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HomeMy WebLinkAbout966493Recorded at the Request of Spirit of Texas Bank David Stewart 625 University Drive East College Station, Texas 77024 en Recorded Retu To Spin Texas B Carol Lave 625 Uni rsity e East Co _e Station, Texa 024 RECEIVED 8/28/ at 12:49 PM RECEIVING 966493 BOOK: 792 PAGE: 592 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY AFTER RECORDING, RETURN TO: AMERICAN TITLE, INC. P.O. BOX 641010 OMAHA, NE 68164 -1010 ATI# 0V n c� MORTGAGE The Bauman Partnership, of 255 S Hound St Morgan, UT 84050, (herein collectively called 'MORTGAGOR to secure the Guaranty Agreement of even date herewith securing the payment of ONE HUNDRED SEVENTY TWO THOUSAND SEVEN HUNDRED DOLLARS AND NO /100 DOLLARS ($172,700.00), with interest thereon, as provided in and evidenced by a promissory note of even date herewith (the ultimate maturity date of which is July 3 1 2022) and all renewals, modification and extensions thereof, do hereby mortgage unto Spirit of Texas Bank of 625 University Drive East, College Station, Texas 7 /840 (herein called "MORTGAGEE the following described real property, situated in the County of Lincoln, State of WY, hereby releasing and waiving all rights under and by virtue of the homestead exemption laws of the State of Wyoming, to -wit: Lot 96 of Star Valley Ranch Plat 10, Lincoln County, Wyoming as described on the official plat filed on March 16, 1976 as instrument No. 476273 of the records of the Lincoln County Clerk also known as 36 Sugar Loaf Drive, Star Valley Ranch Wyoming 83127. MORTGAGOR agrees to pay the indebtedness hereby secured; to pay all taxes, assessments and charges levied against the property, as the same become due and payable; to secure, maintain and furnish MORTGAGEE evidence thereof, insurance with an insurance carrier or carriers acceptable to MORTGAGOR, covering the insurance improvements on the Property against loss by fire and earthquakes, with extended coverage, in an amount not less than the unpaid balance, of the debt hereby secured, or the insurable value (replacement cost) of such improvements, whichever is less, which insurance shall contain an appropriate loss payable provision protecting MORTGAGOR and MORTGAGEE as their respective interests may appear from time to time. In the event MORTGAGOR fails to pay such taxes or assessments, or fails to keep and maintain such insurance as herein provided, MORTGAGEE may pay such taxes and assessments and may secure and pay for such insurance, and all sums so paid shall be added to and considered a part of the indebtedness hereby secured and shall draw interest at the same rate. In case default shall be made in the payment of the above sums hereby secured, or in the payment of the interest thereon, or any part of such principal or interest, when the same shall become due; or in case of default shall be made in any of the covenants and agreements thereof, or in the event MORTGAGOR sells or conveys the Property, or any part thereof, or any interest therein, without the prior written consent of the MORTGAGEE fast had and obtained, then the whole indebtedness hereby secured, with interest thereon, shall become due and payable, at the option of MORTGAGEE, and MORTGAGEE'S legal representatives and assigns, may proceed by advertisement and sale /or as otherwise authorized by governing law, to foreclose on and sell the Property, and out of the proceeds of such sale, MORTGAGEE shall pay all sums due hereunder, together with all costs of sale including reasonable attorney's fees. If the proceeds of the foreclosure sale are insufficient to pay the indebtedness hereby secured and foreclosure costs, MORTGAGEE shall be entitled to a deficiency judgment In the event of any default whereby the right of foreclosure occurs hereunder, MORTGAGEE shall at once become entitled to exclusive possession, use and enjoyment of the Property, and to all rents, issues and profits from the accruing of any such rights and during the pendency of the foreclosure proceedings, and the period of redemption, if any there be. 00592 MORTGAGOR warrants ride to the Property as to parties claiming, by, through or under the MORTGAGOR only. Witness our hands this 3 day of July, 2012. The Bauman Partnership By: Christop r Bauman, General Partner STATE OF UTAH COUNTY OF This Instrument was acknowledged before me on N July, 2012 by Christopher Bauman, General Partner of The Bauman Partnership T;vMERA L. POE Notary Public o Stale ol',';xS IS Commission 603955 COMM, EXP. 01-05.2015 Notary Public of the State of Utah, amen L Poe NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE 11' IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. ASSIGNMENT OF RENTS AND LEASES The Bauman Partership "Assignor whose address for notice hereunder is 255 S. Hound, Morgan, UT 84050, by Deed of