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HomeMy WebLinkAbout977031 Hit11~ =====c 977031 6/13/2014 2:47 PM LINCOLN COUNTY FEES: $54.00 PAGE 1 OF 15 and itle BOOK: 834 PAGE: 125 MORTGAGE JEANNE WAGNER, LINCOLN COUNTY CLERK Company 11 11 III III IIII111111111I III I1III11IIIIIIIIIIIIIIIIIIIII11 SINCE 1904 MORTGAGE THIS MORTGAGE is made on the 64k day of June, 2014, by TIMOTHY W. HABERBERGER and CYNTHIA L. HABERBERGER, P.O. Box 3051, Alpine, Wyoming 83128, hereinafter jointly referred to as "Mortgagor'. Mortgagor does hereby mortgage, grant and convey to EDWIN G. McNEEL and FLORENCE M. McNEEL, TRUSTEES of the McNEEL FAMILY TRUST u/t%a dated March 22, 1995, P.O. Box 3031, Alpine, Wyoming 83128, hereinafter jointly referred to as "Mortgagee with power of sale, certain real property located in Lincoln County, Wyoming, more specifically described below, upon the terms and conditions set forth below. Mortgagor, for and in consideration of the sum of Four Hundred Dollars ($400,000.00) lawful money of the United States and other valuable consideration, loaned to Mortgagor by Mortgagee, evidenced by a Secured Promissory Note of even date herewith, tie receipt of which is hereby confessed and acknowledged, does hereby mortgage to Mort;:;agee forever, the following described real property situate in the Town of Thayne, County o'.� Lincoln, State of Wyoming: See attached legal description. marked Exhibit "A Together with all buildings and improvements thereon, or which may hereafter be placed thereon; all fixtures now or hereafter attached to said premises: and all easements, appurtenances and incidents now or hereafter belonging or appertaining there to; subject, however, to all covenants, conditions, easements, and right -of -way, and to all exceptions, reservations and conditions of sight and /or of record. Subject also to life estates for Edwin G. McNeel and Florence M. McNeel for their use and enjoyment of the house on the property and the yard surrounding the house, and for ingress and egress from U.S. Highway 89 to the house and the yard. Edwin G. McNeel and Florence M. McNeel shall maintain the house in proper repair and keep the house insured during said life estate. Hereinafter referenced as the "Property'. Subject also to the Mortgage to First Bank Alpine on the Property, s aid Mortgage being that which was recorded immediately prior to the recording of this Mortgage. Mortgagor covenants that at the signing and delivery of the Mortgage, said Mortgagor is lawfully seized in fee simple of the Property, or has such other estate as is stated herein; has MORTGAGE HABERBERGER McNEEL, TRUSTEES PAGE 1 OF 14 good and lawful right to mortgage, sell and convey all of the Property; and that the same is free from all encumbrances. However, this Mortgage is subject to the express condition that if Mortgagor pays, or causes to be paid, to Mortgagee the sum of Four Hundred Thousand Dollars (S400,000.00), with interest, according to the conditions of the Secured Promissory Note of even date, which Secured Promissory Note was executed and delivered by Mortgagor to Mortgagee, wh,.ch sum or sums of money Mortgagor hereby covenants to pay, and until such payment, performs all of the covenants and agreements herein to be performed by Mortgagor, then this '_✓Iortgage and said note shall cease and be null and void. Mortgagor further covenants and agrees as follows: 1. Payment Late Payments. Mortgagor shall pay the indebtedness as herein provided, in U.S. currency, and the lien of this instrument shall remain in full f rce and effect during any postponement or extension of time of payment of any part or the indebtedness secured hereby. Payments are deemed received by Mortgagee when received at the location designated in the Promissory Note or at such other location as may be designated by Mortgagee in accordance with the notice provisions in Section 18. Mortgagee may return any payment or partial payment if the payment or partial payments are insufficient to bring the Promissory Note current. Mortgagee may accept any payment or partial payment insufficient to bring tl Promissory Note current, without waiver of any rights hereunder or prejudice to its rights to refuse such payment or partial payments in the future, but Mortgagee is not obligated to apply su :h payments at the time such payments are accepted. If each payment is applied as of its scheduled due date, then Mortgagee need not pay interest on unapplied funds. Mortgagee may hold such unapplied funds until Mortgagor makes payment to bring the Promissory Note current. If Mortgagor does not do so within a reasonable period of time, Mortgagee shall either apply such fund S or return them to Mortgagor. If not applied earlier, such funds will be applied to the outstanding principal balance under the Promissory Note immediately prior to foreclosure. No offsct or claim which Mortgagor might have now or in the future against Mortgagee shall relie\ e Mortgagor from making payments due under the Promissory Note and this Mortgage or performing, the covenants