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MORTGAGE
(With Power of Sale)
KNOW ALL MEN BY THESE PRESENTS, that Foothills MHC, LLC, â
Colorado limited company, of 2 West Dry Creek Circle, Suite 200,
Littleton, Colorado, 80120, designated as Mortgagor, to secure
the payment of the principal sum of ONE MILLION DOLLARS,
($1,000,000.00) plus interest accruing at a rate of eight percent
(8%) per annum, as evidenced by a promissory note of even date to
the order of Foothills Kemmerer, LLC., a Wyoming limited
liability company, of 750 Park Avenue NE, 29W, Atlanta, Georgia,
30326-3265 of P.O. Box 1951, Post Falls, Idaho, 83877 herein
designated as Mortgagee, payable as set forth in the promissory
note of even date herewith, hereby mortgages to said Mortgagee,
the following-described Real Property, situated in Lincoln
County, State of Wyoming, (the "Property" or "Premises"), hereby
releasing and waiving all rights under and by virtue of the
homestead exemption laws of the State, to wit:
A parcel of land being part of Tracts 62 and 63, Section 13 of the resurvey of T. 21 N., R.
116 W., 6th P.M., City of Kemmerer and Lincoln County, Wyoming and being more
particularly described as follows:
Commencing at the closing corner of Tract 61 and Section 12 of said resurvey of
T. 21N., R. 116W., thence S 80° 35' 31"W, 2687.94 feet to the Point of Beginning of
this description.
Said point of beginning being the same point of beginning as identified in the
Foothills Kemmerer, L.L.C. warranty deed as recorded in book 412 PR on page 579
(herein-after referred to as the Foothills Kemmerer, L.L.C. Parcel.) Said point of
beginning being monumented with a found rebar and aluminum survey cap.
Thence S 89° 55' 57"E, 549.59 feet (N 89° 59' 30" E, 549.33 feet record) to the
north easterly most corner of said Foothills Kemmerer L.L.C. Parcel where is found a
rebar with no cap:
Thence S 0° 09' 57" W, 491.96 feet (S 0°00' 30" E, 492.80 feet record) to a point
where is found a rebar with no cap;
Thence S go~i';;'11"W, 1511.40 feet (8 9° 20' 30"W, 1510.56 feet record) to the
southeasterly most corner of said Foothills Kemmerer, L.L. C. Parcel where is found a
RECEIVED 5/2/2006 at 11 :35 AM
RECEIVING # 917984
BOOK: 618 PAGE: 540
JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER, WY __
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0917984
(.00541
rebar with aluminum cà'p stamped ,iCCI PELS 5465"set this survey;
Thence N 85° 27' 03" W, 239.34 feet (N 85° 28' 45"W recard) alang the sauth
baundary 'Of said Faathills Kemmerer, L.L.C. Parcel ta a paint where is faunda rebar
with aluminum cap stamped "CCI, PELS 5465";
Thence cantinuing alang the sauth baundary lines 'Of said Faathills/Kemmerer
L.L.C Parcel N 85°21' 23"W, 128.08 feet (N 85° 28' 45;'W recard) ta a paint an the east
baundary line 'Of Fir Avenue 'Of the Willaw Additian ta the Tawn 'Of Kemmerer where is
faund a rebar with aluminum survey cap stamped "CCI, PELS 5465";
Thence N 4° 35' 06" E alang the east baundary lines 'Of Fir Avenue and the east
baundary line 'Of Lat 5 'Of the Martin Subdivisian ta the Tawn 'Of Kemmerer 300.12 feet ta
the narth east carner 'Of said Lat 5 'Of the Martin Subdivisian (N 4° 31' 15" E, 300.00 feet
recard) where is faund a rebar with aluminum cap stamped "CCI, PELS 5465";
Thence N 85° 26' 51 "W, 550.51 feet (N 85° 28; 45"W, 550.00 feet recard) alang
the narth baundary 'Of said Martin Subdivisian and said Willaw Additian ta the narthwèst
carner 'Of Lat 4, Black 4 'Of the Willaw Additian ta a where is faund a rebar with aluminum
cap stamped "CCI, PELS 5465" set this survey;
Thence N 4° 29' 57"E, 150.20 feet (N4° 31' 15" E, 150.00 feet recard) alang the