Trust, Security Agreement and Financing Statement of even date herewith (hereinafter the "Deed of Trust"), mortgaged to Spirit of Texas Bank, ssb as mortgagee "Assignee whose address for notice is 625 University Drive East, College Station, Texas 77840, the real property more particularly described as Lot 96 of Star Valley Ranch Plat 10, Lincoln County, Wyoming as described on the official plat filed on March 16, 1976 as instrument No. 476273 of the records of the Lincoln County Clerk also known as 36 Sugar Loaf Drive, Star Valley Ranch Wyoming 83127 (the "Property"). D. The Deed of Trust was given to secure the Guaranty Agreement of even date herewith which secures the payment of a certain Balloon Real Estate Lien Note (hereinafter called "Note of even date herewith in the principal sum of ONE HUNDRED SEVENTY TWO THOUSAND SEVEN HUNDRED AND NO /100 DOLLARS ($172,700.00), being payable in one hundred twenty (120) consecutive monthly installments commencing thirty (30) days from the date thereof, executed by Assignor and payable to the order of Assignee; all renewals, rearrangements, extensions, amendments, and/or modifications of the Note; and all other sums of money which may be thereafter paid or advanced by or on behalf of Assignee under the terms and provisions of the Deed of Trust; any additional loans made by Assignee to Assignor (it being contemplated that Assignee may lend additional sums to Assignor from time to time, but shall not be obligated to do so); and any and all other indebtedness, obligations, and liabilities of any kind of Assignor to Assignee, now or hereafter existing, absolute or contingent, joint and/or several, secured or unsecured, due or not due, arising by operation of law or otherwise, or direct or indirect, including indebtedness, obligations, and liabilities to Assignee of Assignor as a member of any partnership, syndicate, association or other group, and whether incurred by Assignor as principal, surety, endorser, guarantor, accommodation party, or otherwise, and whether originally contracted with Assignee or acquired by Assignee pursuant to a loan participation agreement or otherwise (all of which are hereinafter referred to as the "Indebtedness The Deed of Trust and the Note are incorporated herein by reference for all purposes. E. Assignor, as lessor, has entered and/or may enter into leases in the future, in connection with the improvements located on the Property (the "Leases NOW, THEREFORE, for value received, Assignor hereby absolutely and unconditionally assigns and transfers to Assignee (1) all rents, revenues and any other income of the Property, including those now due, or to become due by virtue of the Leases, or any other agreement for the occupancy or use of all or any part of the Property, regardless of the party to whom the rents and revenues of the Property are payable; and (ii) all the Leases and any other agreements for the use or occupancy of all or any part of the Property, including any and all extensions, renewals and replacements thereof. All Leases, other agreements for use or occupancy, and all extensions, renewals and replacements thereof, and all future leases and other agreements for use or occupancy, extensions, renewals and replacements thereof, are hereby incorporated to be included in all references to Leases herein. This Assignment and agreement shall be under the following terms and conditions: 16. Until the Indebtedness is paid in full, or until the Property is released by Assignee as security for the Indebtedness, Assignor shall transfer, sell and assign, and hereby transfers, sells and assigns, unto Assignee all subsequent Leases of the Property, or any part thereof. 17. Assignor acknowledges that this assignment in no way affects or alters the Indebtedness and Deed of Trust. Assignor hereby agrees to make or cause to be made: 0059 (a) all payments of principal and interest on the Indebtedness; (b) payment of all other sums, with interest thereon, becoming due and payable to Assignee under the provisions of this Assignment, the Indebtedness, the Deed of Trust or in any other instrument executed in connection with the Indebtedness; and (c) punctual performance and discharge of each and every obligation, covenant and agreement contained in the Indebtedness, the Deed of Trust or in any other instrument executed in connection with the Indebtedness. 18. Assignor warrants and represents that Assignor has not previously assigned the Leases or the rents and revenues of the Property, or executed any other instrument which would interfere with or in any manner prevent Assignee from obtaining the full benefits of the provisions of this Assignment. 