and agreements secured by this Mortgage. Except as otherwise described in this Section 2, all payments accepted and applied by Mortgagee shall be applied in the following order of priority: a) interest due under the Promissory Note; (b) principal due under the Promissory Note; (c) amounts due under Section 7. Such payments shall be applied to each payment in the order in which it became due. Any remaining amounts shall be applied first to late charges, second to any other amounts due under this Mortgage, and then to reduce the principal balance of the Promissory Note. If Mortgagee receives a payment from Mortgagor for a delinquent payment which includes a sufficient amount to pay any late charge due, the payment may be applied to the delinquent payment and the late charge. If more than one payment is outstanding, Mortgagee may apply any payment received from Mortgagor to the repayment of the payments if, and to the MORTGAGE HABERBERGER /McNEEL,TRUSTEES PAGE 2 OF 14 extent that, each payment can be paid in full. To the extent that any excess exists after the payment is applied to the full payment of one or more payments, such excess may be applied to any late charges due. Any application of payments or insurance proceeds to principal due under the Promissory Note shall not extend or postpone the due date, or change the amount, of a payment. 2. Prepayments. Mortgagor shall have the privilege of paying a:Iy principal sum or sums plus accrued interest, in addition to the payments herein required, a: arty time without premium or penalty of any kind, and it is understood and agreed that any such prepayment shall be credited first to interest and the balance to principal in the inverse order of when due. 3. Transfer of the Property Due on Sale. 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, which consent may be a partial release of this Mortgage as provided herein, 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 in.mediately due and payable. Any delay or failure on the part of Mortgagee to demand such payment shall not prejudice Mortgagee's right there to. Mortgagee shall have waived such opt .on 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 teens or conditions of this Mortgage as may be requested by Mortgagee in exchange for Mortgagee agreeing to an assumption of the this Mortgage. 4. Taxes and Assessments. Mortgagor shall pay all taxes, assessments, charges, fines, and impositions attributable to the Property which can attain priority over this Mortgage, leasehold payments or ground rents on the Property, if any, and community association dues, fees, and assessments, if any. Mortgagor shall promptly discharge any lien which has priority over tl.is Mortgage unless Mortgagor: (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Mortgagee, but only so long as Mortgagor is performing such agreement; (b) contests the lien in good faith by, or defends against enforcement of the lien ir., legal proceedings which in Mortgagee's opinion operate to prevent the enforcement of the lien while those proceedings are pending, but only until such proceedings are concluded; or (c) secures from the holder of the lien an agreement satisfactory to Mortgagee subordinating the lien to this Mortgage. If Mortgagee determines that any part of the Property is subject io a lien which can attain priority over this Mortgage, Mortgagee may give Mortgagor a notice identifying the lien. Within ten (10) days of the date on which that notice is given, Mortgagor shall satisfy the lien or take one or more of the actions set forth above in this section. 5. Preservation, Maintenance and Protection of the Property; Inspections. Mortgagor shall not destroy, damage or impair the Property, allow the Property to deteriorate or commit waste on the Property. Whether or not Mortgagor is residing in the Property, Mortgagor MORTGAGE HABERBERGER McNEEL, TRUSTEES PAGE 3 OF 14 shall maintain the Property in order to prevent the Property from deteriorating or decreasing in value due to its condition. Unless it is determined pursuant to Section 6 that repair or restoration is not economically feasible, Mortgagor shall promptly repair the Property if damaged to avoid further deterioration or damage. If insurance or condemnation proceeds are paid in connection with damage to, or the taking of, the Property, Mortgagor shall be responsible for repairing or restoring the Property only if Mortgagee has released proceeds for such purposes. Mortgagee may disburse proceeds for the repairs and restoration in a single paymen t or in a series of progress payments as the work is completed. If the insurance or condemnation proceeds are not sufficient to repair or restore the Property. Mortgagor is not relieved of Mortgagor's obligation for the completion of such repair or restoration. Mortgagee or its agent may make reasonable entries upon and inspections of the Property. If it has reasonable cause, Mortgagee may inspect the interior of the improvements on the Property. Mortgagee shall give Mortgagor notice at the time of or prior to Such an interior inspection specifying such reasonable cause. 