easterly baundary line 'Of said Faathills Kemmerer, L.L.C. Parcel ta the sauthwest carner
'Of that particular parcel 'Of land canveyed ta Edward J. Carlsan by warranty deed as
recarded in baak 144 PR an page 117 an file in the Lincaln Caunty Clerk's Office
(herein after referred ta as the Carlsan Parcel.) Said paint being manumented by a
faund steel'T' shaped bar with na cap;
Thence S 85° 26' 18" E, 200.00 feet (S 85° 28' 45" E, 200.00 feet-recard) ta the
sautheast carner 'Of said Carlsan Parcel;
Thence N 4° 42' 07" E, 100.15 feet (N 4° 31' 15"E, 100.00 feet recard) ta the
nartheast carner 'Of said Carlsan Parcel. Said paint alsa being the sautheast carner 'Of
that particular parcel 'Of land canveyed by warranty deed ta KLD Industries, a
partnership, as recarded in baak 217 PR an page 180 an file in the Lincaln Caunty
Clerk's Office (said parcel herein after referred ta as the Auta Inn Parcel);
Thence N 4° 42' 07"E, 362.33 feet (N 4°31' 15"E, 361.80 feet recard) ta the
nartheasterly mast carner 'Of said Auta Inn Parcel ta a where is faund a rebar with
aluminum cap stamped CCI, PELS 5465 set this survey;
Thenc~ N 89° 45' 29"W, 32.40 feet (N 89° 56' 21 "W, 32.35 feet recard) alang the
narth baund~ry line 'Of said Auta Inn Parcel ta the sautheasterly mast carner 'Of that
particular parcel at lâmf-êonveyed by QCD to Jere Kovach and Sheila Kovach as
recarded in baak 309 PR an page 422 an file in the Lincaln Caunty Clerk's Office
(herein after referred ta 189 Liquar Parcel.) Said paint being manumented by a rebar
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091.7984
COC542
with aluminum cap stamped "CCI, PELS 5465" set this survey;
Thence N 4° 42' 07" E, 335.15 feet (N 4° 31' 15"E, 334.66 feet record) to the
northeast corner of said 189 Liquor Parcel to a point monumented with a rebar and
aluminum cap stamped CCI, PELS 5465 set this survey;
Thence N 88° 37'17"W, 10.68 feet (N 89° 06'31"W, 10,68 feet record) to the
southeast corner of that particular parcel of land conveyed by warranty deed to Tri-
Valley Distributing, Inc. as recorded in book 224 PR on page 584 on file in the Lincoln
County Clerk's Office (herein after referred to as the Gas Station Parcel.) Said point
being monumented by a found rebar with an aluminum cap;
Thence N 2° 37' 12"E, 142.30 feet (N 2° 25' 44"E, 142.19 feet record) to the
northeast corner of said Gas Station Parcel where is found a rebar with no cap.
Thence N 89° 48' 02"W, 148.81 feet (N 89° 41' 46"W, 149.73 feet record) to the
northwest corner of said Gas Station parcel where is found a rebar with aluminum cap
stamped CCI, PELS 5465 set this survey. Said point being a point of the east right of
way boundary of U.S. Highway 189 and being a point on a curve to the left;
Thence northeasterly along said east boundary of U.S. Highway 189, 12.93 feet
along the arc of a curve to the left to a standard 6" x 6" concrete post highway right of
way marker. Said curve to the left having a radius of 1502.66 feet, a central angle of 0°
28' 26" and a chord of 12.43 feet which bears N 7° 52' 16"E;
Thence continuing along the east right of way boundary of said U.S. Highway
189, S 85°43' 20"E, 49.95 feet (S 85°28' OO"E, 50.0 feet record) to a standard 6" x 6"
concrete post highway right of way marker;
Thence N 4° 11' 25"E, 45.04 feet (N 4° 32' OO"E, 45.04 feet record) along said
east right of way boundary of U.S. Highway 189 to the southwest corner of that
pÇirticular parcel of land conveyed by warranty deed to Sherwin Kirby as recorded in
book 370 PR on page 830 on file in the Lincoln County Clerk's Office (herein after
referred to as the Kirby Parcel.) Said point being monumented with a found rebar and
survey cap.
