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HomeMy WebLinkAbout967407RECEIVED1"012 at 4:40 PM RECEIVING 967407 BOOK: 796 PAGE: 354 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY Lot 18 of TRAIL CREEK SUBDIVISION as shown on the official plat thereof filed April 3, 2002 as Receiving No. 880072 in the Office of the Clerk of Lincoln County, Wyoming as Plat No. 196 -F; Together with all the improvements now or to be erected on the property, and all easements, rights, appurtenances, rents, royalties, mineral, oil and gas rights and profits, water rights and stock and all fixtures now or hereafter a part of the property; and all replacements of and /or additions to same; All of the foregoing is hereafter referred to as "the Property GRANTOR: BOSWELL, ADAM L ET AL GRANTEE: DICE, DARREL J TRUSTEE Doc 0798775 bk 786 pg 1066 -1072 Filed At 16:18 ON 08/03/11 FIRST MORTGAGE Sherry L. Daigle Teton County Clerk fees: 26.00 By Kassie Hansen Deputy THIS FIRST MORTGAGE (hereafter "Mortgage is entered into between Adam L. Boswell and Diane M. Boswell, jointly and severally (but hereafter collectively referred to as "Mortgagor and Darrel J. Dice, Trustee of the Darrel J. Dice Revocable Trust dated February 1, 2007 (hereafter "Mortgagee 1. Grant of Mortgage Property Description. Mortgagor, for good and valuable consideration in hand paid, and to secure the indebtedness hereinafter referred to, does hereby mortgage to the Mortgagee that real property situated in Lincoln County, Wyoming described as: 2. Mortgagor's Waiver of Certain Rights. Mortgagor waives all rights of homestead exemption in the Property and relinquishes all rights of curtesy and dower in the Property. 3. Warranty of Ownership. The Mortgagor covenants and warrants that at the signing and delivery of this Mortgage, the Mortgagor is lawfully seized in fee simple of the Property and has good and lawful right to mortgage, sell, and convey such property; that the Mortgagor warrants and will defend the title to the Property against all lawful claims and demands; and that the Property is free from all encumbrances not permitted hereunder. 4. Mortgage Amount and Conditions of Satisfaction and Release of Mortgage. This Mortgage is subject to the express condition that if the Mortgagor pays, or causes to be paid, to the Mortgagee the sum of FOUR HUNDRED FIFTY THOUSAND DOLLARS ($450,000.00), together with interest thereon and any applicable charges pursuant to and payable under the terms and conditions of that certain Secured Promissory Note of even date herewith executed and delivered by the Mortgagor to the Mortgagee (hereafter "the Note and all extensions and renewals or amendments thereof, if any, and all other amounts due hereunder, then this Mortgage and the Note shall cease and be null and void. The Mortgagor hereby covenants to pay all such amounts promptly when due. 5. Mortgagor's Covenants, Promises and Agreements. The Mortgagor further expressly covenants and agrees as follows: a.. First Priority Lien. This Mortgage represents a purchase money security interest for Mortgagee's sale of the Property to Mortgagor. The lien of this Mortgage First Mortgage (Boswell/Dice Trust) Page 1 of 7 RELEASED INDEXED ABSTRACTED SCANNED shall be and remain a first priority security interest in the Property to secure payment of the Note, and shall remain in full force and effect during any postponement or extension of the time of payment of any part of the indebtedness secured hereby. b. Taxes Assessments. The Mortgagor shall pay or cause to be paid promptly when due all taxes and assessments (including without limitation any homeowner assessments) levied or assessed against the Property. If the Mortgagor defaults in the payment of such taxes, assessments, or other lawful charges, the Mortgagee may pay the same upon the expiration of five (5) days after notice of default is delivered to Mortgagor by or on behalf of the Mortgagee. In such event the Mortgagor covenants and agrees that all such sums of money so expended by Mortgagee, together with all costs of enforcement or foreclosure, and reasonable attorneys fees, shall be added to the debt hereby secured, and Mortgagor agrees to repay the same and all expenses so incurred by the Mortgagee, with interest thereon from the date of payment at the interest rate provided in the Note secured hereby until repaid, and the same shall be a first lien on the Property and be secured by this Mortgage. c. Compliance with all Laws. The Mortgagor shall comply with all recordation and other laws affecting the security of this Mortgage, at the expense of the Mortgagor. d. No Liens or Attachments. The Mortgagor shall not create, incur, or suffer to exist any other mortgage or lien on the Property that is not junior to the lien of this Mortgage. The Mortgagor shall further not permit the Mortgagor's or Mortgagee's interest in the Property or any part thereof to be levied upon or attached in any legal or equitable proceeding, except to the extent such levy or attachment is promptly and diligently contested by Mortgagor in good faith by appropriate proceedings. Should Mortgagor fail to promptly and diligently