6. Insurance. Excluding the home and yard during Mortgagees' life estate, which Mortgagees shall keep insured for the full value thereof during the period of that life estate, Mortgagor shall comply with the insurance requirements set forth below. As collateral and further security for the payment of the indebtedness hereby secured, Mortgagor shall keep the improvements now existing or hereinafter 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, to the full insurable value thereof for the term of this Mortgage, and will pay when due all premiums on such insurance. This insurance shall be maintained in the ,:mounts (including deductible levels) and for the periods that Mortgagee requires. What Mortgagee requires pursuant to the preceding sentences can change during the term of the Loan. 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 unreasonab If Mortgagor fails to maintain any of the coverages described above, ivlortgagee may obtain insurance coverage. at Mortgagee's option and Mortgagor's expense. \'Iortgagee is under no obligation to purchase any particular type or amount of coverage. Therel iore, 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 amounts disbursed by Mortgagee under this section shall become additional debt of Mortgagor secured by this Mortgage. These amounts shall bear interest at the Promissory Note rate from the date of disbursement and shall be payable, with such interest, upon notice from Mortgagee to Mortgagor requesting payment. All insurance policies required by Mortgagee and renewals of such policies shall be carried in responsible insurance companies licensed in Wyoming, shall be subject to Mortgagee's right to disapprove such policies, shall include a standard mortgage clause, and MORTGAGE HABERBERGER /McNEEL,TRUSTEES PAGE 4 OF 14 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. In the event of loss, Mortgagor shall give prompt notice to the insurance carrier and Mortgagee. Mortgagee may make proof of loss 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 the restoration or repair is economically feasible and Mortgagee's security is not lessened. During such repair and restoration period, Mortgagee shall have tit( right to hold such insurance proceeds until Mortgagee has had an opportunity to inspect such Prcperty 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 Wyoming 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 Mor,ngor. If the restoration or repair is not economically feasible or Mortgagee's security would he lessened, the insurance proceeds shall be applied to the sums secured by this Mortgage, v, hether or not then due, with the excess, if any, paid to Mortgagor. Such insurance proceeds sha.1 be applied in the order provided for in Section 1. 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 (30) day period will begin when the notice is given. In either event, or if Mortgagee acquires the Property under foreclosure or otherwise, Mortgagor hereby assigns to Mortgagee (a) Mortgagor's right! to any insurance proceeds in an amount not to exceed the amounts unpaid under the Promi ssory Note or this Mortgage; and (b) any other of Mortgagor's rights (other than the right to any -eftnd of unearned premiums paid by Mortgagor) under all insurance policies covering the Prope °ty, insofar as such rights are applicable to the coverage of the Property. Mortgagee may use the nsurance proceeds either to repair or restore the Property or to pay amounts unpaid under the Promissory Note or this Mortgage, whether or not then due. 7. Protection of Mortgagee's Interest in the Property and l::iglits Under this Mortgage. If: (a) Mortgagor fails to perform the covenants and agreements contained in this Mortgage. (b) there is a legal proceeding that might significantly affect Mortgagee's interest in the Property and /or rights under this Mortgage (such as a proceeding in bankruptcy, probate, for condemnation or forfeiture, for enforcement of a lien which may attain priority over this Mortgage or to enforce laws or regulations), or (c) Mortgagor has abandoned the Property, then Mortgagee may do and pay for whatever is reasonable or appropriate to protect Mortgagee's MORTGAGE 11AI3ERBERGER McNEEL, TRUSTEES PAGE 5 OF 14 interest in the Property and rights under this Mortgage, including protecting ar.d /or assessing the value of the Property, and securing and /or repairing the Property. Mortgagee's actions can include, but are not limited to: (a) paying any sums secured by a lien which has priority over this Mortgage; (b) appearing in court; and (c) paying reasonable attorneys' fees to protect its interest in the Property and /or rights under this Mortgage, including its secured position in a bankruptcy proceeding. Securing the Property includes, but is not limited to, entering the Property to make repairs, change locks, replace or board up doors and windows, drain water from pipes, eliminate building or other code violations or dangerous conditions, and have utilities turned on or off. Although Mortgagee may take action under this section, Mortgagee does not have to do so and is not under any duty or obligation to do so. It is agreed that Mortgagee incurs no liability for not taking any or all actions authorized under this section. Any amounts disbursed by Mortgagee under this section shall become additional debt of Mortgagor secured by this Mortgage. These amounts shall bear interest at th:, Promissory Note rate from the date of disbursement and shall be payable, with such interest. upon notice from Mortgagee to Mortgagor requesting payment. 