HomeMy WebLinkAbout970246Commencing at the southerly most corner of Lot 6 in Block 11 of the original Town
of Kemmerer; thence N 33 °26' E, along the common boundary line between said
Block 11 and Klondyke Street, 39.0 feet to the Point of Beginning;
w w thence N 56 °34' W, along a line parallel with the common boundary of lines of said
g w Lots 5 and 6 of said Block 11, 140.0 feet to a point on the common boundary of said
o 2 Lot 6 and the south or easterly boundary line of the alley of said Block 11;
c thence N 33 °26' E, 11.0 feet to the northerly most comer of said Lot 6;
co n a w thence continuing, N 33°26' E, 25.00 feet to the northerly most corner of said
N
iTS w v Schaffarzick parcel;
5 z
O j o w z thence S 56 °34' E, along a line parallel with the common boundary line between said
v Y O Lots 5 and 6, 140.0 feet to the easterly most comer of said Schaffarzick parcel;
w
V m O thence S 33 °26' W, along the said north or westerly boundary line of Klondyke
CC z Street, 25.0 feet to the southerly most corner of said Lot 5;
MORTGAGE
KNOW ALL PERSONS BY THESE PRESENTS, that David R. Russell, O.D., a Wyoming
Corporation, of 916 Main Street, Evanston, Wyoming 82930, herein referred to as Mortgagor, to
secure the payment of the principal sum of ninety -five thousand dollars ($95,000), together with
interest, as evidenced by a promissory note of even date herewith (the "Note made payable to the
order of Robert D. Schaffarzick and Lynn M. Schaffarzick, of 707 Pearl Street, Kemmerer, WY
83101, herein referred to as Mortgagee or Lender, hereby mortgages to Mortgagee or Lender, all
interest in the real property, situate in the County of Lincoln, State of Wyoming, and more
particularly described as follows, to -wit:
A parcel of land being part of Lots 5 and 6 of Block 11 of the Original Town of Kemmerer, Lincoln
County, Wyoming; and, being part of that particular parcel of land conveyed from Frank W. Klun
to Robert D. Schaffarzick and Lynn Marie Schaffarzick by Warranty Deed as described and recorded
in Book 445PR on page 213 on file in the Lincoln County Clerk's Office herein after referred to as
the Schaffarzick parcel. This parcel being more particularly described as follows:
thence continuing S 33°26' W, 11.0 feet to the point of beginning
Said parcel containing 5,040 square feet, more or less.
including all buildings and improvements thereon or that may hereafter be erected thereon; together
with hereditaments and appurtenances and all other rights thereunto belonging, or in any manner now
or hereafter appertaining, and the reversion and reversions, remainder and remainders, rents, issues,
and profits thereof, and all fixtures now or hereafter attached to the premises. Also known as 816
Klondyke, Kemmerer, WY 83101.
Mortgagor covenants that Mortgagor is lawfully seized of the premises; that the premises are
free from all encumbrances; and hereby covenants to warrant and defend the title of the premises
against the lawful claims of all persons whomsoever.
Mortgagor covenants with Mortgagees as follows:
SECTION ONE
RENTS, ISSUES, AND PROFITS
SECTION TWO
RESTRICTIONS ON TRANSFER; NO FURTHER ENCUMBRANCES
Page 1 of 6
0813
In case of default in any of the payments stipulated in the Note, Mortgagor, as further security
for this mortgage and the Note secured thereby, hereby assigns, sets over, and conveys to Mortgagee
all of Mortgagor's interest in and to all rents, issues, and profits from the property.
SECTION THREE
PAYMENT OF INDEBTEDNESS
SECTION FOUR
GROUND RENTS; TAXES AND ASSESSMENTS
,e1Q1
The Mortgagor shall not, whether voluntarily or involuntarily by operation of law or
otherwise (i) transfer, sell, convey or assign all or any portion of the property, or contract to do any
of the foregoing, including without limitation, enter into options to purchase, installment sales
contracts, land contracts, real estate contracts or contracts for Deed of Trust, (ii) change the legal
possession or use thereof, or (iii) except as provided in this Section, permit the dilution, transfer,
pledge, hypothecation or encumbrance of any ownership interest in the property mortgaged herein.