contest any such matters, the Mortgagee may, upon the expiration of five (5) days after notice of default is delivered to Mortgagor by or on behalf of the Mortgagee, retain legal counsel and contest and /or pay or otherwise resolve the same. In such event the Mortgagor covenants and agrees that all sums of money expended by Mortgagee in contesting and /or resolving such matters, together with all costs of enforcement or foreclosure, and reasonable attorneys fees, shall be added to the principal sum of the debt hereby secured, and Mortgagor agrees to repay the same and all expenses so incurred by the Mortgagee, with interest thereon from the date of the notice of default at the interest rate provided in the Note secured hereby until repaid, and the same shall be a first lien on the Property and be secured by this Mortgage. e. Insurance. (i) Mortgagor shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire, hazards included within the term "extended coverage and any other hazards including, but not limited to, earthquakes and floods, for which Mortgagee requires insurance. This insurance shall be maintained in the amounts (including deductible levels) and for the periods that Mortgagee requires, but in no event shall the coverage amount be less First Mortgage (Boswell/Dice Trust) Page2of7 0®35 a First Mortgage (Boswell /Dice Trust) Page 3 of 7 003 than the cost to completely replace the improvements on the Property with improvements of equal quality and quantity. The insurance carrier providing the insurance shall be chosen by Mortgagor subject to Mortgagee's right to disapprove Mortgagor's choice, which right shall not be exercised unreasonably. (ii) If Mortgagor fails to obtain and maintain any of the coverages described above, Mortgagee may obtain insurance coverage, at Mortgagee's option and Mortgagor's expense. Mortgagee is under no obligation to purchase any particular type or amount of coverage. Therefore, such coverage shall cover Mortgagee, but might or might not protect Mortgagor, Mortgagor's equity in the Property, or the contents of the Property, against any risk, hazard or liability and might provide greater or lesser coverage than was previously in effect. Mortgagor acknowledges that the cost of the insurance coverage so obtained might significantly exceed the cost of insurance that Mortgagor could have obtained. Any costs incurred by Mortgagee under this subparagraph (e) shall become additional debt of Mortgagor secured by this Mortgage. These amounts shall bear interest at the Note rate from the date of disbursement and shall be payable, with such interest, upon notice from Mortgagee to Mortgagor requesting payment. (iii) All insurance policies required by Mortgagee and renewals of such policies shall be subject to Mortgagee's right to disapprove such policies, shall include a standard mortgage clause, and shall name Mortgagee as mortgagee and /or as an additional loss payee. Mortgagee shall have the right to hold the policies and renewal certificates. If Mortgagee requires, Mortgagor shall promptly give to Mortgagee all receipts of paid premiums and renewal notices. If Mortgagor obtains any form of insurance coverage not otherwise required by Mortgagee, for damage to, or destruction of, the Property, such policy shall include a standard mortgage clause and shall name Mortgagee as mortgagee and /or as an additional loss payee. (iv) In the event of loss or damage to the Property, Mortgagor shall give prompt notice to the insurance carrier and to Mortgagee. Mortgagee may make proof of loss directly to the insurance carrier(s) if not made promptly by Mortgagor. Unless Mortgagee and Mortgagor otherwise agree in writing, any insurance proceeds, whether or not the underlying insurance was required by Mortgagee, shall be applied to restoration or repair of the Property, if in Mortgagee's discretion the restoration or repair is economically feasible and Mortgagee's security is not lessened. During such repair and restoration period, Mortgagee shall have the right to hold such insurance proceeds until Mortgagee has had an opportunity to inspect such Property to ensure the work has been completed to Mortgagee's satisfaction, provided that such inspection shall be undertaken promptly. Mortgagee may disburse proceeds for the repairs and restoration in a single payment or in a series of progress payments as the work is completed. Unless an agreement is made in writing or applicable law requires interest to be paid on such insurance proceeds, Mortgagee shall not be required to pay Mortgagor any interest or earnings on such proceeds. Fees for public adjusters, or other third parties, retained by Mortgagor shall not be paid out of the insurance proceeds and shall be the sole obligation of Mortgagor. If in Mortgagee's discretion the restoration or repair is not economically feasible, or Mortgagee's security would be lessened, the insurance proceeds shall be applied to the sums secured by this Mortgage, whether or not then due, with the excess, if any, paid to Mortgagor. Such insurance proceeds shall be applied in the order provided for in the Note. (v) If Mortgagor abandons the