8. Assignment of Miscellaneous Proceeds; Forfeiture. Any compensation, settlement, award of damages, or proceeds paid by any third party (other than nsurance proceeds paid under the coverages described in Section 6) for: (i) damage to, or lest action of, the Property; (ii) condemnation or other taking of all or any part of the Property; (iii) conveyance in lieu of condemnation; or (iv) misrepresentations of, or omissions as to, the value and /or condition of the Property, hereinafter referred to as "Miscellaneous Procc.ed are hereby assigned to and shall be paid to Mortgagee. If the Property is damaged, such Miscellaneous Proceeds shall be applied to restoration or repair of the Property, if 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 Miscellaneous Proceeds until Mortgagee has had an opportunity to inspect such Property to ensure the work has been completed to Mortgagee's satisfactior. provided that such inspection shall be undertaken promptly. Mortgagee may pay for the rep.:Iirs and restoration in a single disbursement or in a series of progress payments as the work is cor:rpleted. Unless an agreement is made in writing or Wyoming law requires interest to be paid on such Miscellaneous Proceeds, Mortgagee shall not be required to pay Mortgagor any interest or earnings on such Miscellaneous Proceeds. If the restoration or repair is not economically feasible or Mortgagee's security would be lessened, the Miscellaneous 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 Miscellaneous Proceeds shall be applied in the order provided for in Section 1 In the event of a total taking, destruction, or loss in value of the Property, the Miscellaneous Proceeds shall be applied to the sums secured by this Mortgage, whether or not then due, with the excess, if any, paid to Mortgagor. In the event of a partial taking, destruction, or loss in value of the Property in which the fair market value of the Property immediately before the partial taking, destruction, or loss in value is equal to or greater than the amount of the sums secured by this Mortgage immediately MORTGAGE IIABERBERGER MCNEEI., TRUSTEES PAGE 6 OF 14 before the partial taking, destruction, or loss in value, unless Mortgagor and Mortgagee otherwise agree in writing, the sums secured by this Mortgage shall be reduced by the amount of the Miscellaneous Proceeds multiplied by the following fraction: (a) the total amount of the sums secured immediately before the partial taking, destruction, or loss in value divided by (b) the fair market value of the Property immediately before the partial taking, destruction, or loss in value. Any balance shall be paid to Mortgagor. In the event of a partial taking, destruction, or loss in value of the Property in which the fair market value of the Property immediately before the partial taking, destruction, or loss in value is less than the amount of the sums secured immediately before the partial taking, destruction, or loss in value, unless Mortgagor and Mortgagee otherwise agree in writing, the Miscellaneous Proceeds shall be applied to the sums secured by this Mortgage whether or not the sums are then due. If the Property is abandoned by Mortgagor, or if, after notice by Mortgagee to Mortgagor that the Opposing Party (as defined in the next sentence) offers to make an award to settle a claim for damages, Mortgagor fails to respond to Mortgagee within thirty (30) days after the date the notice is given, Mortgagee is authorized to collect and apply the Miscellareous Proceeds either to restoration or repair of the Property or to the sums secured by this Mortgage, whether or not then due. "Opposing Party' means the third party that owes Mortgagor Miscellaneous Proceeds or the party against whom Mortgagor has a right of action in regard_ to Miscellaneous Proceeds. Mortgagor shall be in default if any action or proceeding, whether civil or criminal, is begun that, in Mortgagee's judgment. could result in forfeiture of the Property or other material impairment of Mortgagee's interest in the Property or rights under this Mortgage. Mortgagor can cure such a default and, if acceleration has occurred, reinstate as provided herein, by causing the action or proceeding to be dismissed with a ruling that, in Mortgagee's judgment, precludes forfeiture of the Property or other material impairment of Mortgagee's interest in Ihe Property or rights under this Mortgage. The proceeds of any award or claim for damages that are attributable to the impairment of Mortgagee's interest in the Property are hereby assigned and shall be paid to Mortgagee. All Miscellaneous Proceeds that are not applied to restoration or rep; :tir of the Property shall be applied in the order provided for in Section 1. 