HomeMy WebLinkAbout902403#30987(02)
This Mortgageis made the 27th da..y,:0f.. ~ .... ?":August..,,. :.;.~:~ , 2004, by ~d
be~een Robert A. Fulton, hereinafter re~ire'd 'to ~As th~e"';.~ortgagor.., ~d Extreme
Construction, Inc., a Wyoming corporation, hereinafter referred to as "Mortgagee".
The Mortgagor, for ~d M consideration of Five Thous~d Dollars ($5,000.00)
law~ money of the UMted States ~d other valuable consideration, lo~ed to the
Mortgagor by the Mortgagee, the receipt of w~ch is hereby co~essed ~d
ac~owledged, does hereby mortgage to the Mortgagee, the following described real
proper~ si~ate in Lincoln County, Wyoming:
Lot 202 of ~ver R~ches FishMg and Equestrian Estates at Freedom, Wyoming,
Second FIlMb LMco~ County, Wyoming according to that plat ~ed March 10,
1999 as Plat No. 383 & 383-A.
Together wi~ all buildMgs ~d improvements thereon, or wMch may hereafter
be placed thereon; all fix~res now or hereafter attached to s~d presses; ~ Water ~d
water rights, ditches and ditch rights, reservoirs and reservoir rights, ~d irrigation ~d
drainage rights; ~d ~ easements, appurtenances and Mcidents now or hereafter
belonging or apperta~g there to; subject, however, to ~ covenants, conditions,
easements, ~d rights-of-way, ~d to mineral, miMng ~d Other exceptions,
reservations ~d conditions of record.
Mortgagor covenants that at the sing ~d delivery of t~s Mortgage, s~d
Mortgagor is lawM~y possessed of s~d personal property; ~ law~ly seized M fee
simple of s~d real property, or has such other estate as is stated herein; has good ~d
law~ right to mortgage, sell ~d convey ~ of said property; ~d warr~ts ~d ~
defend the title to ~ of s~d proper~ against ~ lawM1 claims ~d demands, ~d that
the same is &ee &om all encumbrances.
However, this Mortgage is subject to the express condition that ff the Mortgagor
pays, or causes to be p~d, to the Mortgagee the sum of Five Thous~d Dollars
($5,000.00) together with interest at the rate of 10% per a~um, accordMg to the
conditions of a Promissory NOte (Promissory Note) of even date herewith with an
ultimate ma~ri~ date ten years &om the date hereoL wMch Promissory Note was
executed ~d delivered by the Mortgagor to the Mortgagee, wMch sum or sums of
money the Mortgagor hereby coven~ts to pay, and ~ such payment, performs ~
of the covenants ~d agreements hereM to be performed by Mortgagor, then ~s
Mortgage ~d said note shall cease and be null and void.
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Mortgagor and Mortgagee further covenant and agree as follows:
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1. Payment. Mortgagor shall pay the indebtedness as herein provided,
and the lien of this instrument shall remain in full force and effect during any
postponement or extension of time of payment of any part of the indebtedness secured
hereby.
2. prepayments. The Mortgagor shall have the privilege of paying any
principal sum or sums plus accrued interest, in addition to the payments herein
required, at any 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. If all or any part.of the property or any
interest herein is sold or transferred by any means by Mortgagor without Mortgagee's
prior written consent, excluding the creation of a lien or encumbrance subordinate to
this Mortgage or a transfer by devise, descent or by operation of law upon the death of
a joint tenant, Mortgagee may, at Mortgagee's option, declare all the sums secured by
this Mortgage to be immediately due and payable. Any delay or failure on the part of
the Mortgagee to demand payment shall not prejudice the Mortgagee's right there to.
Mortgagee shall have waived such option to accelerate if, prior to the sale or transfer,
Mortgagee at Mortgagee's sole discretion, enters into a written agreement with the
person whom the property is to be sold or transferred expresslY consenting to such
assumption and setting forth any new terms or conditions of this Mortgage as may be
requested by the Mortgagee in exchange for the Mortgagee agreeing to an assumption
of this Mortgage.
4. Taxes andAssessments. Mortgagor shall pay all taxes and
assessments levied or assessed against said property.
5. Maintenance of Property. Mortgagor shall not commit or permit waste,
nor be negligent in the care of said property, and shall maintain the same in as good
condition as at present, reasonable wear and tear excepted, and will do nothing on or in
connection with said property which may impair the security of the Mortgagee
hereunder. Mortgagor shall not permit said property, or any part hereof, to be levied
upon or attached in any legal or equitable proceeding, and shall not, except with the
consent in writing of the Mortgagee, or as is otherwise provided and permitted in this
Mortgage, remove or attempt to remove said improvements or personal property, or
any part hereof, from the .premises on which the same are situated.
6. Second Mortgage. Mortgagor will not enter into or consent to
any extension, renewal, replacement, increase in balance, amendment or modification
of the First Mortgage with Freedom, L.L.C., as filed on June 28, 2004 in Book $60 at
page 30 in the Office of the Lincoln County Clerk in Kemmerer, Wyoming, or the
indebtedness secured thereby without the prior written consent of the Mortgagee,
except for any modification which in no way adversely affects or might adversely affect
the rights and interests of the Mortgagee hereunder.
