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HomeMy WebLinkAbout928143 6010616112 000499 ~ ~@ MORTGAGE "C~ ._ (\) E 'Eõ ~ r~ .i- Kevin J. Kilroy and Billie Jo Kilroy, husband and wife, whose address is P.O. Box 768, ~() 'ô § Afton, Wyoming 8311 0 referred to as "Mortgagor," to secure the payment of Two Million Six :2 ~ i Hundred Eighty Seven Thousand Five Hundred Five Dollars ($2,687,575.00), with interest, </] <.) .... "ti [.1"] 8 evidenced by two Promissory Notes (one in the amount of$1 ,065,075.00 and the other in the amount ~¡ .,~ ~ of $1 ,622,500.00 and collectively hereinafter r.eferred to as the "Notes") of even date herewith, and .8 ~ all other amounts due thereunder and all extensIOns and renewals thereof, when and as the same shall .~ ~ become due and payable hereby mortgages and warrants to Kellen K. Lancaster, Connie C. Lancaster ~ .@ andKEL-CO, Inc., a Wyoming corporation (hereinafter collectively referred to as "Mortgagee") and ~ Mortgagee's successors and assigns, the real estate in Lincoln County, Wyoming described as: See attached Exhibit 1. 1 (a) Together with all wells, buildings, structures, improvements, fixtures, and articles of personal property affixed to or used in connection with the real estate, to all of which Mortgagor represents that they have title free and from any prior liens or encumbrances (all ofthe above being collectively referred to as the "Premises"). THE MORTGAGOR HEREBY COVENANTS AND AGREES WITH THE MORTGAGEE AS FOLLOWS: '" ., I., j, .../ v 1. This Mortgage is given to secure payment and the Mortgagor promises to pay to Mortgagee the amount of Two Million Six Hundred Eighty Seven Thousand Five Hundred Five Dollars ($2,687,575.00), with interest, evidenced by the Notes of even date herewith, and all other amounts due thereunder and all extensions and renewals thereof, when and as the same shall become due and payable. Each such payment shall be applied first to the payment of interest and any balance remaining after the payment of interest shall be applied to the reduction of the unpaid principal balance. 1. ?of , " '\ 2. Time is of the essence and if any amount shall not have been paid when due as provided in the Notes, the entire indebtedness may become due and payable at once at the option ofthe holder and without notice, and thereafter the unpaid principal shall bear interest at the rate often percent (10%) per annum; failure to exercise this option howsoever often shall not constitute a waiver of the right to exercise it thereafter. If any other event of default shall occur as provided in the Notes or this Mortgage, and if Mortgagor after receiving written notice from Mortgagee demanding cure of such default fails to cure the same within 10 days after such notice, the entire indebtedness may become due and payable at once at the option of the Mortgagee and without notice, and thereafter the unpaid principal shall bear interest Mortgage Page 1 of 7 RECEIVED 4/5/2007 at 11 :17 AM RECEIVING # 928143 BOOK: 653 PAGE: 499 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY O~281L\3 000501 10. In case of the failure of the Mortgagor to do so, the Mortgagee may make any payment or _ perfonn any covenant herein to be made or perfonned by the Mortgagor, and any payment so made or expense incurred in connection therewith by the Mortgagee shall bear interest at the rate specified in the Notes, and shall be immediately repayable by the Mortgagor, and shall be impressed as an additional lien upon the mortgaged Premises, and this Mortgage shall thereupon secure the repayment of such advances with interest. 11. In case an event of default shall occur in making payments or perfonning any other covenants or agreement required of Mortgagor as provided in the Notes or this Mortgage, the Mortgagor hereby authorizes and empowers the Mortgagee, and Mortgagee's successors and assigns to foreclose this Mortgage by advertisement and sale as provided by the statutes of the State of Wyoming or to foreclose this Mortgage by judicial proceedings and convey the same to the purchaser in accordance with the statutes of the State of Wyoming, and out of the monies arising from such sale to retain all sums secured hereby with interest and all legal costs and charges of such foreclosure and actual attorney's fees incurred by Mortgagee (or such other amount as shall be fixed by the Court in the event of judicial foreclosure or receivership), which costs, charges and fees the Mortgagor agrees to pay. In case of the foreclosure ofthis Mortgage, the Mortgagor hereby authorizes and empowers the Mortgagee, Mortgagee's successors and assigns, to effect insurance upon any buildings and fixtures on the Premises for a period covering the time for redemption for the sale of the Premises under such foreclosure, and to pay the premium therefor and the amount so paid shall be impressed as an additional lien upon the Premises and shall be secured by and be collectible as a part of this Mortgage and bear interest at the rate specified in the Notes, from the date said amount is paid. In the event of a foreclosure, Mortgagor hereby authorizes and empowers Mortgagee, Mortgagee's successors and assigns, to bring an action against any person who claims an adverse estate or interest therein for the purpose of detennining such adverse estate or interest, and to pay costs and expenses thereoftogether with actual attorney's fees which amount shall be impressed as an additional lien upon said Premises and shall be secured by and collectible as a part of this Mortgage. 