Thence N 89° 46' 38"E, 381.69 feet (West, 381.57 feet record) to the southeast
corner of said Kirby Parcel. Said point being monumented with a found rebar and
survey cap.
Thence N 0° 14' 28"W, 234.26 feet (North, 234.26 feet record)to the northeast
corner of said Kirby Parcel. Said point being monumented with a found rebar and
survey cap.
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091798,*
C0054,3
Thence S 89° 46' 55"W, 362.96 feet (West, 363.00 feet record) to the northwest
corner of said Kirby Parcel. Said point being a point on the east right of way boundary
of U.S. Highway 189 and being monumented by a found rebar with a survey cap.
Thence N 4° 23' 36"E, 253.08 feet (N 4° 32' OO"E, 253.03 feet record) along said
easterly right of way boundary of U.S. Highway 189to the northwesterly corner of said
Foothills Kemmerer, L.L.C. Parcel where is found a rebar with no cap.
Thence S 89° 56'30"E, 405.84 feet (N 89° 59' 30"E, 405.56 feet record) to the
point of beginning.
Said parcel contains 34.2 åcres more or less.
And that parcel of land located in Tract 63 of the resurvey of T .21 N., R. 116 W., of the
6th P.M., City of Kemmerer, Lincoln County, Wyoming and being more particularly
described as follows:
Beginning at the northwest corner of Lot 4, Block 4 of the Willow Addition to the City of
Kemmerer, Lincoln County, Wyoming;
Thence N4231'15" E,150.20 feet;
Thence N 8Ei228'45" W, 35.0 feet;
ThenceS 4231'15" W, 150.20 feet;
Thence S 85228'45" E, 35.0 feet to the point of beginning.
including all buildings and improvements thereon (or that may
hereaftèr be erected thereon); together with appurtenances and
all other rights thereunto belongin~, or in anyway now or
hereafter appertaining, and the reversion and reversions,
remainder anq remainders, rents, issues, and profits thereof,
and all plumbing, heating and lightirigfixtures and equipment'
now or hereafter attached to or used in connection with said
Premises.
The Mortgagor covenants and agrees with the Mortgagee as
follows:
SECTION ONE
RENTS, PROFITS AND RECEIVER
Mortgagor as_further security for this mortgage and the
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091.7984
COC544
note, hereby assigns, sets over, and conveys to Mortgagee all
its interest in and to all rents, issues, and profits from the
Property. In the event of a default, following any required
notice and right to cure, Mortgagee shall hav~ the right
without notice to the Mortgagor, to take possession of the
Property, including during the pendency of foreclosure,
whether judicial or non-judicial, and collect the rents,
,including amounts past due and unpaid, and apply the net
proceeds, over and above the Mortgage~s costs, against the
indebtedness. In addition, Mortgagee shall have the rïght to
have a receiver appointed to take possession of all or any
part of the Property, with the power to protect and pre~erve
the Property, to operate the Property preceding foreclosure or
sale and to collect the rents for the Property ~nd apply the
proceeds, over arid above the cost of receivership against the
indebtedness. The Receiver may serve without bond, if
permitted by law.
SECTION TWO
PAYMENT OF INDEBTEDNESS
Mortgagor will pay the indebtedness as required by the
promissory note of even date herewith.
SECTION THREE
TAXES AND OTHER CHARGES
Mortgagor shall pay all taxes, assessments, and other
governmental or municipal charges, or other lawful charges
assessed against or encumbering the Property by December 31sT of
each year and will promptly deliver the official receipts
therefor to Mortgagee upon request. Mortgagor shall also bear and
timely pay the cost of all utilities used by the Mortgagor at the
Premises during the term of the promissory note, including but
not limited t~?èÍ~ctricity, phone, water, sewer and garbage
5
091.798~
COC545
disposal. Failure to do so shall constitute an event of default.