Property, Mortgagee may file, negotiate and settle any available insurance claim and related matters. If Mortgagor does not respond within thirty (30) days to a notice from Mortgagee that the insurance carrier has offered to settle a claim, then Mortgagee may negotiate and settle the claim. The thirty -day period will begin when the notice is given. In either event, or if Mortgagee acquires the Property through foreclosure of this Mortgage or otherwise, Mortgagor hereby assigns to Mortgagee (1) Mortgagor's rights to any insurance proceeds in an amount not to exceed the amounts unpaid under the Note or this Mortgage, and (2) any other of Mortgagor's rights (other than the right to any refund of unearned premiums paid by Mortgagor) under all insurance policies covering the Property, insofar as such rights are applicable to the coverage of the Property. Mortgagee may use the insurance proceeds either to repair or restore the Property or to pay amounts unpaid under the Note or this Mortgage, whether or not then due. 6. Default. If the Mortgagor defaults in the payment of any amounts due under the Note secured hereby, or in the case of a breach of any covenant or agreement contained in the Note or this Mortgage (the preceding collectively referred to hereafter as an "Event of Default and such Event of Default is not cured in the time provided by the Note or this Mortgage, the whole of the then outstanding indebtedness secured hereby, both principal and interest, together with all other sums payable pursuant to the provisions of the Note or this Mortgage shall, at the option of the Mortgagee, become immediately due and payable, anything herein or in the Note to the contrary notwithstanding, and failure to exercise such option shall not constitute a waiver of the right to exercise the same in the event of any subsequent Event of Default. 7. Foreclosure. The Mortgagee may enforce the provisions of or foreclose this Mortgage by any appropriate suit, action, or proceeding at law or in equity; or by advertisement and sale as provided by Wyoming Statutes. (a) The terms "foreclosure" and "foreclose as used herein, shall specifically include the right of foreclosure by advertisement and sale of the Property, or in any other manner now or hereafter provided by Wyoming law. The Mortgagor agrees to pay all costs of enforcement and of foreclosure, including reasonable costs and attorneys fees incurred by the Mortgagee. (b) If Mortgagee invokes the power of sale, Mortgagee shall give notice of intent to foreclose to Mortgagor and to the person in possession of the Property, if different, in accordance with applicable law. Mortgagee shall give notice of the sale to First Mortgage (Boswell /Dice Trust) Page 4 of 7 003 u 3 5 Mortgagor, and publish the notice of sale, and the Property shall be sold in the manner prescribed by applicable law. Mortgagee or its designee may purchase the Property at any sale. The proceeds of the sale shall be applied in the following order: (a) to all expenses of the sale, including, but not limited to, reasonable attorney fees; (b) to all sums secured by this Mortgage; and (c) any excess to the person or persons legally entitled to it. (c) The failure of the Mortgagee to promptly foreclose following an Event of Default shall not prejudice any right of the Mortgagee to foreclose thereafter during the continuance of such default or any right to foreclose in case of further default or defaults. d) The proceeds from a foreclosure sale shall be applied to the payment of: First, the costs and expenses of foreclosure and sale, including costs and reasonable attorneys fees incurred by Mortgagee, and all money expended or advanced by the Mortgagee pursuant to the provisions of this Mortgage; Second, all unpaid taxes, assessments, claims and liens on the Property, which may at the time of foreclosure sale be superior to the lien hereof; Third, the balance due to the Mortgagee on account of any sums due under the Note hereby secured; and Fourth, the surplus, if any, shall be paid to the Mortgagor (subject to the rights of any junior lien holders). (e) If the right of foreclosure accrues as a result of an Event of Default hereunder, the Mortgagee shall immediately become entitled to exclusive possession, use, and enjoyment of the Property and to all rents, income 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, income, and profits shall be delivered immediately to the Mortgagee on request. On refusal by Mortgagor, the delivery of such possession, rents, income, and profits may be enforced by the Mortgagee by any appropriate suit, action, or proceeding. Mortgagor consents to appointment of a receiver for the Property in such event, and all rents, income, and profits thereof after 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 the Property, and without regard to the value of the Property, or the sufficiency thereof to discharge the indebtedness secured hereby and foreclosure costs, fees and expenses. Such receiver may be appointed by any court of competent jurisdiction upon application by Mortgagee, and the Mortgagor hereby consents to the appointment of such receiver in event