Except for easements for drainage or utilities, Mortgagor shall not enter into any easement, rights
of way, agreements affecting property lines or similar agreements affecting the property without the
prior written consent of Mortgagee. Such consent shall not be unreasonably withheld. Mortgagor
shall not without the prior written consent of the Mortgagee, directly or indirectly, further encumber
the property, or any part thereof, it being understood by Mortgagor that the property, and all parts
thereof, shall remain free and clear of any and all debt instruments or other obligations for repayment
of money except those given in connection with the loan evidenced by the Note and secured by this
Mortgage.
Mortgagor will pay the indebtedness as provided in the Note. Mortgagor shall have the right
to prepay the principal without penalty.
Mortgagor will pay all ground rents, taxes, assessments, water rents, and other governmental
or municipal charges, or other lawful charges, and will promptly deliver the official receipts therefor
to Mortgagee upon request.
SECTION FIVE
MAINTENANCE OF PROPERTY
Nothing shall be done on or in connection with the property that may impair Mortgagee's
security hereunder; Mortgagor will commit, permit or suffer no waste, impairment or deterioration
of the property or any part thereof, and the property shall be continuously maintained in good and
sightly order, repair and condition by Mortgagor at Mortgagor's expense. Mortgagor shall not
remove any buildings, improvements, or appliances located on the property, and Mortgagor shall not
change the contour of any lands, without the prior written consent of the Mortgagee.
SECTION SIX
HAZARD INSURANCE
Mortgagor will keep the improvements now existing or hereinafter erected on the premises,
insured for fire and extended coverage in an amount equal to at least the full replacement cost
thereof. All insurance shall be carried in reputable companies qualified to do business in the State
of Wyoming, and the policies and renewals thereof shall have attached thereto loss payable clauses
in favor of and in form acceptable to Mortgagee. Mortgagee shall be listed on said insurance as a
named beneficiary by reason of that mortgage. Mortgagor will promptly deliver a copy of all
insurance policies and proof of premium payment upon request. In the event of loss, Mortgagor will
give immediate notice by mail to Mortgagee, who may make proof of loss if not made promptly by
Mortgagor, and each insurance company concerned is hereby authorized and directed to make
payment for such loss to Mortgagor and Mortgagee jointly; the insurance proceeds or any part
thereof may be applied by Mortgagee at Mortgagee's option either to the reduction of the
indebtedness hereby secured or to the restoration or repair of the property damage. In event of
foreclosure of this mortgage or other transfer of title to the premises in extinguishment of the
indebtedness secured hereby, all right, title and interest of Mortgagor in and to any insurance policies
then in force shall pass to the purchaser or grantee. Each policy or other contract for such insurance
shall contain an agreement by the insurer that, not withstanding any right of cancellation reserved
to such insurer, such policy or contract shall continue in force for at least twenty (20) days after
written notice to the Mortgagee of such cancellation.
Page 2 of 6
SECTION SEVEN
CHARGES; LIENS
In case Mortgagor shall default in the payment of ground rents, if any, taxes, assessments,
water or other governmental or municipal charges, insurance premiums, or other lawful charges as
herein provided, Mortgagee may without notice or demand pay the same and in case of any failure
on the part of Mortgagor to comply with the covenants of Section Five thereof, Mortgagee may effect
such repairs as Mortgagee may reasonably deem necessary to protect the property, at the expense of
Mortgagor. Mortgagor shall repay such sums paid and all expenses so incurred by Mortgagee, with
interest thereon from the date of payment, at ten percent (10 per annum, and the same shall be a
lien on the premises and be secured by the above mentioned note and by these presents; in default
of making such repayments the whole amount hereby secured if not then due shall, if Mortgagee so
elect, become due and payable forthwith, anything therein contained to the contrary notwithstanding.