In default thereof the Mortgagee may, at its option, pay the
same, and all sums so paid shall be added to and considered a
part of the above indebtedness hereby secured, and shall draw
interest at the rate set forth in the promissory note.
SECTION FOUR
MAINTENANCE OF PROPERTY
Nothing shall be done on or in connection with said Property
which may impair the Mortgagee's security hereunder; the
Mortgagor shall not commit waste, impairment, or deterioration of
said property nor any part thereof, and said Property shall be
continuously maintained in good and sightly order, repair and
condition by the Mortgagor at his expense. Failure to do so shall
constitute an event of default~
Nuisance, Waste. Mortgagor shall not cause, ponduct or
permit any nuisance nor commit, permit, or suffer any stripping
of or waste on or to this Property or ãny portion of the
Property. Without limiting the generality of the foregoing,
Mortgagor will not remove or grant to any other party the right
to remove, any timber, minerals (including oil and gas), soil,
gravel or rock products without the prior written consent of
Mortgagee.
Removal of Improvements. Mortgagor shall not demolish or
remove any improvements from the Real Property without prior
written consent of Mortgagee. As a condition to the removal of
any improvements, Mortgagee may require Mortgagor to make
arrangements satisfactory to Mortgagee to replace such
improvements with improvements of at least equal value.
Mortgagee's Right to Enter. Mortgagee and its agents and
representatives may enter upon the Real Property at all
reasonable tiRte"s ~tõ attend to Mortgagee's interests and to
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091798~
000546
inspect the Property for purposes of Mortgagor's compliance with
the terms and conditions of the Mortgage.
Compliance with Governmental Requirements.
Mortgagor shall
promptly comply with laws, ordinances, and regulations, now or
hereafter in effect, of all governmental authorities applicable
to the use of occupancy of the Property, including without
limitation, the Americans With Disabilities Act. Mortgagor may
contest in good faith any such law, ordinance, or regulation and
withhold compliance during any proceeding including appropriate
appeals, so long as Mortgagor has notified Mortgagee in writing
prior to doing so and so long as in Mortgagee's sole opinion
Mortgagee's interests in the Property are not jeopardized.
Mortgage may require Mortgagor to post adequate security or a
surety bond, reasonably satisfactory to Mortgagee, to protect
Mortgagee's interest.
Duty to Protect.
Mortgagor agrees that it shall not
abandon nor leave unattended the Property. Mortgagor shall do
all other acts in addition to those acts set forth above in this
section, which from the character and use of the Property are
reasonable necessary to protect and preserve the Property. A
failure to comply with the provisions of this Section shall be
cQnsidered an event of default.
SECTION FIVE
CASUALTY AND FIRE INSURANCE
Mortgagor will keep the improvements now existing or
hereinafter erècted on the said premises, insured as may be
required from time to time by the Mortgagee against. loss by
fire and other hazards, casualties, and contingencies in an
amount equal to the market value of all improvements located
on the Property, and will pay promptly, when due, any premiums
- .~---...
on such insu~~~~ All insurance shall be carried with
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0911';984
C nn5-47
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companies approved by the Mortgagee and the policies and
renewals thereof shall have attached thereto loss payable
clauses in favor of and in form acceptable to the Mortgagee.
Mortgagor shall take all steps necessary to assure that
notification of renewals are mailed or otherwise delivered by
the insurance company to the Mortgagee each year. In event of
loss, Mortgagor will give immediate notice to the Mortgagee
and the insurance carrier. Mortgagee may make proof of loss to
the insurance carrier if not made promptly by the Mortgagor.
Insurance proceeds shall be applied to restoration or repair
of the Property damaged, if the restoration or repair is
economially feasible and Mortgagee's security is not lessened.
If the restoration or repair is not economially feasible or
Mortgagee's security would be lessened, the insurance proceeds
shall first be applied to the sums secured by this Mortgage,
whether or not then due, with any excess paid to the
Mortgagor.
In event of fore~losure 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
M~rtgagor in and to any insurance policies then in force shall
pass to the purchaser or grantee.
