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HomeMy WebLinkAbout957321RECEIVED 12/27/2010 at 11:35 AM RECEIVING 957321 BOOK: 759 PAGE: 309 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY 0 SECOND MORTGAGE This Mortgage is made the 2-?" day of December, 2010, by and between Alpine Commercial Development, Inc., a Wyoming Corporation, hereinafter referred to as the "Mortgagor and Alan and Susan Bybee and Scott and Donna Shepherd, hereinafter referred to as "Mortgagee The Mortgagor, for and in consideration of the sum of Twenty -two thousand seven hundred seventy -eight Dollars ($22778.00), $15,000.00 from Alan and Susan Bybee and $7,778 from Scott and Donna Shepherd, lawful money of the United States and other valuable consideration, loaned to the Mortgagor by the Mortgagee, the receipt of which is hereby confessed and acknowledged, does hereby mortgage to the Mortgagee, all of Mortgagor's interest in and to the following described real property situate in the County of Teton, State of Wyoming: Lot four (4) of SNAKE RIVER JUNCTION FIRST FILING, recorded on December 15, 2006, as Document No. 925355, Map No. 294 -A, in the Office of the Clerk, Lincoln County, Wyoming. Together with all buildings and improvements thereon, or which may hereafter be placed thereon; all fixtures now or hereafter attached to said premises; all water and water rights, ditches and ditch rights, reservoirs and reservoir rights, and irrigation and drainage rights; and all easements, appurtenances and incidents now or hereafter belonging or appertaining there to; subject, however, to all covenants, conditions, easements, and rights -of -way, and to mineral, mining and other exceptions, reservations and conditions of record. TO HAVE AND TO HOLD the said real and personal property forever, the Mortgagor hereby relinquishing and waiving all rights under and by virtue of the homestead exemption laws of the State of Wyoming. Mortgagor covenants that at the signing and delivery of this Mortgage, said Mortgagor is lawfully possessed of said personal property; is lawfully seized in fee simple of said real property, or has such other estate as is stated herein; has good and lawful right to mortgage, sell and convey all of said property; and warrants and will defend the title to all of said property against all lawful claims and demands, and that the same is free from all encumbrances. Alpine Commercial Development, Inc. Second Mortgage 1 0004310 However, this Mortgage is subject to the express condition that if the Mortgagor pays, or causes to be paid, to the Mortgagee the sum of Twenty -two thousand seven hundred seventy eight Dollars ($22,778) until paid, which sum or sums of money the Mortgagor hereby covenants to pay, and until such payment, performs all of the covenants and agreements herein to be performed by Mortgagor, then this Mortgage and said note shall cease and be null and void. Mortgagor and Mortgagee further covenant and agree as follows: 1. Payment. Mortgagor shall pay the indebtedness as herein provided, and the lien of this instrument shall remain in full force and effect during any postponement or extension of time of payment of any part of the indebtedness secured hereby. 2. Prepayments. The Mortgagor shall have the privilege of paying any principal sum or sums without premium or penalty of any kind. 3. Transfer of the Property. If all or any part of the property or any interest herein is sold or transferred by any means by Mortgagor without Mortgagee's prior written consent, excluding the creation of a lien or encumbrance subordinate to this Mortgage or a transfer by devise, descent or by operation of law upon the death of a joint tenant, Mortgagee may, at Mortgagee's option, declare all the sums secured by this Mortgage to be immediately due and payable. Any delay or failure on the part of the Mortgagee to demand payment shall not prejudice the Mortgagee's right there to. Mortgagee shall have waived such option to accelerate if, prior to the sale or transfer, Mortgagee at Mortgagee's sole discretion. enters into a written agreement with the person whom the property is to be sold or transferred expressly consenting to such assumption and setting forth any new terms or conditions of this Mortgage as may be requested by the Mortgagee in exchange for the Mortgagee agreeing to an assumption of this Mortgage. 4. Taxes and Assessments. Mortgagor shall pay all taxes and assessments levied or assessed against said property. 5. Maintenance of Property. Mortgagor shall not commit or permit waste, nor be negligent in the care of said property, and shall maintain the same in as good condition as at present, reasonable wear and tear excepted, and will do nothing on or in connection with said property which may impair the security of the Mortgagee hereunder. Mortgagor shall not permit said property, or any part hereof, to be levied upon or attached in any Alpine Commercial Development, Inc. Second Mortgage 2 Alpine Commercial Development, Inc. Second Mortgage 3 000311 legal or equitable proceeding, and shall not, except with the consent in writing of the Mortgagee, or as is otherwise provided and permitted in this Mortgage, remove or attempt to remove said improvements or personal property, or any part hereof, from the premises on which the same are situated. The Mortgagor covenants and agrees with the Mortgagee that the Mortgagor will not permit any default to occur or remain in effect under the First Mortgage or the indebtedness secure hereby. The Mortgagee shall be deemed to be a third -party beneficiary of the rights of the Mortgagor under the First Mortgage and may take action to enforce the obligations of the Mortgagor thereunder, and the Mortgagee is hereby granted full power and authority to cure any default of the Mortgagor under the First Mortgage and the indebtedness secure thereby and may take any action deemed by the Mortgagee to be necessary or desirable in obtaining a full or partial release of the property secured hereby from the lien of the First Mortgage, in each case with full rights of subrogation under the First Mortgage, and provided in each case that the Mortgagee shall be under no obligation to do the same. Any sums advanced by the Mortgagee with respect to the First Mortgage shall be secured by such subrogation rights and, to the extent not so secured, shall be deemed to be advanced pursuant to this paragraph. The Mortgagor shall promptly notify the Mortgagee of any default or alleged default under the First Mortgage and of any other notices or communications from the Mortgagee thereunder. 