Mortgagor shall file all documents with the Wyoming Secretary of State and maintain the
status of David R. Russell, O.D., a Wyoming Corporation in good standing in the State of Wyoming
at all times this mortgage remains in place. Failure to maintain that corporate status shall be an event
of default.
(1)
(3)
SECTION EIGHT
MAINTAIN CORPORATION IN GOOD STANDING
SECTION NINE
EVENTS OF DEFAULT AND ACCELERATION
A. Events of Default. The terms "Event of Default" or "Events of Default wherever used in
this instrument, shall mean any one or more of the following events:
Failure by Mortgagor to pay within thirty (30) calendar days after due, any sum due
under the Note, this Mortgage, or any payment of tax or insurance deposit or
premium when due; or
(2) Failure by Mortgagor to duly observe, comply with or perform within thirty (30)
calendar days after written notice of such failure is given to Mortgagor of any term,
covenant, condition or agreement of this instrument; or
The filing by Mortgagor of a voluntary petition in bankruptcy or adjudication of
Mortgagor as bankrupt or insolvent, or the filing by Mortgagor of any petition or
answer seeking or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself under any present or
future federal, state or other law or regulation relating to bankruptcy, insolvency or
other relief for debtors, or seeking or consenting to or acquiescing in the appointment
of any trustee, receiver or liquidator of Mortgagor or of all or any substantial part of
the property or of any of the rents, issues, profits or revenues thereof, or the making
by Mortgagor, or either of them, of any general assignment for the benefit of
creditors, or the admission in writing by Mortgagor, or either of them, or their
inability to pay their debts generally as they become due; or
(4) The entry by a court of competent jurisdiction of an order, judgment or decree
approving a petition, filed against Mortgagor, or either of them seeking any
reorganization, arrangement, composition readjustment, liquidation, dissolution or
similar relief for itself under any present or future federal, state or other law or
regulation relating to bankruptcy, insolvency or other relief for debtors, which order,
judgment or decree remains unvacated and unstayed for an aggregate sixty (60) days
(whether or not consecutive) from the date of entry thereof, or the appointment of any
trustee, receiver or liquidator of Mortgagor, or of all or any substantial portion of the
property or of any of rents, issues profits or revenues t hereof without the consent or
acquiescence of Mortgagor, which appointment shall remain unvacated and unstayed
for an aggregate sixty (60) days (whether or not consecutive).
Page 3 of 6
(3)
SECTION TEN
ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES
Mortgagor represents, warrants and agrees that:
Page 4 of 6
0Ot9
B. Acceleration. In case of an Event of Default, the whole of the then indebtedness secured
hereby, inclusive of principal, interest, arrearages, ground rents, if any, taxes, assessments,
water charges, utilities, insurance, expenditures for repairs or maintenance, together with all
other sums payable pursuant to the provisions thereof, shall become immediately due and
payable, at the option of Mortgagee, although the period above limited for the payment
thereof may not have expired, anything herein before or in the Note contained to the contrary
notwithstanding; any failure to exercise such option shall not constitute a waiver of the right
to exercise the same at any other time; and it shall be lawful for Mortgagee to proceed to
enforce the provisions of this mortgage either by suit at law or in equity, as Mortgagee may
elect, or to foreclose this mortgage by advertisement and sale of the premises, at public
auction for cash, according to Wyoming Statutes governing mortgage foreclosures, and cause
to be executed and delivered to the purchaser or purchasers at any such sale, good and
sufficient deed or deeds of conveyance of the property so sold, and to apply the net proceeds
arising from such sale first to the payment of the costs and expenses of such foreclosure and
sale and in payment of all monies expended or advanced by Mortgagee pursuant to the
provisions of Section Seven hereof, and then to the payment of the balance due on account
of the principal indebtedness secured hereby, together with interest thereon, and the surplus
if any, shall be paid by Mortgagee to Mortgagor. There shall be included in any or all such
proceedings a reasonable attorney's fee. In case Mortgagee fails promptly to foreclose on
the happening of any default, Mortgagee shall not thereby be prejudiced in Mortgagee' s right
to foreclose at any time thereafter during which such Event of Default continues, and shall
not be prejudiced in Mortgagee's foreclosure rights in case of further Events of Default.