19. Assignor hereby authorizes Assignee or Assignee's agents to collect the rents and revenues from the Property and hereby directs each tenant of the Leases to pay such rents and revenues to Assignee or Assignee's agents; provided, however, so long as there shall exist no default in the payment of the Indebtedness, or in the performance of any obligation, covenant or agreement contained herein, in the Indebtedness, the Deed of Trust or in any other instrument executed in connection with the Indebtedness, Assignor shall have the right to collect and receive as trustee for the benefit of Assignee all rents and revenues arising under the Leases or from the Property, and to apply the rents and revenues so collected to the sums secured by the Deed of Trust, with the balance, so long as no such default exists, to the account of Assignor; it being the intention of Assignor and Assignee that this Agreement constitutes an absolute assignment and not an assignment for additional security only, but is an assignment intended as a pro tanto payment of the Indebtedness and all other indebtedness secured by the lien of the Deed of Trust (to the extent of actual cash proceeds received by the Assignee). 20. Assignor covenants and agrees with Assignee: (a) not to collect any of the rent, income and profits from the Property more than one month in advance of the time that the same shall become due under the provisions of the Leases (other than for security deposits made under the Leases); (b) not to execute any other assignment of the rents, income or profits arising or accruing from the Leases or the Property; (c) to assign and transfer to the Assignee any and all other Leases entered into after the date of this Assignment upon all or any part of the Property and to execute and deliver, at the request of the Assignee, all such further assignments in the premises as the Assignee shall from time to time require; (d) that if any act shall be done by the Assignor in breach of the foregoing, then such act shall be null and void and without force or effect unless specifically agreed to in writing by the Assignee. 21. Upon or at any time after default in the payment of the principal and interest on the Indebtedness, in the performance of any obligation, covenant or agreement contained herein, in the Indebtedness, the Deed of Trust, or in any other instrument executed in connection with the Indebtedness, Assignor's right to collect and receive as trustee for the benefit of Assignee all rents and revenues arising under the Leases shall terminate without notice to Assignor. Further, the Assignee may, but is not obligated or required, at its option, without notice, and without regard to the adequacy of the security for the Indebtedness, either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, take possession of the Property and hold, manage, lease and operate the same on such terms and for such period of time as Assignee may deem proper. Additionally, Assignee may demand, sue for or otherwise collect and receive all rents, income and revenues of the Property, including those past due and unpaid, without taking possession of the Property. Assignee shall also have full power to make, from time to time, all alterations, renovations, repairs or replacements to the Property as may seem proper to Assignee and to apply such rents, income and profits to the payment of: UU :Jb (a) all expenses of managing the Property, including, without limitation, the salaries, fees and wages of a managing agent and such other employees as Assignee may deem necessary or desirable, and all expenses of operating and maintaining the Property, including all taxes, charges, claims, assessments, and any other liens, and premiums for all insurance which the Assignee may deem necessary or desirable, the cost of all alterations, renovations, repairs or replacements, and all expenses incident to taking and regaining possession of the Property; and (b) the principal and interest on the Indebtedness, and all costs and expenses (including but not limited to attorneys' fees) incurred by Assignee in enforcing Assignor's obligations hereunder, under the Indebtedness, the Deed of Trust, or in any other instrument executed by Assignor in connection with the Indebtedness, all in such order of priority as to any of the items mentioned in this paragraph as the Assignee in its sole discretion may determine. No credit shall be given by Assignee for any sum or sums received from the rents, income and revenues of the Property until the money collected is actually received by Assignee and no credits shall be given for any uncollected rents or other uncollected amounts or bills, nor shall credit on any indebtedness secured by the lien of the Deed of Trust be given for any rents, income and revenues derived from the Property after Assignee obtains title to the Property by foreclosure, order of a court or by operation of law or otherwise. The exercise by Assignee of the option granted in this paragraph to take possession of the Property, and Assignee's collection of the rents, income and revenues and the application thereof as herein provided shall not be considered a waiver of any default under the Indebtedness, Deed of Trust, this Assignment or any other instrument executed in connection with the Indebtedness. 