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HomeMy WebLinkAbout905124MORTGAGE THIS MORTGAGE, made this 1st day of December, 2004, between Michael D. Marble, of Kemmerer, Lincoln County, Wyoming, hereinafter referred to as the "Mortgagor" and James W. Kovach, whose mailing address is 2272 Highway 190, Huntsville, Texas 77340, hereinafter referred to as the "Mortgagee". The Mortgagor, for and in consideration of the sum of One Hundred Forty-six Thousand Seven Hundred Fifty and 80/100 Dollars ($146,750.80), lawful money of the United States, paid to Mortgagor by the Mortgagee, the receipt of which is hereby confessed and acknowledged, does hereby grant, bargain, sell and convey to the Mortgagee forever, the following described real and personal property situate in Sweetwater County, Wyoming: A parcel of hand located in the SW1/4SE1/4 of Section 12, T23N, R112W of the 6th P.M., Lincoln County, Wyoming being more particularly described as follows: SE/4SW/4Se/4, Section 12, Township 23 N, Range 112 W, 6th P.M., Lincoln County, State of Wyoming containing 10 acres more or less Together with all buildings and improvements thereon, or which may hereafter be placed thereon; all fixtures now or hereafter attached to said premises; all water and water rights, ditches and ditch rights, reservoirs and reservoir rights, and irrigation and drainage rights; and all easements, appurtenances and incidents now or hereafter belonging or appertaining thereto; subject, however, to all conditions, easements, and right-of-way, and to mineral and other exceptions, reservations and conditions of record. TO HAVE AND TO HOLD the said real and personal property forever, the Mortgagor hereby relinquishing and waiving all rights under and by virtue of the homestead exemption laws of the State of Wyoming. Mortgagor covenants that at the signing and delivery of this mortgage, said Mortgagor is lawfully possessed of said personal property; is lawfully seized in fee simple of said real property, or has such other estate as is stated herein; has good and lawful right to mortgage, sell and convey all of said property; and warrants and will defend the title to all of said property against all lawful claims and demands, and that the same is free from all encumbrances. This Mortgage is not assumable by any other party or parties unless agreed to, in writing, by the financing party. However, this mortgage is subject to the express condition that if the Mortgagor pays, or causes to be paid, to the Mortgagee the sum of One Hundred Forty-six Thousand Seven Hundred Fifty and 80/100 Dollars ($146,750.80 together With interest thereon at the rate of nine percent (9%) per annum from December 1, 2004, until paid, according to the conditions of a certain promissory note, dated December 1,2004, the ultimate maturity date of which is December 1,2013, which promissory note was executed and delivered by Michael D. Marble, to the Mortgagee, which sum or sums of money the Mortgagor hereby covenants to pay, and until such payment, performs all of the covenants and agreements herein to be performed by Mortgagor, then this mortgage and said note shall cease and be null and void. Mortgagor and Mortgagee further covenant and agree as follows: 1. Mortgagor shall pay the indebtedness as herein provided, and the lien of this instrument shall remain in full force and effect during any RECEIVED 12/9/2004 at 1:28 PM RECEIVING Cf 905124 BOOK: 574 PAGE: 385 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, VVY postponement or extension of the time of payment of any part of the indebtedness secured hereby. 2. Mortgagor shall pay all taxes and assessments levied or assessed against said property. Mortgagor shall provide Mortgagee with a receipt evidencing payment of all taxes and assessments as they become due. 3. 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 ,~~.., reasonable wear and tear excepted, and wil do nothing on, or in ~'~(Jonnection with said property which may impair the security of the Mortgagee hereunder. Mortgagor shall not permit said property, or any part thereof, 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 thereof, from the premises on which the same are situated. 4. As collateral and further security for the payment of the indebtedness hereby secured, Mortgagor shall keep the improvements now existing oi' hereinafter erected on said premises insured against loss by fire, with extended coverage provisions, in a sum ~ot less than the outstanding balance due under the promissory note for the term of this mortgage, and will pay when due all premiums on such insurance. All ~nsurance shall be carried in responsible insurance companies and the policies and renewals thereof shall have attached thereto loss payable clauses in favor of the Mortgagee. The insurance proceeds, or any part thereof, may at the option of the Mortgagee, be applied either to the reduction of the indebtedness hereby secured or paid to the Mortgagor. Additionally, the Mortgagor shall maintain a policy for general liability insurance with 100,00/300,000 limits. Mortgagor shall provide Mortgagee with a copy of said insurance policies and receipts evidencing the payment of the premiums for said policies. 