6. Insurance. As collateral and further security for the payment of the indebtedness hereby secured, Mortgagor shall keep the improvements now existing or hereinafter erected on said premises insured against loss caused by the elements, fire, earthquake, and other calamities, with extended coverage provisions, to the full insurable value thereof for the term of this Mortgage, and will pay when due all premiums on such insurance. All insurance shall be carried in responsible insurance companies licensed in Wyoming and the policies and renewals thereof shall have attached thereto by rider or otherwise loss payable clauses in favor of the First Mortgage holder and Mortgagee as their interests appear. A copy of said policy or any renewal documents pertaining thereto shall be supplied to the Mortgagee within 30 days after the date of execution of this Alpine Commercial Development, Inc. Second Mortgage 4 0 mortgage and thereafter within 10 days of any renewal of or amendment to such policy. The insurance proceeds, or any part thereof, may, at the option of the Mortgagor, be applied either to the reduction of the indebtedness hereby secured or used in reconstruction. In the event of foreclosure of this mortgage or other transfer of title to the said premises in extinguishment of the indebtedness secured hereby, all right, title and interest of the Mortgagor in and to any insurance policies then in force shall pass to the purchaser or grantee. Notwithstanding the foregoing, insurance shall not be required as long as there are no improvements on the property. 7. 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, the Mortgagee may, without notice or demand, pay the same, and if the Mortgagor fails to keep said property in good repair, the Mortgagee may make such repairs as may be necessary to protect the property, all at the expense of the Mortgagor. The 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 the 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. 8. Default. If the Mortgagor defaults in the payment of the indebtedness hereby secured, for a period of twenty (20) days after written notice, or fails to keep the improvements on said premises insured as herein provided, or in case of breach of any covenant or agreement herein contained, the whole of the then indebtedness secured hereby, both principal and interest together with all other sums payable pursuant to the provisions hereof, shall, at the option of the Mortgagee, become immediately due and payable, anything herein or in said note to the contrary notwithstanding, and failure to exercise said option shall not constitute a waiver of the right to exercise the same in the event of any subsequent default. The Mortgagee may enforce the provisions of, or Alpine Commercial Development, Inc. Second Mortgage 5 000313 foreclose, this Mortgage by any appropriate suit, action or proceeding at law or in equity, and cause to be executed and delivered to the purchaser or purchasers at any foreclosure sale a proper deed of conveyance of the property so sold. The Mortgagor hereby grants the Mortgagee the power to foreclose by advertisement and sale as provided by statute. All remedies provided in this Mortgage are distinct and cumulative to any other right or remedy under this Mortgage or afforded by law or equity and may be exercised concurrently, independently or successively. The Mortgagor agrees to pay all costs of enforcement or foreclosure, including a reasonable attorney fee. The failure of the Mortgagee to foreclose promptly upon a default shall not prejudice any right of said Mortgagee to foreclose thereafter during the continuance of such default or right to foreclose in case of further default or defaults. The net proceeds from such sale shall be applied to the payment of: first, the costs and expenses of the foreclosure and sale, including a reasonable attorney fee, and all moneys expended or advanced by the Mortgagee pursuant to the provisions of this Mortgage; second, all unpaid taxes, assessments, claims and liens on said property, which are superior to the lien hereof; third, the balance due Mortgagee on account of principal and interest on the indebtedness hereby secured; and the surplus, ii any, shall be paid to the Mortgagor. 