As used in this section, (1) Environmental Law means, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), all other
federal, state and local laws, regulations, ordinances, court orders, attorney general opinions or
interpretive letters concerning the public health, safety, welfare, environment or a hazardous
substance; and (2) Hazardous Substance means any toxic, radioactive or hazardous material, waste,
pollutant or contaminant which has characteristics which render the substance dangerous or
potentially dangerous to the public health, safety, welfare or environment. The Term includes,
without limitation, any substances defined as "Hazardous material," "toxic substance," "hazardous
waste," "hazardous substance," or "regulated substance" under any Environmental Law.
(1) Except as previously disclosed and acknowledged in writing to Lender, no Hazardous
Substance has been, is, or will be located, transported, manufactured, treated, refined,
or handled by any person on, under or about the Property, except in the ordinary
course of business and in strict compliance with all applicable Environmental Law.
(2) Except as previously disclosed and acknowledged in writing to Lender, Mortgagor
has not and will not cause, contribute to, or permit the release of any Hazardous
Substance on the property.
Mortgagor will immediately notify Lender if (1) a release or threatened release of
Hazardous Substance occurs on, under or about the Property or migrates or threatens
to migrate from nearby property; or (2) there is a violation of any Environmental Law
concerning the Property. In such an event, Mortgagor will take all necessary
remedial action in accordance with Environmental Law.
(4) Except as previously disclosed and acknowledged in writing to Lender, Mortgagor
has no knowledge of or reason to believe there is any pending or threatened
investigation, claim, or proceeding of any kind relating to (1) any Hazardous
Substance located on, under or about the Property; or (2) any violation by Mortgagor
or any tenant of any Environmental Law. Mortgagor will immediately notify Lender
(5)
(9)
I091)
in writing as soon as Mortgagor has reason to believe there is any such pending or
threatened investigation, claim, or proceeding. In such an event, Lender has the right,
but not the obligation, to participate in any such proceeding including the right to
receive copies of any documents relating to such proceedings.
Except as previously disclosed and acknowledged in writing to Lender, Mortgagor
and every tenant have been, are and will remain in full compliance with any
applicable Environmental Law.
(6) Except as previously disclosed and acknowledged in writing to Lender, there are no
underground storage tanks, private dumps or open wells located on or under the
Property and no such tank, dump or well will be added unless Lender first consents
in writing.
Mortgagor will regularly inspect the Property, monitor the activities and operations
on the Property, and confirm that all permits, licenses or approvals required by any
applicable Environmental Law are obtained and complied with.
(8) Mortgagor will permit, or cause any tenant to permit, Lender or Lender's agent to
enter and inspect the Property and review all records at any reasonable time to
determine (1) the existence, location and nature of any Hazardous Substance on,
under or about the Property; (2) the existence, location, nature, and magnitude of any
Hazardous Substance that has been released on, under or about the Property; or (3)
whether or not Mortgagor and any tenant are in compliance with applicable
Environmental Law.
Upon Lender's request and at any time, Mortgagor agrees, at Mortgagor's expense,
to engage a qualified environmental engineer to prepare an environmental audit of
the Property and to submit the results of such audit to Lender. The choice of the
environmental engineer who will perform such audit is subject to Lender's approval.
(10) Lender has the right, but not the obligation, to perform any of Mortgagor's
obligations under this section at Mortgagor's expense.