5. If Mortgagor defaults in the payment of the taxes, assessments or other lawful charges or fails to keep the improvements on said premises insured as herein provided, the Mortgagee may, without notice or demand, pay the same or effect such insurance, 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 a_~costs of enforcement or foreclos~.~re, 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 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. 6. If the Mortgagor defaults in the payment of the indebtedness hereby secured, or all any part or installment of principal or interest, for a period of fifteen (15) days after the same shall become due and payable, 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 provision 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 wavier 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 0387 foreclosure sale a proper deed of conveyance of the property so sold. The mortgagor agrees to pay all cost of enforcement of foreclosure, including any reasonable attorney fee. The failure of the Mortgagee to promptly foreclose upon a default shall not prejudice any right of said Mortgagee to foreclose thereafter during the continuance of such default or right to foreclosed in case of further default or defaults. The net proceeds from such sale shall be applied to the payment of (1st) the costs and expenses of the foreclosure and sale, 'ncluding a reasonable attorney fee, and all moneys expended or advanced by the Mortgagee pursuant to the provisions of this mortgage; (2nd) all unpaid taxes, assessments, claims and liens on said property, which are superior to the lien hereof; (3rd) 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. 7. If the property described herein is sold under foreclosure and the proceeds are insufficient to pay the total indebtedness hereby secured, the Mortgagors executing the note or notes for whicl~ this mortgage is security shall be personally bound to pay the unpaid balance, and the Mortgagee shall be entitled to a deficiency judgment. 8. If the right of foreclosure accrues as a result of any default hereunder, the Mortgagee shall at once 5ecome entitled to exclusive possession, use and enjoyment of all property aforesaid, 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, and such possession, rents, issues and profits shall be delivered immediately to the Mortgagee on request. On refusal, the delivery of such possession, rents, issues and profits may be enforced by the Mortgagee by any appropriate suit, action or proceeding Mortgagee shall be entitled to a Receiver for said property and all rents, issues and profits 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 the Mortgagor, or the then owner of said property, and without regard to the value of said property, or the sufficiency thereof to discharge the mortgage debt and foreclosure costs, fees and expense. Such Receiver may be appointed by any court of competent jurisdiction upon ex parte application, notice beir~g hereby expressly waived, and the appointment of any such Receiver on any such application without notice is hereby consented to by the Mortgagor. All rents, issues and profits, income and revenue of said property shall be applied by such Receiver according to law and the orders and directions of the court. 9. 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; and a duly executed and delivered release of this mortgage by any one or more of the Mortgagees shall be a valid and effective release as to all of said Mortgagees, and of said mortgage. 10. The covenants herein contained shall bind, and the benefits and advantages shall inure to, the respective heir$, 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 terms "foreclosure" and "foreclose," as used herein, shall include the right of foreclosure by any suit, action or proceeding at law or in equity, or by advertisement and sale of said premises, or in any other manner now or hereafter provided by Wyoming Statutes, !ncluding the power to sell. L 0S88 IN WITNESS WHEREOF, this mortgage has been executed Mortgagor the date first above written. EL D. MARBLE by the THE STATE OF WYOMING ) LCq ce¢.~ 'SS. County of ~ ) On this day of December, 2004, before me personally appeared Michael Di Marble to me known to be the people described in and who executed the foregoing instrument, and acknowledged that they executed the same as their free act and deed, including the release and waiver of homestead. Given under my.-hand and seal the date first above written. Notary -Public My commission expires: