY OF LINCOLN The foregoing Mortgage was acknowledged before me by Richard L. Jenkins and Kathleen A. Jenkins this a� day of September 2010. Witness my hand and official seal. My commission expires: PUBLIC 7 00, 558 (J t 5OO PARCEL1 L4GAL11.0_01MON 466 EXHIBIT "A" to Conveyance (Amy Bassett Trust), A tract of land lying in and being a portion of the SE/4 SE/4 of Section 4, Township 36 North, Range 119 West, 6i Lincoln County, Wyoming and more particularly described as follows: Beginning at a point which is 32.36 feet S89°42'14"E and 965.75 feet North from a BLM type monument marling the southwest corner of said SE/4 SE/4, thence continuing. -North 360.58 feet to the North line of said SP/4 SE/4; thence S 89 °56'18"B, along said North line, 52.34 feet; thence S56 °S7'S0°E,. feet; thence S4 °50'48"E 773.50 feet; thence N43°28'27"W 1199.52 feet to the Point of Beginning. Subject to reservations and restrictions contained in the United State Patent and to easements and rights -of -way of record or in use. Together with all improvements and appurtenances thereon. Subject to and together with a 60.00 foot wide easement for ingress and egress and utilities over, under and through portions of the SE/4 of Section 4, T36N, R119W, 6 P.M., Lincoln County, Wyoming, the center line of said Easement being described as follows: Beginning at a point on the center line ofthe existing McCoy Creek Road said Point being 150.82 feet N74 °01'18"E from a BLM type monument set marking the Southeast SixteenthCenterofsaid Section4; thence runningS34 °02'40"W 230.45 feet to a point on the line dividing a 15.030 acre tract and a 20.173 tract on that eeifiCGii niap for Jariiiis C: MCNeelfled 1/31/94 as No. 777270; thence South along said dividing line 1176.94 feet to the South boundary common to said tracts and said Section 4. O:F 559