22. Assignee shall not be liable for any loss sustained by Assignor resulting from Assignee's failure to let the Property or portions thereof after default or from any other act or omission of Assignee in managing the Property after default unless such loss is caused by the willful misconduct and bad faith of Assignee. Furthermore, it is understood that Assignee shall not be obligated to assume, perform or discharge nor does Assignee undertake to assume, perform or discharge, any obligation, duty or liability of Assignor under the Leases, it being agreed that Assignee shall in no event be treated as agreeing to assume, perform or discharge such obligations, duty or liability, but shall be deemed to have been taken subject to such obligations, duties and liabilities if: (a) Assignee shall, by written notice sent to the tenants named in the Leases, specifically so elect; or (b) Assignee shall foreclose judicially or under the Deed of Trust and take possession of the Property. In no event shall Assignee be liable for the performance or discharge of any obligations not expressly assumed by it, or in any assignment or other transfer by Assignee of its interests in the Leases or the Property to any other party. Assignor shall, and hereby agrees to, defend (with counsel acceptable to Assignee), indemnify and hold Assignee harmless from and against any and all liability, loss, cost, damage or expenses which may be or is incurred by Assignee under the Leases or under or by reason of this Assignment and from any and all claims and demands whatsoever which may be asserted against Assignee or by reason of any alleged obligations or undertakings on the part of Assignee to perform or discharge any of the terms, covenants or agreements contained in the Leases, except such obligations or undertakings expressly assumed by Assignee. If Assignee should incur any such liability, or be subject to any such claims, all expenses incurred or expended by Assignee in connection therewith (including attorneys' fees) shall be deemed secured by this Assignment and the Deed of Trust and Assignor shall reimburse Assignee immediately upon demand. Upon the failure of Assignor to reimburse Assignee, Assignee may, at its option, declare all sums evidenced by the Indebtedness and secured by the Deed of Trust immediately due and payable. It is further understood that this Assignment shall not operate to place responsibility upon Assignee, except as otherwise specifically provided, for the control, care, management or repair of the Property, nor for the carrying out of any of the terms and conditions of the Leases nor shall it operate to make Assignee responsible or liable for any waste committed on the Property by any tenant thereof, or any other parties, or for any dangerous or defective condition of the Property, or for any negligence in the management, i9 U id e9 upkeep, repair or control of the Properey resulting in Loss, injury or death to any tenant, licensee, employee or stranger. 23. In the event there shall have been made payment in full of the principal and interest on the Indebtedness secured by the lien of the Deed' of Trust, and Assignor shall make,, or cause to have been made, full performance of all of Assignor's obligations under the Deed of Trust, this Assignment, and all other instruments executed in connection with the Indebtedness, then this Assignment shall become and be void and of no further force or effect. An affidavit, certificate, letter or statement of any officer, agent or attorney of Assignee indicating that any part of the principal or interest on the Indebtedness remains unpaid or that Assignor's obligations remain unperformed shall be conclusive evidence of the continuing validity and effectiveness of this Agreement and any person may, and is authorized to, rely thereon. 24. Assignor authorizes and directs the tenants named in the Leases, upon receipt from Assignee of written notice to the effect that (i) Assignee is then the holder of the Indebtedness, Deed of Trust and this Assignment, and (ii) that a default exists under any of the provisions of one or all of such instruments, to pay over to Assignee all rents, income and revenues arising or accruing under the Leases and to continue to do so until otherwise notified by Assignee. Assignor agrees that (i) any tenant or occupant of the Property shall have the right to rely upon notice by Assignee without obligation or right to inquire as to whether default actually exists; and (ii) Assignor shall have no right or claim against any such tenant or occupant for any such rents paid by any tenant or occupant to Assignee following receipt of such notice. 