9. Default. If Mortgagor defaults in the payment of the indebtedness hereby secured, for a period of 30 (thirty) days after written notice, or if Mortgagor removes or attempts to remove any of said improvements contrary to the provisions of this Mort! ;age, 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 paya:lle pursuant to the provisions hereof, shall, at the option of Mortgagee, become immediately due and payable, anything herein or in said note to the contrary notwithstanding, and failure to exercise the same in a default shall not preclude such exercise in the event of any subsequent default The written notice of default shall specify: (a) the default; (b) the acti, ,n required to cure MORTGAGE HABERBERGER McNEEL, TRUSTEES PAGE 7 OF 14 the default; (c) a date, not less than thirty (30) days from the date the notice is given to Mortgagor, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Mortgage and sale of the Property. The notice shall further inform Mortgagor of the right to reinstate after acceleration and the right to bring a court action to assert the non- existence of a default or any other defense of Mortgagor to acceleration and sale. If the default is not cured on or before the date specified in the notice, Mortgagee at its option may require immediate payment in full of all sums secured by this Mortgage without further demand and may invoke the power of sale and any other remedies at law or in equity permitted by Wyoming law. Mortgagor hereby grants Mortgagee the power to foreclose by advertisement and sale as provided by statute. Mortgagee shall be entitled to collect all expenses incurred in pursuing the remedies provided in this section, including, l.ut not limited to, reasonable attorneys' fees and costs of title evidence. If Mortgagee invokes the power of sale, Mortgagee shall give notice o irr:ent to foreclose to Mortgagor and to the person in possession of the Property, if different, :n accordance with Wyoming law. Mortgagee shall give notice of the sale to Mortgagor in the manner provided herein. Mortgagee shall publish the notice of sale, and the Property shall be sold in the manner prescribed by Wyoming law. Mortgagee or its designee may purchase the P operty at any sale. The proceeds of the sale shall be applied in accordance with Wyoming law. All remedies provided in this Mortgage are distinct and cumulative to ar y other right or remedy under this Mortgage or afforded by law or equity and may be exercised concurrently, independently or successively. The failure of 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. 10. Insufficiency of Foreclosure Proceeds. If the Property is sold under foreclosure and the proceeds are insufficient to pay the total indebtedness hereby secured, Mortgagor executing the Promissory Note for which this Mortgage is security shall be personally bound to pay the unpaid balance, and Mortgagee shall be entitled to a deficiency judgrr ent. 11. Assignment of Rents. If the right of foreclosure accrues as a result of any default hereunder, Mortgagee shall at once become entitled to exclusive possession, use and enjoyment of the Property, and to all rents, issues and profits thereof, from the accruing o such right and during the pendency of foreclosure proceedings and the period of red.:;mftion, and such possession, rents, issues and profits shall be delivered immediately to Mortgagee on request. On refusal, Mortgagee may enforce the delivery of such possession, rents, issue; and profits by any appropriate suit, action or proceeding. Mortgagee shall be entitled to a Receiver for said property and all rents, issues and profit 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 Mortgagor, or the then owner of the Property, and without re .,ard to the value of the Property, or the sufficiency thereof to discharge the Mortgage debt and foreclosure costs, fees MORTGAGE HABERBERGER /McNEEL,TRUSTEES PAGE 8 OF 14 and expenses. 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 Mortgagor. All rents, issues and profits, income and revenue of the Property shall be applied by such Receiver according to law and the orders and directions of the court. 12. Transfer of the Property or a Beneficial Interest in Mortgagor. As used in this section. "Interest in the Property' means any legal or beneficial interest in the Property, including, but not limited to, those beneficial interests transferred in a bond for deed, contract for deed, installment sales contract or escrow agreement, the intent of which is the transfer of title by Mortgagor at a future date to a purchaser. If all or any part of the Property or any Interest in the Property is sold or transferred (or if Mortgagor is not a natural person and a beneficial interest in Mortgagor is ,,old or transferred) without Mortgagee's prior written consent. Mortgagee may require immediate payment in full of all sums secured by this Mortgage. If Mortgagee exercises this option, Mortgagee shall give Mortgagor notice of acceleration. The notice shall provide a period of not less than thirty (30) days from the date the notice is given as provided herein within which Mortgagor must pay all sums secured by this Mortgage. If Mortgagor fails to pay these sums prior to the expiration of this period, Mortgagee may invoke any remedies permitted by this Mortgage without further notice or demand on Mortgagor. 