The Mortgagor covenants and agrees with the Mortgagee that the Mortgagor
will not permit any default to occur or remain in effect under the First Mortgage or the
indebtedness secured hereby. The Mortgagee shall be deemed to be a third-party
beneficiary of the rights of the Mortgagor. under the First Mortgage and may take
action to enforce the obligations of the Mortgagor thereunder, mud the Mortgagee is
hereby granted ~ power and authority to cure any default of the Mortgagor under
the First Mortgage and the indebtedness secured thereby and may take any action
deemed by the Mortgagee to be necessary or desirable in obtaining a gtll or partial
release of the property secured hereby from the lien of the First Mortgage, in each case
with full rights of subrogation under the First Mortgage, and provided in each case that
the Mortgagee shall be under no obligation to do the same. Any sums advanced by the
Mortgagee with respect to the First Mortgage shall be secured by such subrogation
rights and, to the extent not so secured, shall be deemed to be advanced pursuant to
this paragraph.
The Mortgagor shall promptly notify the Mortgagee of any default or alleged
default under the First Mortgage and of any other notices or communications from the
Mortgagee thereunder.
7. Mortgagee Authorized to Make Payments. If Mortgagor defaults in
the payment of the taxes, assessments or other lawful charges, including any
constrUction loan payments, as herein provided, the Mortgagee may, without notice or
demand, pay the same, and if the Mortgagor fails to keep said property in good repair,
the Mortgagee may make such repairs as may be necessary to protect the property, all
at the expense of the Mortgagor. The MOrtgagor covenants and agrees that all such
sums of money so expended, together with all costs of enforcement or foreclosure, and
a reasonable attorney fee, shall be added to the debt hereby secured, and agrees to
repay the same and all expenses so incurred by the Mortgagee, with interest thereon
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from the date of payment at the same rate as provided in the note hereby secured, until
repaid, and the same shall be a lien on all of said property and be secured by this
Mortgage.
8. Default. If the Mortgagor defaults in the payment of the
indebtedness hereby secured, or any part or installment of principal or interest, for a.
period of twenty (20) days after written notice, or if the Mortgagor removes or
attempts to remove any of said improvements or personal property contrary to the
provisions of this Mortgage, or in case of breach of any covenant or agreement herein
contained, the whole of the then indebtedness secured hereby, both principal and
interest, together with all other sums payable pursuant to the provisions hereof, shall,
at the option of the Mortgagee, become immediately due and payable, anything herein
or in said note to the contrary notwithstanding, and failure to 'exercise said option shall
not constitute a waiver of the right to exercise the same in the event of any subsequent
default. The Mortgagee may enforce the provisions of, or foreclose, this Mortgage by
any appropriate suit, action or proceeding at law or in equity, and cause to be executed
and delivered to the purchaser or purchasers at any foreclosure sale a proper deed of
conveyance of the property so sold. The Mortgagor hereby grants the Mortgagee the
power to foreclose by advertisement and sale as provided by statute. All remedies
provided in this Mortgage are distinct and cumulative to any other right or remedy
under this Mortgage or afforded by law or equity and may be exercised concurrently,
independently or successively. The Mortgagor agrees to pay all costs of enforcement
or foreclosure, including a reasonable attorney fee. The failure of the Mortgagee to
foreclose promptly upon a default shall not prejudice any right of said Mortgagee to
foreclose thereafter during the continuance of such default or right to foreclose in case
of further default or defaults. The net proceeds from such sale shall be applied to the
payment of: first, the costs and expenses of the foreclosure and sale, including a
reasonable attorney fee, and all moneys expended or advanced by the Mortgagee
pursuant 'to the provisions of this Mortgage; second, all unpaid taxes, assessments,
claims and liens on said property, which are superior to the lien hereof; third, the
balance due Mortgagee on account of principal and interest on the indebtedness hereby
secured; and the surplus, if any, shall be paid to the Mortgagor.
9. Sufficiency of Foreclosure Proceeds. If the property described herein
is sold under foreclosure and the proceeds are insufficient to pay the total indebtedness
hereby secured, Mortgagor shall be personally bound to pay the unpaid balance, and
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the Mortgagee shall be entitled to a deficiency judgment.
10. Notices. Notice and demand or request shall be in writing and may
be served either in person or by certified mail, return receipt requested, notice shall be
deemed given when mailed and shall be addressed as follows or at such other address
as either party may from time to time designate in writing:
Mortgagor: P.O. Box 4975
Jackson, WY 83001
Mortgagee: P.O. Box 7479
Jackson, WY 83002
11. Headings. The headings used in this Mortgage are
only and are not to be used in its construction. '
for convenience
12. Binding Effect and Construction. The covenants herein contained shall
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 the singular number shall include the plural, the plural the singular, and
the use of any gender shall include all genders. The term "note" includes all notes herein
described if more than one. The terms "foreclosures" and "foreclose" as used herein,
shall include the right of foreclosure by any suit, action or proceeding at law of in
equity, or by advertisement and sale of said premises, or in any other manner now or
hereafter provided by Wyoming statutes, including the power to sell.
13. Release. The acceptance of this mortgage and the note or notes it
secures, by the Mortgagee shall be an acceptance of the terms and conditions contained
therein. Upon payment of all sums secured by this Mortgage, Mortgagee shall release
this Mortgage without charge to Mortgagor. Mortgagor shall pay all costs of
recordation, if any.
IN WITNESS WHEREOF, the said Mortgagor has hereunto signed and sealed
these presents the day and year first above written._
Robert A. Fulton
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STATE OF WYOMING )
) SS.
COUNTY OF TETON )
The foregoing instrument was acknowledged before me this
,2004 by Robert A. Fulton.
~7-~ day of ~
WITNESS my hand and official seal.
Notary Public
My Commission Expires:
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