HomeMy WebLinkAbout906128THIRD MORTGAGE
This Mortgage is made the 1st day of December, 2004, by and between Mark A.
Miles, hereinafter referred to as the "Mortgagor", and Deborah A. Hickman, formerly
known as Deborah A. Miles, hereinafter referred to as "Mortgagee".
The Mortgagor, for and in consideration of One Hundred Thirty Thousand
Dollars ($130,000.00) and other valuable consideration, loaned to the Mortgagor by the
Mortgagee, the receipt of which is hereby confessed and acknowledged, does hereby
mortgage to the Mortgagee forever, the following described real and personal
property situate in the County of Lincoln, State of Wyoming:
Lot 76 of Alpine Village Subdivision No. 1, Plat 2, Amended, Third Filing,
according to that Plat filed in the Office of the Lincoln County Clerk on
November 29, 2001 as Plat No. 188-F, Instrument No. 877633; and
Lot 77 of Alpine Village Subdivision No. 1, Plat 2, Amended, Third Filing,
according to that Plat filed in the Office of the Lincoln County Clerk on
November 29, 2001 as Plat No. 188-F, Instrument No. 877633.
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 there to; subject, however, to all covenants, conditions,
easements, and rights-of-way, and to mineral, mining and other exceptions,
reservations and conditions of record.
Mortgagor covenants that at the signing and delivery of this Mortgage, said
Mortgagor is lawfully possessed of said personal property; is lawfully seized as tenant
in common 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 tenant in
common interest in the property; and warrants and will defend the title to all of said
interest in the property against all lawful claims and demands, and that the same is free
from all encumbrances, except for a First Mortgage on Lot 77 with The Bank of Jackson
Hole, a Second Mortgage on Lot 77 with The Provident Bank and a First Mortgage on
Lot 76 with The Provident Bank.
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 Thirty Thousand
Dollars ($130,000.00) together with interest thereon at the rate of six percent (6%) per
annum from the date hereof until paid, according to the conditions of a Promissory
Note of even date herewith, which Promissory Note was executed and delivered by the
Mortgagor to the Mortgagee, which sum or sums of money the Mortgagor hereby
RECEIVED 1/28/2005 at 11:18 AM
RECEIVING # 906128
BOOK: 577 PAGE: 884
JEANNE WAGNER
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. 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 right to pay 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
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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. Third Mortgage. Mortgagor will not enter into or consent to
any extension, renewal, replacement, increase in balance, amendment or modification
of the First Mortgage on Lot 77 with The Bank of Jackson Hole,' the Second Mortgage
on Lot 77 with The Provident Bank, nor the First Mortgage on Lot 76 with The
Provident Bank, 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
Second 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 Second Mortgage and may take action to enforce the obligations of the Mortgagor
thereunder, and the Mortgagee is hereby granted full power and authority to cure any
default of the Mortgagor under the First Mortgage or Second Mortgage and the
indebtedness secured thereby and may take any action deemed by the Mortgagee to be
necessary or desirable in obtaining a full or partial release of the property secured
hereby from the lien of the First Mortgage or Second Mortgage, in each case with full
rights of subrogation under the First Mortgage or Second Mortgage as the case may be,
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 or
Second 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 or Second Mortgage and of any other notices or
communications from the Mortgagee thereunder.
7. Insurance. As collateral and further security for the payment of the
indebtedness hereby secured, Mortgagor shall keep the improvements now existing or
hereinafter erected on said premises insured against loss by fire, with extended
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coverage provisions, to the full insurable value thereof for the term of this Mortgage,
and will pay when due all premiums on such insurance. All insurance shall be carried in
responsible insurance companies licensed in V~;yomin§ and the policies and renewals
thereof shaH, at Mortgagee's request, have attached thereto by rider or otherwise loss
payable clauses in favor of the mort§a§e holders and Mortgagee. A copy of said policy
or any renewal documents pertaining thereto shall be supplied to the Mortgagee within
30 days after the date of execution of this mortga§e and thereafter within l0 days of
any renewal of or amendment to such policy. In the event of foreclosure of this
mortgage or other transfer of title to the said premises in extinguishment of the
indebtedness secured hereby, all right, title and interest of the Mortga§or in and to any
insurance policies then in force shall pass to the purchaser or grantee.
8. 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 teat 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
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 sekured by this
Mortgage.
9. 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 thirty (30) 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
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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.
10. 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
the Mortgagee shall be entitled to a deficiency judgment.
11. Assignment of Rents. If the right of foreclosure accrues as a result of
any default hereunder, the Mortgagee shall at once become 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
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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 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.
12. 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 therefor
related to Mortgagee's interest in the property.
13. Condemnation. The proceeds of any award or claim for damages, 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 and
shall be paid to Mortgagee. In the event of a total taking of the property, the proceeds
shall be applied to the sums secured by this Mortgage with the excess, if any, paid to
Mortgagor. In the event of a partial taking of the property, unless Mortgagor and
Mortgagee otherwise agree in writing, there shall be applied to the sums secured by
this Mortgage such proportion 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 condemnor offers to
make an award or settle a claim for damages, Mortgagor fails to respond to Mortgagee
within 30 days after the date such notice is mailed. Mortgagee is authorized to collect
and apply the proceeds, at Mortgagee's option, either to restoration or repair of the
property or to reduce the sums secured by this 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.
14. Statement. The Mortgagee, within ten (10) days upon request in person
or within thirty (30) days upon request by mail, will furnish a written statement duly
acknowledged of the amount due on this Mortgage and whether any offsets or
defenses exist against the mortgage debt.
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15. 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 X
Jackson, WY 83002
Mortgagee: 3711 West 68th Ave., Apt. 301F
Westminster, CO 80030
16. Headings. The headings used in this Mortgage are for convenience
only and are not to be used in its construction.
17. 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.
IN WITNESS WHEREOF, the said Mortgagor has hereunto signed and sealed
these presents the day and year first above written.
STATE OF WYOMING )
) SSo
COUNTY OF TETON )
Mark A. Miles
The fo:[ogoing in~t_rument was acknowledged before me by Mark A. Miles this
· day of I\]O 04> v~U~/x_· , 2004.
WITNESS my hand and official seal,
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