13. Mortgagor's Right to Reinstate After Acceleration. If Mortgagor meets certain conditions, Mortgagor shall have the right to have enforcement of this Mortgage discontinued at any time prior to the earliest of: (a) five (5)days before sale of the Property pursuant to any power of sale contained in this Mortgage; (b) such other period as Wyoming law might specify for the termination of Mortgagor's right to reinstate: or (c) entry of a judgement enforcing this Mortgage. Those conditions are that Mortgagor: (a) pays Mortgagee all sums which then would be due under this Mortgage and the Promissory Note as if no acceleration had occurred; (b) cures any default of any other covenants or agreements; (c) pays all expenses incurred in enforcing this Mortgage, including, but not limited to, reasonable attorneys' fees. property inspection and valuation fees, and other fees incurred for the purpose of protecting Mortgagee's interest in the Property and rights under this Mortgage; and (d) takes such action as Mortgagee may reasonably require to assure that Mortgagee's interest in the Property and rights under his Mortgage, and Mortgagor's obligation to pay the sums secured by this Mortgage. shall cc:ntinue unchanged. Mortgagee may require that Mortgagor pay such reinstatement sums and expenses in one or more of the following forms, as selected by Mortgagee: (a) cash; (b) money order; (c) certified check, bank check, treasurer's check or cashier's check, provided any such cl 'eel: is drawn upon an institution whose deposits are insured by a federal agency, instrumentality or entity; or (d) electronic funds transfer. Upon reinstatement by Mortgagor, this Mortgage and obligations secured hereby shall remain fully effective as if no acceleration had occurs: ed. However, this right to reinstate shall not apply in the case of acceleration under Section 11. 14. Sale of Note; Change of Loan Servicer; Notice of Grievance. The Promissory MORTGAGE IIABERBERGER McNEEL, TRUSTEES PAGE 9 OF 14 Note or a partial interest in the Promissory Note, together with this Mortgage. can be sold one or more times without prior notice to Mortgagor. A sale might result in a change in the person or entity that collects payments due under the Promissory Note and this Mortgage and performs other obligations under the Promissory Note, this Mortgage, and Wyoming law. If there is a change of the Mortgagee, Mortgagor will be given written notice of the chan ge which will state the name and address of the new Mortgagee and the address to which payments should be made. Neither Mortgagor nor Mortgagee may commence, join, or be joined to any judicial action (as either an individual litigant or the member of a class) that arises from tie other party's actions pursuant to this Mortgage or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Mortgage, until such Mortgagor or Mortgagee has notified the other party (with such notice given in compliance with the r.otice requirements provided herein of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action. The notice of acceleration and opportunity to cure given to Mortgagor pursuant to Section 9 and the notice o: acceleration given to Mortgagor pursuant to Section 11 shall be deemed to satisfy the notice and opportunity to take corrective action provisions of this section. 15. Hazardous Substances. As used in this section: (a) Hazardous Substances" are those substances defined as toxic or hazardous substances, pollutants, or wastes by Environmental Law and the following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides, volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials; (b) "Environmental Law" means federal laws and laws of the jurisdiction where the Property is located that relate to health, safety or environmental protection; (c) "Environmental Cleanup" includes any response action, remedial action. or removal action. as defined in Environmental Law; and (d) an "Environmental Condition" means a condition that can cause. contribute to. or otherwise trigger an Environmental Cleanup. Mortgagor shall not cause or permit the presence, use, disposal, storage, or release of any Hazardous Substances, or threaten to release any Hazardous Substances, on or in the Property. Mortgagor shall not do, nor allow anyone else to do, anything affecting the Property: (a) that is in violation of any Environmental Law, (b) which creates an Environmenta Condition, or (c) which, due to the presence, use, or release of a Hazardous