25. Nothing contained in this Assignment and no act done or omitted by Assignee pursuant to the powers and rights granted it hereunder shall be deemed to be a waiver by Assignee of its rights and remedies under the Indebtedness, Deed of Trust or under any other instrument executed in connection with the Indebtedness, and this Assignment is made and accepted without prejudice to any of the rights and remedies possessed by Assignee under the terms of any instrument executed in connection with the Indebtedness. The collection and application of the rents, income and revenues from the Property to the Indebtedness, or as otherwise provided above, shall not constitute a waiver by Assignee of any default which night at the time of such application or thereafter exist under any documents executed in connection with the Indebtedness. The Indebtedness may be accelerated in accordance with its terms, notwithstanding the application of rents, income and revenues, 26_ In the event of foreclosure of the Deed of Trust by sale or otherwise, Assignee is authorized (i) to sell Assignor's interest in the Leases as lessor together with the Property; or (ii) to assign the same without the Property; or (iii) to assign the same without consideration to the purchaser at any such sale or to any other claimant to title to the Property by virtue of foreclosure of the lien of the Deed of Trust. There shall be no liability to account to Assignor for any rents, revenues, income or profits accruing after the foreclosure of the Deed of Trust 27. Assignor agrees to execute and deliver to Assignee such further instruments and documents as, from time to time during the existence of this Assignment, Assignee may reasonably require in order to perfect the interest and rights of Assignee under this Assignment. 28. No remedy or right conferred upon Assignee by operation of law, by this Assignment, the Indebtedness, the Deed of Trust or by any other instrument executed in connection with the Indebtedness is intended to be, nor shall it be, inclusive of any other right or remedy, but each and every remedy or right shall be cumulative and shall be in addition to every other remedy or right conferred upon Assignor and each and every such remedy or right may be pursued by Assignee in such manner and order, together or separately, and at such times as Assignee may elect. 29. If any term or provision of this Assignment, or the application thereof to any person or circumstances shall, to any extent be invalid or unenforceable, the remainder of this Assignment, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each terrn and provision of this Assignment shall be valid and be enforced to the fullest extent permitted by law. RJ 't i 'd r? 30. Notice provided for in this Assignment must be in writing, and shall be given or served, unless otherwise expressly provided herein, by depositing the same in the United States Mail, postpaid and certified and addressed to the party to be notified, with return receipt requested, or by delivering the same by courier or in person to such party (or, if the party or parties to be notified be incorporated, to an officer of such party), or by prepaid telegram, telecopy, fax or e-mail addressed to the party to be notified. Notice deposited in the mail, postpaid and certified with return receipt requested, shall be deemed received upon deposit in a proper United States mail depository. For the purposes of notice, the addresses of the parties are as stated in paragraph A of this Assignment. The parties and their respective successors and assigns shall have the right from time to time, and at any time, to change their respective addresses and agents for the receipt of notice and shall have the right to specify as their respective addresses and agents any other by giving at least ten (10) days prior written notice to the other party. EXECUTED this 9 day of July 2012 The Bauman Partnership By: Christophejauman, General Partner COUNTY OF �,t� THE STATE OF This instrument was acknowledged before me on the day of July 2012, by Christopher Bauman, General Partner of The Bauman Partnership, a Utah ip for and on behalf of said partnership. A' ecordin return Mr. Tim Spirit of T s; ate, ssb 625 U rsity D East Co ge Station, Texas 840 AFTER RECORDING, RETURN TO: AMERICAN TITLE, INC. P.O. BOX 641010 OMAHA, NE 68164 -1010 ATI# aO` r XiQ .t on521,5n, Notary Public, State of Acsr rn r off- E irk (s) "rarne.Pcx L Ppe TAMERA L. POE Rotary Public a Slate of Utah /s Commission 0 603955 COMM. EXP. 01.05.2015 SCHEDULE A LEGAL DESCRIPTION Lot 96, STAR VALLEY RANCH PLAT 10, Lincoln County, Wyoming, as described on the official plat filed on March 16,1976 as Filing No. 476273 of the records of the Lincoln County Clerk.