12. Upon commencement of any foreclosure, or at any time thereafter, and prior to the expiration of the time for redemption from any sale of the Premises on foreclosure, any court of competent jurisdiction, upon application of the Mortgagee, or the purchaser at such sale, shall, at once and without notice to the Mortgagor or any other person, appoint a receiver for said Premises to take possession thereof, to collect rents, issues and profits of said Premises during the pendency of such foreclosure and until the time to redeem the same from the foreclosure sale shall expire, and out of rents, issues, and profits to keep the Premises in good repair and condition and to pay all taxes, assessments, and special assessments, and to redeem from sale for taxes, assessments, and special assessments, and to pay insurance premiums necessary to keep the Premises insured in accordance with the provisions ofthis Mortgage Page 3 of 7 O~28143 Mortgage and to pay the expense of the receivership, and said receiver shall apf{fi9y;¡g2 proceeds to the payn:t.ent ofthe indebtedness secured hereby, and such receiver shall have all the other usual powers of receivers in such cases. 13. In consideration ofthe sum often dollars ($10) and other valuable consideration, the receipt whereof hereby is acknowledged, the Mortgagor hereby assigns, transfers and sets over to the Mortgagee, Mortgagee's successors and assigns, the rent, profits and income from the mortgaged property with full and complete authority and right in the Mortgagee in case of default as provided for in this Mortgage or the Notes to demand, collect, receive and receipt for the same and to take possession of the mortgaged property without having a receiver appointed therefor and to rent and manage the same from time to time and apply the net proceeds of such upon the indebtedness. Mortgagor hereby assigns to Mortgagee all leases of the mortgaged property or any part thereof which are now or may be in effect hereafter, such assignment to take effect immediately in case of such default. Mortgagee is hereby authorized to take charge of the rental of the above-described property and is hereby authorized to collect rents from said property, to eject tenants for breach of their leases and to enter into leases with and lease said property or any part thereof to tenants, to sue for unpaid rents in the name of the legal holder of said indebtedness, and is to receive for services in managing said property the usual and customary fees for such service in effect in Lincoln County, Wyoming at the time said services are perfonned. Without limiting the generality of the foregoing, in case of default, the Mortgagor further agrees as follows: a. Notice to Tenants. Mortgagee may send notices to any and all tenants of the property advising them ofthis Assignment and directing all rents to be paid directly to Mortgagee or Mortgagee's agent. b. Enter the Premises. Mortgagee may enter upon and take possession of the Premises; demand, collect and receive from the tenants or from any other persons liable therefor, all ofthe Rents; institute and carry on all legal proceedings necessary for the protection of the Premises, including such proceedings as may be necessary to recover possession of the Premises; collect the rents and remove any tenant or tenants or other persons from the Premises. c. Maintain the Premises. Mortgagee may enter upon the Premises to maintain the Premises and keep the same in repair; to pay the costs thereof and of all services of all employees, including their equipment, and of all continuing costs and expenses of maintaining the Premises in proper repair and condition, and also to pay all taxes, assessments, and water utilities, and the premiums on fire and other insurance effected by Mortgagor on the Premises. Mortgage Page 4 of 7 O~2S143 d. 000503 Compliance with Laws. Mortgagee may do any and all things to execute and comply with the laws ofthe State of Wyoming and also all other laws, rules, orders, ordinances and requirements of all other governmental agencies affecting the Premises. e. Lease the Property. Mortgagee may rent or lease the whole or any part of the Premises for such term or terms and on such conditions as Mortgagee may deem appropriate. f. Employ Agents. Mortgagee may engage such agent or agents as Mortgagee may deem appropriate, either in Mortgagee's or Mortgagor's name, to rent and manage the Premises, including the collection and application of rents. g. Other acts. Mortgagee may do all such other things and acts with respect to the Premises as Mortgagee may deem appropriate and may act exclusively and solely in the place and stead of Mortgagor and to have all ofthe powers of Mortgagor for the purposes stated above. h. No Requirement to Act. Mortgagee shall not be required to do any ofthe foregoing acts or things, and the fact the Mortgagee shall have performed one or more of the foregoing acts or things shall not require Mortgagee to do any other specific act or thing. 