HomeMy WebLinkAbout923079
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MORTGAGE
(With Power of Sale)
RECEIVED 10/412006 at 4:20 PM
RECEIVING # 923079
BOOK: 635 PAGE: 885
JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER, WY
000B85
KNOW ALL MEN BY THESE PRESENTS, that Kemmerer BLM,
L.L.C" a Wyoming limited liability company, of 112 North
Hearne, Franklin, Texas, 77859, designated as Mortgagor, to
secure the payment of the principal sum of ONE MILLION
EIGHT
HUNDRED
AND
TWENTY
FIVE
THOUSAND
DOLLARS
($1,825,000.00) plus interest as set forth and evidenced by
an Adjustable Rate Promissory Note dated October 2, 2006
payable to the order of Regions Bank, its successors and
assigns, of One International Centre, 100 NE Loop 410,
Suite 1425, San Antonio, Texas, 78216 herein designated as
Mortgagee, payable as set forth in the Adjustable Rate
Promissory Note,
(the ~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 located in a portion of Tracts 62 and 71, a portion of the Southwest
Quarter, Section 12, all of the resurvey of Township 21 North, Range 116 West, 6th P.M.,
Lincoln County, City of Kemmerer, Wyoming. Said parcel being bounded on the
Easterly side by the Westerly right of way ofU,S. Highway 189, and being bounded on
the Westerly side by the Easterly right of way of Wyoming State Highway 233, and being
bounded on the North by a City of Kemmerer parcel described and recorded in Book 237,
page 263 and being bounded on the South side by a particular parcel conveyed to the
State Highway Commission of Wyoming described and recorded in Book 179, page 224.
The previously noted documents are on file at the Lincoln County Courthouse. This
parcel of land being described more particularly as follows: a.
Commencing at comer number 1 of Tract 62, of the resurvey of Township 21 North,
Range 116 West, 6th P.M., Lincoln County, Wyoming, where is found a brass, cap;
thence North 89 45'22" West, 1321.57 feet to comer number 4 of
said Tract 62;
thence South 11 33'41" East, 576.83 feet to tl1e Point of
Beginning of this description. Said Point of Beginning being a point on the
Westerly right of way of US Highway 189 and on the Southerly boundary of a
Mortgage - Kemmerer BLM
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particular parcel of land conveyed to the City of Kemmerer, described and
recorded in Book 237, page 263 on file at the Lincoln County Courthouse, where
is found a 2" aluminum cap;
thence South 68 13'21" West along the Southerly boundary of said City of Kel1'\lI1erer
Parcel, 258.73 feet to a point where is found a 2" aluminum cap;
thence North 84 20'33" West, 161.60 feet to the Southwest corner of said City of
Kemmerer Parcel. Said Southwest corner also being the Southeast corner of a
particular parcel of land conveyed to the City of Kemmerer, hereinafter known as
Kemmerer #2 Parcel, described and recorded in book 313, page 209, on file at the
Lincoln County Courthouse, where is found a 2" aluminum cap;
thence continuing North 84 20'33" West along the Southerly boundary of said Kemmerer
#2 Parcel, 54.43 feet to the Southwest corner of said Kemmerer #2 Parcel and a
point on the Easterly boundary of Wyoming State Highway 233 where is found a
2" aluminum cap. Said point being a point on a circular curve to the right, the
radius point of said curve bears South 7720'54", 1482.39;
thence Southerly 440.22 feet along the arc of said curve to the right and along the
Easterly right of way of Wyoming State Highway 233, through a central angle of
1700'53" to the P.T. of said curve to the right, where is found a standard highway
right of way marker;
thence South 4 20'44" West, 393.41 feet to a point where is found a standard highway
right of way marker;
thence continuing the following five (5) courses along the Easterly right of way of
Wyoming State Highway 233;
thence South 88 48'35" East, 14.49 feet to a point where is found a standard highway
right of way marker;
thence South 4 18'15" West, 347.16 feet to a point where is found a standard highway
right of way marker;
thence South 85 37'20" West 24.80 feet to a point where is found a standard highway
right of way marker;
thence South 4 17'13" West, 243.82 feet to a point where is found a standard highway
right of way marker;
thence South 4 17' 13 " West, 71.13 feet to a point on the Easterly right of Wyoming State
Highway 233 and the Northwesterly corner of a particular parcel of land
conveyed to the State Highway Commission of Wyoming, described and recorded
in Book 179, page 224, on file at the Lincoln County Courthouse where is found a
2" aluminum cap;
thence South 63 07'49" East along the Northerly boundary of said State Highway
Commission of Wyoming Parcel, 84.97 feet to a point where is found a standard
highway right of way marker;
thence continuing South 63 07'49" East, 47.00 feet to a point common to the Easterly
right of way of Wyoming State Highway 233 and the Westerly right of way of
u.S. Highway 189, offset 87.50 feet of the centerline of u.S. Highway 189 as
defme by Wyoming Highway Department Project DP-RRS-F 011-3(4), where is
found a 2" aluminum cap;
thence North 27 14'56" East, along the Westerly right of way of said U.S. Highway 189,
177.23 feet to a point where is found a 2" aluminum cap;
Mortgage - Kemmerer BLM.doc
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thence North 60 32'09" West, 1.92 feet to a point where is found a 2" aluminum cap. Said
point being a point on the Westerly right of way of U.S. Highway 189 as defme
by instrument number 893358 on file at the Lincoln County Courthouse, where is
found a 2" aluminum cap; .
thence continuing the following six (6) courses along the Westerly right of way of U.S.