Substance, creates a condition that adversely affects the value of the Property. The preceding two sentences shill not apply to the presence, use, or storage on the Property of small quantities of Hazardous Substances that are generally recognized to be appropriate to normal residential uses and to maintenance of the Property (including, but not limited to, hazardous substances in consumer products). Mortgagor shall promptly give Mortgagee written notice of: (a) any investigation, claim, demand, lawsuit or other action by any governmental or regulatory agenc y or private party involving the Property and any Hazardous Substance or Environmental Law c f w:lich Mortgagor has actual knowledge; (b) any Environmental Condition, including but not limited to, any spilling, leaking, discharge, release or threat of release of any Hazardous Substance; and (c) any condition caused by the presence, use or release of a Hazardous Substance which adversely affects the value of the Property. If Mortgagor learns, or is notified by any governmental or MORTGAGE IIABERBERGER McNEEL, TRUSTEES PAGE 10 OF 14 regulatory authority, or any private party, that any removal or other remediation of any Hazardous Substance affecting the Property is necessary, Mortgagor shall promptly take all necessary remedial actions in accordance with Environmental Law. Nothing he °ein shall create any obligation on Mortgagee for an Environmental Cleanup. 16. 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 therefore related to Mortgagee's interest in the Property. 17. Condemnation. The proceeds of any award or claim for ;lath ages, 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 aid shall be paid to Mortgagor. In the event of a partial taking of the Property, unless Mortgai ;or and Mortgagee otherwise agree in writing, there shall be applied to the sums secured by 1 his Mortgage such proportions 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 condemner offers to make an award or settle a claim for damages, Mortgagor fails to respond to Mortgagee within 30 (thirty) days after the date such notice is mailed, Mortgagee is authorized to collect and apply the proceeds. at Mortgagees o:?tion, either to restoration or repair of the Property or to reduce the sums secured by the 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. 18. Statement. Mortgagee shall, within ten (10) days upon a request made in person, or within thirty (30) days upon request by mail, furnish a written and culy acknowledged statement of the amount due on this Mortgage and whether any offsets or de lenses exist against the mortgage debt. 19. Notices. All notices given by Mortgagor or Mortgagee in ccnnection with this Mortgage must be in writing. Any notice to Mortgagor in connection with t his Mortgage shall be deemed to have been given to Mortgagor when mailed by first class mail 01 when actually delivered to Mortgagor's notice address if sent by other means. Notice to any one Mortgagor shall constitute notice to all Mortgagors. The notice address shall be the adds .,ss set forth below unless Mortgagor has designated a substitute notice address by notice to Mortgagee. Mortgagor shall promptly notify Mortgagee of Mortga change of address. If Mortgagee specifies a procedure for reporting Mortgagor's change of address, then Mortgagor s hall only report a change of address through that specified procedure. There may be only on designated notice address under this Mortgage at any one time. Any notice to Mortgagee shall be given by delivering it or by mailing it by first class mail to Mortgagee's address suited herein unless Mortgagee has designated another address by notice to Mortgagor. Any notice in connection with this Mortgage shall not be deemed to have been given to Mortgagee until actually received by Mortgagee. If any notice required by this Mortgage is also required under Wyoming law, the MORTGAGE 1IABERBERGER /McNEEL,TRUSTEES PAGE 11 OF 14 Wyoming law requirement will satisfy the corresponding requirement under this Mortgage. Mortgagor's Notice Address: Mortgagee's Notice Address: Timothy W. Haberberger Edwin G. McNeel Cynthia L. Haberberger Florence M. McNeel. Trustees P.O. Box 3051 P.O. Box 3031 Alpine, Wyoming 83128 Alpine, Wyoming 83128. 21. Mortgagor Not Released; Forbearance By Mortgagee Not a Wl:iver. Extension of the time for payment or modification of amortization of the sums secured by this Mortgage granted by Mortgagee to Mortgagor or any successor in interest of Mortgagor shall not operate to release the liability of Mortgagor or any successors in interest of Mortgagor. Mortgagee shall not be required to commence proceedings against any successor in interest of Mortgagor or to refuse to extend time for payment or otherwise modify amortization of the sums secured by this Mortgage by reason of any demand made by the original Mortgagor or any successors in interest of Mortgagor. Any forbearance by Mortgagee in exercising any right or remedy including, without limitation, Mortgagee's acceptance of payments from third per entities or successors in interest of Mortgagor or in amounts less than the amount then ;lue shall not be a waiver of or preclude the exercise of any right or remedy. 