9. Sufficiency of Foreclosure Proceeds. If the property described herein is sold under foreclosure and the proceeds are insufficient to pay the total indebtedness hereby secured, the Mortgagor executing the note or notes for which this Mortgage is security shall be personally bound to pay the unpaid balance, and the Mortgagee shall be entitled to a deficiency judgment 10. Assignment of Rents If the right of foreclosure accrues as a result of any default hereunder, the Mortgagee shall at once become entitled to exclusive possession, use and enjoyment of all property aforesaid, and to all cents, issues and profits thereof, from the accruing of such right and during the pendency of foreclosure proceedings and the period of redemption, and such possession, rents, issues and profits shall be delivered immediately to the Mortgagee on request. On refusal, the delivery of such possession. rents, issues and profits may be enforced by the Mortgagee by any appropriate suit, action or proceeding. Mortgagee shall be entitled to a Receiver for said property and all rents, Alpine Commercial Development, Inc. Second Mortgage 6 000314 issues and profits thereof, after any such default, including the time covered by foreclosure proceedings and the period of redemption, and without regard to the solvency or insolvency of the Mortgagor, or the then owner of said property, and without regard to the value of said property, o., the sufficiency thereof to discharge the Mortgage debt and foreclosure costs, fees and expense. Such Receiver may be appointed by any court of competent jurisdiction upon ex parte application, notice being hereby expressly waived, and the appointment of any such Receiver on any such application without notice is hereby consented to by the Mortgagor. All rents, issues and profits, income and revenue of said property shall be applied by such Receiver according to law and the orders and directions of the court. 11. 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 therefor related to Mortgagee's interest in the property. 12. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of the property, or part hereof, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to Mortgagee. In the event of a total taking of the property, the proceeds shall be applied to the sums secured by this Mortgage with the excess, if any, paid to Mortgagor. In the event of a partial taking of the property, unless Mortgagor and Mortgagee otherwise agree in writing, there shall be applied to the sums secured by this Mortgage such proportion of the proceeds as is equal to that proportion which the amount of the sums secured by this Mortgage immediately prior to the date of taking bears to the fair market value of the property immediately prior to the date of taking, with the balance of the proceeds paid to Mortgagor. If the property is abandoned by Mortgagor, or if, after notice by Mortgagee to Mortgagor that the condemnor offers to make an award or settle a claim for damages, Mortgagor fails to respond to Mortgagee within 30 days after the date such notice is mailed, Mortgagee is authorized to collect and apply the proceeds, at Mortgagee's option, either to restoration or repair of the property or to reduce the sums secured by this Mortgage. Unless Mortgagee and Mortgagor otherwise agree in writing, any such application of proceeds to principal shall not extend or postpone the due date of the installments referred to above or change the amount of such installments. 13. Statement. That the Mortgagee, within ten (10) days upon request in person or within thirty (30) days upon request by mail, will furnish a written statement duly acknowledged of the amount due on this Mortgage and whether any offsets or defenses exist against the mortgage debt. 14. Notices. All notices, demands or other writing in this Mortgage provided to be given, made or sent by either party to the other shall be in writing and shall be validly given or made only if personally delivered with a receipt obtained from the person receiving the notice, or sent by certified United States mail return receipt requested, or if sent by Federal Express or other similar delivery service keeping records of deliveries and attempted deliveries. Service shall be conclusively deemed made upon receipt if personally delivered or, if delivered by mail or delivery service, on the first business day delivery is attempted or upon receipt, whichever is sooner. The parties mailing addresses are as follows: Mortgagor: P. O. Box 3393 Jackson, WY 83001 Mortgagee: P.O. Box 3393 Jackson, WY 83001 15. Hearings. The headings used in this Mortgage are for only and are not to be used in its construction. 16. Binding Effect and Construction. The covenants herein contained shall bind, and the benefits and advantages shill inure to, the respective heirs, devisees, legatees, executors, administrators, successors and assigns of the parties hereto. Whenever used the singular number shall include the plural, the plural the singular, and the use of any gender shall include all genders. The term "note" includes all notes herein described Lf more than one. The terms "foreclosures" and "foreclose" as used herein, shall include the right of foreclosure by any suit, action or proceeding at law of in equity, or by advertisement and sale of said premises, or in any other manner now or hereafter provided by Wyoming statutes, inducting the power to sell. The acceptance of this mortgage and the note or Alpine Commercial Development, Inc. Second Mortgage 7 00031.5 000316 notes it secures, by the Mortgagee shall be an acceptance of the terms and conditions contained therein. 17. Release. Upon payment of all sums sectired by this Mortgage, Mortgagee shall release this Mortgage without charge to Mortgagor. Mortgagor shall pay all costs of recordation, if any. 18. Waiver of Homestead. Mortgagor hereby relinquishes and waives all rights under and by virtue of the homestead exemption laws of the State of Wyoming. IN WITNESS WHEREOF, the said Mortgagor has hereunto signed and sealed these presents the day and year first above written. STATE OF WYOMING COUNTY OF TETON WITNESS my hand and official seal. ck Johnson ate President Alpine Commercial Development, Inc. The foregoing instrument was acknowledged before me this 7.Z- day of December, 2010 by Rick Johnson, President of Alpine Commercial Development, Inc. Notary Public My Commission expires: Alpine Commercial Development, Inc. Second Mortgage 8