SECTION SIX
PREMISES LIABILITY INSURANCE
Mortgagor shall also carry a policy of commercial general
liability insurance, for its use of the Premises with liability
limits in an amount of not less than $1,000,000.00 per occurrence
and shall provide the Mortgagee with a copy of the certificate
for said premises liability insurance each year of the term of
the Mortgage.
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Ô917984
,( :,r'548
SECTION SEVEN
CHARGES; LIENS
In case the Mortgagor defaults in the payment of any, taxes,
assessments, or other governmental or municipal charges, or other
lawful charges, as herein provided, the Mortgagee may, without
notice or demand, pay the same "and in case of any failure on the
part of the Mortgagor to comply with the covenants of Section
Four hereof, the Mortgagee may effect such repairs as it may
reasonably deem necessary to protect the Ptoperty, at the expense
of the Mortgagor. The Mortgagor covenants and agrees to repay
such sums so paid and all expenses so incurred by the Mortgagee,
with interest thereon from the date of payment, at the default
rate as provided in the note herein described, and the same shall
be a lien on the said Premises and be secured by the said note
and by these presents and in default of making such repayments,
the whole amount hereby secured, if not then due, shall, if the
said Mortgagee so elects, become due and payable forthwith,
anything herein contained to the contrary notwithstanding.
SECTION EIGHT
ACCELERATION AND FORECLOSURE
In the event of a default, then the whole of the then
indebtedness secured hereby, inclusive of principal, interest,
arrearage, late fees if any, taxes, assessments, water, sewer and
garbage charges, expenditures for repairs or maintenance,
together with all other sums payable pursuant to the Promissory
Note and the provisions hereof, shall become immediately due and
payable, at the option of the Mortgagee, and any failure to
exercise said option shall not constitute a waiver of the right
to exercise the,same at any, other time, and it shall be lawful
for the Mortg~~èe~~o,proceed to enforce the provisions of this
9
091.798l\
('()Or.::::49'
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mortgage either by suit at law or in equity, as it may elect, or
to foreclose this mortgage by power of sale or advertisement and
'sale of the above-described Premises, at public venue, 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 a 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 toreclosure and sale, then to the payment of
any disbursements of Mortgagee, then to the payment of late fees
then the balance due on account of the principal indebtedness
secured hereby, together with interest thereon and the surplus,
if any, shall be paid by the Mortgagee on demand, to the
Mortgagor. There shall be included in any or all such
proceedings, a reasonable attorney's fee. In case the Mortgagee
shall fail promptly to foreclose upon the happening of any
default, it shall not thereby be prejudiced in its right of
foreclosure at any time thereafter during which such default
shall continue and shall not be prejudiced in its foreclosure
rights in case of further default or defaults~
If Mortgagor remains in possession of the Property after the
Property is sold as provided above, during the redemption period,
Mo~tgagor shall become a tenant at sufferance of the Mortgagee or
the purchaser of the Property and shall, at the Mortgagee's or
purchaser's option, either (a) pay a reasonable rental for the
use of the Property, or (b) vacate the Property immediately upon
demand of the Mortgagee or purchaser.
SECTION NINE
WAIVER OF RIGHT TO ENFORCE
No failure by the Mortgagee or any legal holder to enforce
any right, set~foittí herein nor the granting of any extension of
10
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091.7984
,OC550
time hor taking of additional security, nor partial release of
security or the making of future advances, shall act to
constitute a waiver of the right to enforce any and all remedies
provided herein nor shall it ~ct to discharge or release the
collaterál.
SECTION TEN
DUE ON SALE
Mortgagee may, at its option, declare immediately due and
payable all sums secured by this Mortgage upon the sale or
transfer, without the Mortgagee's prior written consent. A "sale"
or "transfer" shall mean the conveyance of the Real Property or
any right, title or interest therein; whether legal, beneficial
or equitable; whether voluntary or involuntary; whether by
outright sale, deed, installment sale contract, land contract,
contract for deed, lease-optión contràct or lease with a term
greater than three (3) years. A "sale" or "transfer" shall
also mean any transaction or series of transactions which has the
effect of, when seeing through entities to the ownership interest
held by persons, Estates or Trusts, decreases the collective
ownership interest of Boris B. Vukovich, his parents, brothers,
sisters, his children and their issue, his brothers' and sisters'
children and their issue, and Estates of any of the above and any
trust(s) maintained for any of ~he above's benefit, in the
Mortgagor below fifty-one percent, (51%).