Highway 189 as defined by said instrument #893358.
thence North 28 52'47" East, 10.62 feet to a point where is found a standard highway
right of way marker. Said point being the point of Tangent to Spiral (TS) of a
spiral curve to the left. The centerline point of TS bears, South 61 07'13" East,
89.89 feet. The Westerly right of way of U.S, Highway 189 being defmed as a
line of offset 89.89 feet or 109.91 feet and parallel to the centerline of said U.S.
Highway 189 as defined by the following. The centerline data for spiral curve
being: Total Delta = 34 39'52", Delta Spiral = 446'29", Total Tangent Length =
779.05 feet, Radius = 1968.50 feet, Spiral Length = 328.08 feet, Circular Length
= 862.89;
thence Northerly from said TS, along the Westerly right of way, offset 89.89 feet to the
left (West) of said centerline, through the spiral portion of the spiral curve to the
point of Spiral to Curve (SC), where is found a standard highway right of way
marker, The chord from the TS to the SC bears North 27 21'22" East, 331.11;
thence North 65 53'11" West along a radial line, 20.01 feet to the SC of the spiral Curve
offset from the centerline 109.91 feet, where is found a standard highway right of
way marker;
thence continuing along the 109.91 foot offset and parallel line to said centerline of said
highway the following three (3) courses;
thence 814.69 feet along the arc of the circular portion of the spiral curve to the point of
Curve to Spiral (CS), where is found a standard highway right of way marker. The
. chord from the SC to the CS along the Westerly right of way bears North 11
32'46" East, 808.19 feet;
thence Northerly along the spiral portion of the spiral curve to the point of Spiral to
Tangent (ST), where is found a standard highway right of way marker. The chord
from the CS to ST along the Westerly right of way bears North 4 13'02" West,
318.83 feet;
thence North 547'09" West, 56.25 feet to the Point of Beginning.
including all buildings and improvements thereon (or that
may hereafter be erected thereon) ;
together wi th
appurtenances and all other rights thereunto belonging,
or in anyway now or hereafter appertaining, and the
reversion and reversions, remainder and remainders,
rents, issues, and profits thereof, and all plumbing,
heating and lighting fixtures and equipment now or
Mortgage - Kenunerer BLM,doc
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hereafter attached to or used in connection with said
Premises.
The Mortgagor covenants and agrees with the Mortg~gee
as follows:
SECTION ONE
SECURITY INSTRUMENT
Mortgagee acknowledges and agrees that this Mortgage
is the Security Instrument referred to and defined in
Section 1.28 of the Loan Agreement and Section 2 of the
Note entered into by the Parties and of even date herewith.
SECTION TWO
RENTS, PROFITS AND RECEIVER
Mortgagor as further security for this mortgage and
the 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,
Mdrtgagee shall have 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 Mortgagee's costs, against the indebtedness.
In addition, Mortgagee shall have the right to have a
receiver appointed to take possession of all or any part
of the Property, with the power to protect and preserve
the
Property,
to
operate
the
Property
preceding
foreclosure or sale and to collect the rents for the
Property and apply the proceeds, over and above the cost
of receivership against the indebtedness.
may serve without bond, if permitted by law.
The Receiver
Mortgage - Kemmerer BLM.doc
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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
31 ST 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 utili ties
used by the Mortgagor at the Premises during the term of
the Note, including but not limited to, electricity, phone,
water, sewer and garbage 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
default rate set forth in the 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
defaul t.
( i ) Nuisance, Waste.
Mortgagor shall not cause,
conduct or permit any nuisance nor commit, permit, or
suffer any stripping of or waste on or to this Property or
any portion of the Property, Wi thout limiting the
generali ty of the foregoing, Mortgagor will not remove or
grant to any other party the right to remove, any timber,
Mortgage - Kemmerer BLM.doc
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minerals (including oil and gas), soil, gravel or rock
products without the prior written consent of Mortgagee,
(ii) 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,
(iii) Mortqaqee's Right to Enter. Mortgagee and its
agents and representatives may enter upon the Real Property
at all reasonable times to attend to Mortgagee's interests
and to inspect the Property for purposes of Mortgagor's
compliance with the terms and conditions of the Mortgage.
( i v) Compl.iance wi th Governmen tal. 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.
(v) 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
Mortgage - Kemmerer BLM.doc
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above in this section, which from the character and use of
the Property
preserve the
are reasonable
necessary
to protect and
comply with' the
Property, A
failure to
provisions of this Section shall be considered an event of
default.