22. Joint and Several Liability; Co- signers; Successors and Assigns Bound. Mortgagor covenants and agrees that Mortgagor's obligations and liability shall be joint and several. However, any Mortgagor who co -signs this Mortgage but does not execute the Promissory Note (a "co- signer (a) is co- signing this Mortgage only to mortgage, grant and convey the co- signer's interest in the Property under the terms of this Mortgage; (b) is not personally obligated to pay the sums secured by this Mortgage; and (c) agre es that Mortgagee and any other Mortgagor can agree to extend, modify, forbear or make any accommodations with regard to the terms of this Mortgage or the Note without the co- signer's consent. Subject to the provisions of Section 11, any successor in interest of Mortgagor who assumes Mortgagor's obligations under this Mortgage in writing, and is approved by Mortgagee, shall obtain all of Mortgagor's rights and benefits under this Mortgage. Mori :gagor shall not be released from Mortgagor's obligations and liability under this Mortgage unless Mortgagee agrees to such release in writing. The covenants and agreements of this Mortgage shall bind and benefit the successors and assigns of Mortgagee. 23. Headings. The headings used in this Mortgage are for conven. ence only and are not to be used in its construction. 24. Binding Effect and Construction. The covenants herein contained ;hall bind, and the benefits and advantages shall inure to, the respective heirs, devisees, legatees, executors, administrators, successors and assigns of the parties hereto. Whenever used th 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 if more than one. The term "foreclosure" and "foreclose" as used herein shall include the right of forecosure by any suit, MORTGAGE IIABERBERGER McNEEL, TRUSTEES PAGE 12 OF 14 5441-e of 1� y u n4 0.5 COL,,, v:".` SS. COUNTY OF J int r ,i rx ACKNOWLEDGED before me on this, the 11 day of June, 2014. by CYNTHIA L. HABERBERGER. WITNESS my hand and official seal. ....w.....,.....,.„.„.....„0........,:..,.,,...,.......... VICKIE MUNSON NOIARY PUBLI COUlitV Of 2 7 S o f Lincoln MY COMMISSION EXPIRES: c; Dec. Juts NOTARY PUBLIC My Commission expires: 1 A at.,._vib MORTGAGE HABERBERGER /McNEEL,TRUSTEES PAGE 14 OF 14 EXHIBIT "A" That part of the NE/4 SW /4 and that part of the SE/4 SW /4 of Section 3, T36N, R119W, Lii colic County, Wyoming, it being the intent to more correctly describe part of that tract of record in the office cf the Clerk of Lincoln County in Book 303 of Photo, Page 15, as follows: Beginning at a point on the East line of said SE /4 SW /4 N00 °19.2'W, 316.13 feet from the Southeast corner of said SE /4 SW /4; thence continuing x100° 19.2'W, 1024.06 feet, along said East line to the Northeast corner of said SE /4 SW/4; thence N00° 17.6' W, 462.83 feet to a rebar; thence S89 °41.2'W, 695.11 feet to a rebar; thence N15 °15.6' W, 108.20 feet to a point; thence S89 °01.2'W, 47.83 feet to a rebar; thence continuing S89 °01.2'W, 210.78 feet to a point; thence S09 °57.4'E, 414.86 feet to a rebar; thence S12 °36.0'E, 340.75 feet to a rebar; thence S80 °00.7'W, 138.71 feet to a pipe on the F ast right -of -way line of U.S. Highway 89; thence S10 °02 2'E, 113.67 feet, along said right -of -way line, to a point; thence N81 °01.6'E, 117.05 feet to a point; thence S80 °42.3 'E, 132.42 feet to a point; thence S55 °22.0'E, 179.19 feet to a point; thence S33 °53.8'E, 181.38 feet to a point; thence S07 °28.5'E, 136.21 feet to a point thence 838 °21 0'VT, 73.53 feet to a point; thence S24 °40.5'E, 338.00 feet to a point; thence N82 °00.4'E, 356.41 feet to the point: of beginning. Less and Excepting: A parcel of land located in the Northeast 1/4 of the Southwest'/ of Section 3, Township 36 North, Range 119 West of the 6 Principal Meridian, Lincoln County, Wyoming, being a portion of that property recorded in Book 303PR, Page 15, and being more particularly described as follows: B aginn:iog at a 5/8 inch diameter by 16 inch long steel reinforcing bar with aluminum Sury -Kap inscribed, "NELSON ENGR PE/LS 578 which bears North 21 degrees 24 minutes 56 seconds West 193 1.95 feet from the South Y4 cc:mer of Section 3, (BLM type brass cap). Thence South 89 degrees 39 minutes 53 seconds West 56,44 feet to an existing elk fence corner; thence North 10 degrees 37 minutes 47 seconds Nest along said elk fence 105.57 feet to the Southeast corner of the Calhoun Property (a 5/8 inch diameter by 16 inch long steel reinforcing bar wit aluminum Surv-kap inscribed, "NELSON ENGR PE/LS 578"; Thence North 88 degrees 23 Minutes 47 Seconds East 47.69 feet to a 5/8 inch diameter by 16 inch long steel reinforcing bar with aluminum Sury -Kap inscribed NELSON ENGR PE/LS 578 Thence South 15 degrees 05 Minutes 16 seconds East 108.51 feet to the point of beginning. Land Title Company Underwriter Stewart Title Guaranty Company Commitment Schedule A