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0917984
rf'lf"\551
'.' Ul..
SECTION ELEVEN
BINDING EFFECT
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 hereto.
Whenever used, the singular number shall include the plural, the
plural the singular, and the use of any gender shall include all
genders.
SECTION TWELVE
CONDEMNATION
The following provisions relating to the Property are part
of this Mortgage.
If all or any ~art of the Property is condemned by sminent
domain proceedings or by any proceeding or purchase in lieu of
condemnation, Mortgagee may at its election require that all or
any portion of the net proceeds of the award be applied to the
indebtedne~s or the repair or restoration of the Property. The
net proceeds of the award shall mean the award after payment of
all reasonable costs, exp'enses, and attorneys' fees incurred by
Mortgagee in connection with the condemrtation.
If any proceeding in condemnation is filed, Mortgagor shall
promptly notify Mortgagee in writing, and Mortgagor shall
promptly take such steps as may be necessary to detain the action
and obtain the award. Mortgagor may be the nominal party in such
proceed~ng, but Mortgagee shall be entitled to participate in the
proceeding and to be represented in the proceeding by counsel of
its ,own choice, and Mortgagor will deliver or cause to be
delivered to Mortgagee such instruments as may be requested by it
from time to time to permit such participation.
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091.7984
SECTION THIRTEEN
MISCELLANEOUS AND NOTICE
The following provisions are also integral parts of this
mortgage:
(a) This mortgage shall be binding upon and shall
inure to the benefit of,the successors and assigns of the
respective parties hereto, and any entities resulting from the
reorganization, consolidation or merger of either party hereto.
(b) The headings used in this mortgage are inserted
for reference purposes only and shall not be deemed to limit or
affect in any way the meaning or interpretation of any of the
terms or provisions of this mortgage.
(c) This mortgage may be signed upon any number of
counterparts with the same effect as if the signature to any
counterpart were upon the same instrument.
(d) This mortgage may not be modified except by an
instrument in writing signed by the parties hereto.
(e) The parties agree that time is of the essence in
the performance of all duties herein.
(f) This mortgage shall be interpreted, construed and
enforced according to the laws of the State of Wyoming~
(g) All terms'and words used in this mortgage,
regardless of the number and gender in which they are used,
shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine,
or neuter, as the context or sense of this mortgage or any
paragraph or clause herein may require, the same as if such
words had been fully and properly written in the required number
and gender.
(h) The terms of the mortgage may not be strictly
construed ag~~st~the drafting party. The Parties agree that
13
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091.798~
~f'('553
each has participated equally in negotiating and preparing the
mortgage.
(i)
All notices, demands requests and writings
required or permitted to be given to the Mortgagor hereunder
shall be deemed duly given if delivered or if mailed by
registered or certified mail, postage prepaid and addressed to
the following:
Mortgagee
Mortgagor
Foothills Kemmerer, LLC.
75ß Park Avenue NE, 29W
Atlanta, Georgia, 30326-3265
Foothills MHC, LLC
2 West. Dry Creek Circle, #200
Littleton, Colorado, 80120
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 mailed.',
IN WITNESS WHEREOF, Mortgagor has duly executed this
-H A-ø(,·1
Mortgage on the ~ß"c..r day of -~, 2006.
FOOTHILLS MHC,LLC,
a Colorado limited
:~~iS B~:!:'
liability company
.,
Manager
STATE OF CO~ORADO
ss
COUNTY OF ARAPAHOE
me
of
The 'above and fOr~ng instrument was acknowledged before
this 6>8+h day of ,'{2006, by Boris B. Vukovich, Manager
Foothills MHÇ~~~LC, a Colorado limited liability company.
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14
0917984
WITNESS my hand and official se
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