SECTION FIVE
INSURANCE
Mortgagor, at its expense, shall obtain and deliver to
Mortgagee (and remain in compliance with such reasonable
requirements at all times during the term of this Mortgage)
policies of insurance providing the following:
(i) Policies of insurance evidencing bodily injury,
death or property damage liability coverages in amounts
not less than $1,000,000.00 (combined single limit), and
an excess/umbrella liability coverage in an amount not
less than $2,000,000.00 shall be in effect with respect
to Mortgagor. Such policies must be written on an
occurrence basis so as to provide blanket contractual
liåbility, broad form property damage coverage, and
coverage for products and complete operations.
(ii) "Special Cause of Loss"
insurance on the
improvements in an amount not less than the full
insurable value on a replacement cost basis of the
insured improvements
thereto.
(iii)
and personal property related
If
applicable,
evidence
of
worker's
compensation
insurance
coverage
satisfactory
to
Mortgagee.
(iv) If the Property, or any part thereof, lies within
a "special flood hazard area" as designated on maps
prepared
by
the
Department
of
Housing
and
Urban
Development,
a
National
Flood
Insurance
Association
Mortgage - Kemmerer BLM.doc
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standard flood insurance policy, plus insurance from a
private insurance carrier if necessary, for the duration of
the Mortgage in the amount of the full insurable valu~ of
the Improvements.
(v) Such other insurance as Mortgagee may reasonably
require, which may include, without limitations, errors and
omissions insurance with respect to the contractors,
architects and engineers, earthquake insurance, rent
abatement and/or business loss. All insurance policies
shall (i) be issued by an insurance company having a rating
of "A" VII or better by A.M. Best Co., in Best's Rating
Guide, (ii) name Mortgagee as an additional insured on all
liability insurance and as a loss payee on all casualty
insurance, (iii) provide that Mortgagee is to receive
thirty (30) days written notice prior to non-renewal or
cancellation, (iv) be evidenced by a certificate of
insurance to be held by Mortgagor, and (v) be in form and
amounts acceptable to Mortgagee.
SECTION SIX
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 Property, 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
Mortgage - Kemmerer BLM,doc
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described, and the same shall be a lien on the said
Premises and be secured 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 SEVEN
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 Adjustable Rate 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 Mortgagee to proceed to enforce the
provisions of this mortgage either by suit at law or in
equi ty, 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 foreclosure 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
Mortgage - Kemmerer BLM.doc
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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, Mortgagor 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 EIGHT
WAIVER OF RIGHT TO ENFORCE
No failure by the Mortgagee or any legal holder to
enforce any right set forth herein nor the granting of any
extension of time nor 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
act to discharge or release the collateral.
SECTION NINE
DUE ON SALE
Mortgagee may, at its option, declare immediately due
and payable all sums secured by this Mortgage upon the sale
or transfer of the Property, without the Mortgagee's prior
written consent. A "sale" or "transfer" shall mean the
Mortgage - Kemmerer BLM.doc
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conveyance of the 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-option contract or lease with a term greater
than three (3) years, However, "sale" or "transfer" shall
not mean the sale, transfer or other conveyance of
membership interests or other equity interests in Kemmerer
BLM, L.L.C" and such transfers shall not be prohibited
during the term of this Mortgage so long as Victor R.
Blackmon and Kenneth J. Gilbert, collectively control the
business affairs of the Mortgagee at all times during the
term of the Mortgage.
SECTION TEN
CONDEMNATION
The following provisions relating to the Property are
part of this Mortgage.
If all or any part of the Property is condemned by
emïnent 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 indebtedness or the repair or
restoration of the Property. The net proceeds of the award
shall mean the award after payment of all reasonable costs,
expenses, and attorneys' fees incurred by Mortgagee in
connection with the condemnation.
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 proceeding, but Mortgagee shall
be entitled to participate in the proceeding and to be
Mortgage - Kemmerer BLM,doc
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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.
SECTION ELEVEN
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
Mortgage - Kemmerer BLM,doc
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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 stri¡:::tly
construed against the drafting party. The Parties agree
that 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
Kemmerer BLM, L.L,C.
Victor R. Blackmon, Manager
112 North Hearne
Franklin, Texas 77859
Regions Bank
Andrew Ozuna
One International Centre
100 NE Loop 410, Suite 1425
San Antonio, Texas 78216
Either party shall have the right to specify in
wr'i ting 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
Mortgage on the 21st da September, 2006, to be effective
October 2, 2006.
KEMMERER BLM, L,L.C,
:y~Yomi 9 l~te~.
Doug as R. Mandrell,
Chief Financial Officer
Mortgage - Kenunerer BLM,doc
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00089~
STATE OF TEXAS §
'!]9Z30';'!j
COUNTY OF ROBERTSON §
The above and foregoing instrument was acknowledged
before me this 21st day of September, 2006, by Douglas R.
Mandrell, Chief Financial Officer of Kemmerer BLM, L,L.C.,
a Wyoming limited liability company.
WITNESS my hand and official seal.
TRACEY ANNETTE PETTIT
Notary Public, Stitt of Texas
My Commlulon Expire.
Jun. 07,2009
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Notary P~lic
My Commission Expires:
--=:J'ú Y\~ 011 ':l~
Mortgage - Kemmerer BLM.doc
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