(11) As a consequence of any breach of any representation, warranty or promise made in
this section, (1) Mortgagor will indemnify and hold Lender and Lender's successors
or assigns harmless from and against all losses, claims, demands, liabilities, damages,
cleanup, response and remediation costs, penalties and expenses, including without
limitation all costs of litigation and attorneys' fees, which Lender and Lender's
successors or assigns may sustain; and (2) at Lender's discretion, Lender may release
this Security Instrument and in return Mortgagor will provide Lender with collateral
of at least equal value to the Property secured by this Security Instrument without
prejudice to any of Lender's rights under this Security Instrument.
(12) Notwithstanding any of the language contained in this Security Instrument to the
contrary, the terms of this section will survive any foreclosure or satisfaction of this
Security Instrument regardless of any passage of title to Lender or any disposition by
Lender of any or all of the Property. Any claims and defenses to the contrary are
hereby waived.
SECTION ELEVEN
MORTGAGEE'S RIGHT OF POSSESSION
In case of any default whereby the right to foreclosure occurs hereunder, Mortgagee shall at
once become entitled to exclusive possession, use and enjoyment of all property, and to all rents,
issues and profits thereof, from the accruing of such right and during the pendency of foreclosure
proceedings and the period of redemption, if there is any; and such possession, rents, issues and
profits shall at once be delivered to Mortgagee on request, and on refusal, the delivery of such
possession, rents, issues and profits may be enforced by Mortgagee by any appropriate civil suit or
Page 5 of 6
proceeding, including action or actions in ejectment or forcible entry, or unlawful detainer; and
Mortgagee shall be entitled to a receiver for the property and the rents, issues and profits thereof,
after any such default, including the time covered by foreclosure proceedings and the period of
redemption, if there is any, and shall be entitled thereto as a matter of right without regard to the
solvency or insolvency of Mortgagor or the then owner of the property or the sufficiency thereof to
discharge the mortgage debt and foreclosure costs, fees and expenses; and such receiver may be
appointed by any court of competent jurisdiction, and all rents, issues, profits, income and revenue
of the property shall be applied by such receiver, according to law and the orders and directions of
the court.
Mortgagor gives to Lender a security interest in all goods that Mortgagor owns now or in the
future and that are or will become fixtures related to the Property.
The covenants herein contained shall bind, and the benefits and advantages shall inure to, the
respective heirs, executors, administrators, successors and assigns of the parties thereto. Whenever
used, the singular number shall include the plural, the plural the singular, and the use of any gender
shall include all genders.
Any waiver by either party hereto of any breach of any kind or character whatsoever by the
other party, whether such waiver be direct or implied, shall not be construed as a continuing waiver
of or consent to any subsequent breach of this agreement on the part of the other party.
All notices, demands, requests and other writings required or permitted to be given hereunder
shall be deemed duly given if hand delivered or if mailed by certified mail, postage prepaid, if
addressed to the parties to their respective addresses stated above. Either party shall have the right
to specify in writing in the manner above provided, another address to which subsequent notices or
writings to such party shall be given. Any notice given hereunder shall be deemed to have been
given as of the date delivered or three (3) days after being mailed.
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be duly executed on this
Z 7- day of March, 2013.
STATE OF WYOMING
)ss.
COUNTY OF LINCOLN
This Mortgage was acknowledged before me this J7 }h day of March, 2013 by David R.
Russell, President of the David R. Russell O.D., Corporation, who swore and affirmed under oath
that he was authorized to so act in behalf of and bind the Corporation.
WITNESS my hand and official seal.
DEBRA A. HANSEN NOTARY
N�O OF
�f y
t iY COMMISSION EXPIRES
SECTION TWELVE
FIXTURE FILING
SECTION THIRTEEN
BINDING EFFECT
SECTION FOURTEEN
WAIVER
SECTION FIFTEEN
NOTICES
DAVID R. RUSSELL, O.D., a Wyoming Corp.
Page 6 of 6
DAVID R. RUSSEL esident of the
DAVID R. RUSSELL, O.D. Corp.
Notary Public
My Commission Expires:
,V,29/j0/ 5
0091