of such application by Mortgagee. All rents, income, and profits of the Property shall be applied by such receiver according to law and the orders and directions of the court. All costs, fees, and expenses of the receiver, his accountants, attorneys or consultants shall be added to and be part of the sums due under the Note and secured by this Mortgage. (f) If the Property is sold under foreclosure or otherwise, and the proceeds are insufficient to pay the total indebtedness secured by this Mortgage, the Mortgagor shall be liable to the Mortgagee for such deficiency, and said sums shall bear interest at the acceleration interest rate set forth in the Note. First Mortgage (Boswell /Dice Trust) Page 5 of 7 8. Transfers of the Property Due on. Sale Clause. At the election of the Mortgagee, in the event of any Transfer of the Property by Mortgagor, all sums secured by this Mortgage shall become immediately due and payable. The mere fact of a lapse of time or the acceptance of payment subsequent to any Transfer shall not be deemed a waiver of Mortgagee's right to elect to accelerate the amounts secured by this Mortgage. The term "Transfer for purposes of this Mortgage, shall include a voluntary or involuntary transfer or conveyance, whether by sale, gift, or other of all or any part of the Property; the execution of a contract or agreement creating a right to title of all or any part of the Property; the execution of an agreement granting a possessory right in all or any part of the Property for a period in excess of one (1) year; and a transfer by devise or descent upon the death of the Mortgagor. "Transfer" does not include the creation of a lien or encumbrance subordinate to this Mortgage. 9. Inspection. Lender or its agent may make reasonable entries on and inspections of the Property. Lender shall give Borrower notice at the time of or prior to an inspection specifying reasonable cause for the inspection. Such notice may be given in person or by telephone, facsimile or email. 10. Notices. Except as otherwise stated herein or unless applicable law requires use of another method, any notice that a party hereto desires or is required to give to the other party shall be given by depositing same with the U.S. Postal Service, Certified Mail Return Receipt Requested postage prepaid and directed to the address set forth below or such other address that parties may designates by notice to each other from time to time. Any such notice shall be deemed to have been delivered within three (3) business days (Monday through Friday excluding federal holidays) when given as provided in this paragraph. The addresses of the parties for purposes of this notice provision until further notice are as follows: Mortgagee: 1425 Southwest 14 Street, Cape Coral, Florida 33991 Mortgagor: PO Box 7574, Jackson Wyoming 83002 First Mortgage (Boswell /Dice Trust) Page 6 of 7 00359 11. No Waiver of Rights by Mortgagee. Exercise of any of the rights hereunder by Mortgagee shall not be a waiver of any other right or remedy that Mortgagee may have under equity or law, and the parties agree that all of Mortgagee's rights and remedies shall be cumulative. 12. Mortgagee's Assignment. This Mortgage is freely assignable by Mortgagee without the prior written consent of Mortgagor. 13. No Limitation of Mortgagee's Rights. Nothing in this Mortgage or the Note does or is intended to limit any remedy, right, cause of action, or claim by Mortgagee against Mortgagor for breach of the terms of this Mortgage or the Note, and any remedy set forth in this Mortgage or the Note is in addition to all other legal and equitable remedies available to Mortgagee. 14. Legislation Affecting Mortgagee's Rights. If the enactment or expiration of applicable laws has the effect of rendering any provision of the Note or this Mortgage unenforceable according to its terms, Mortgagee, at its option, may require immediate payment in full of all sums secured by this Mortgage and may invoke any remedies permitted by this Mortgage. 15. Governing Law. This Mortgage has been executed by Mortgagor delivered to Mortgagee in the State of Wyoming is to be construed and enforced according to the laws of the State of Wyoming without regard to Wyoming's law on conflict of laws. 16. Binding Agreement. The covenants and agreements herein contained shall bind, and inure to the benefit of the respective heirs, devisees, legatees, executors, administrators, successors, and assigns of the Mortgagor and the Mortgagee. Whenever used, the singular number shall include the plural and the plural the singular, and the use of any gender shall include all genders. IN WITNESS WHEREOF, this Mortgage has been executed by the Mortgagor effective the date set forth on the Note secured hereby. Adam L. Boswell STATE OF 64i/c9-97 SS. COUNTY OF The foregoing instrument was acknowledged before me by Adam L. Boswell and Diane M. Boswell this day of 20 l/ Witness my hand and official seal. R. SCOTT GARLAND NOTARY PUBLIC AbouNTY OF 1 STATE OF TETON:� WYOMING MY COMMISSION EXPIRES: JUNE 24, 2015 Notary Public My commission expires: J 7 aiut 5/ .90 First Mortgage (Boswell/Dice Trust) Page 7 of 7