14. Failure to exercise any right, power or options herein granted to the Mortgagee, howsoever often shall not constitute a waiver thereof and shall not estop the Mortgagee from exercising any such right, power or option at any time or upon any subsequent default of the Mortgagor. All rights and remedies given or reserved to the Mortgagee herein shall be cumulative and may be exercised contemporaneously but the exercise of one or more such rights or remedies shall not exclude or prevent the exercise of Mortgagee's other rights or remedies. 15. Mortgagor represents and warrants to Mortgagee that: a. Authority. Mortgagor (and the undersigned representative of Mortgagor) has full power, authority and legal right to execute this Mortgage, and to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the Property pursuant to the terms hereof and to keep and observe all of the terms of this Mortgage on Mortgagor's part to be performed. b. Legal Status and Authority. Mortgagor (I) is duly organized, validly existing and in good standing under the laws of its state of organization or incorporation; (ii) is duly qualified to transact business and is in good standing in the State where the Premises Mortgage Page 5 of 7 O~28143 000504 is located; and (iii) has all necessary approvals, governmental and otherwise, and full power and authority to own the Premises and carry on its business as now conducted and proposed to be conducted. Mortgagor now has and shall continue to have the full right, power and authority to operate and lease the Premises, to encumber the Premises as provided herein and to perform all of the other obligations to be performed by Mortgagor under the Notes and Mortgage. c. Validity of Documents. (i) The execution, delivery and performance ofthe Notes and this Mortgage and the borrowing evidenced by the Notes (A) are within the company power of Mortgagor; (B) have been authorized by all requisite company action; (C) have received all necessary approvals and consents, corporate, governmental or otherwise; (D) will not violate, conflict with, result in a breach of or constitute (with notice or lapse of time, or both) a default under any provision of law, any order or judgment of any court or governmental authority, the articles of organization, operating agreement, or other governing instrument of Mortgagor, or any indenture, agreement or other instrument to which Mortgagor is a party or by which it or any of its assets or the Premises is or may be bound or affected; and (E) the Notes and this Mortgage constitute legal, valid and binding obligations of Mortgagor. d. Financial Condition. Mortgagor is solvent, and no bankruptcy, reorganization, insolvency or similar proceeding under any state or federal law with respect to Mortgagor has been initiated, and it has received reasonably equivalent value for the granting of this Mortgage. e. Disclosure. Mortgagor has disclosed to Mortgagee all material facts and has not failed to disclose any material fact that could cause any representation or warranty made herein to be materially misleading. 16. Mortgagor agrees that all ofthe terms and conditions contained in the Notes are incorporated into and made part of this mortgage. 17. All warranties, covenants, promises, undertakings, agreements, rights, powers, privileges, benefits, obligations and remedies imposed upon or granted or reserved unto the said parties by this instrument shall survive the execution and delivery hereof and shall respectively extend to and be binding upon the respective heirs, executors, administrators, successors and assigns of said parties. Mortgage Page 6 of 7 O~~S143 000505 IN WITNESS WHEREOF, the undersigned has signed this Mortgage this 4th day of April, 2007. /:;Z "~ V'''Kevin J. Kilro~ ¿) (?:~ \lò ItLt~ Billie J 0 Kilroy STATE OF WYOMING ) ) SS. COUNTY OF LINCOLN ) The foregoing instrument was acknowledged before me by Kevin J. Kilroy and Billie Jo Kilroy, husband and wife, this 4th day of April, 2007. Witness my hand and official seal. My commission expires: q - /.5 -0 7. SEAL ~;;.~ Notary Public - ~ GLORIA K. BYERS· NOTARY PUBLIC C~unty of .'", State of Lincoln .!' Wyoml Me". ng f Y ommlssfon Expires Sept. 15, 2007 Mortgage Page 7 of 7 O~28143 ',.""1tNI LlIIf SW'ttrtf' '....~. kNfMl Wte. -'Olltr.aIIM _. I U w....~._...IPfO \,111ft "-1IdDn No. '"0 "&cIa AeoIt..Ø'''~' dOl hlltl., kft..".. Wyl. ~lflll"" No. 'lit ... "l1li1'11101" ",10'.' Ulan "-...".,... NIt. S12m ....,...", kfI....' w,..,......,...,......)Q ¡..,.,.",SchlfM4.lTO, -- 1te,....IY.~I.,. -",.......... \AW\HII",,",' IIIaI'II ..,.IIMDtf. I..... Exhibit 1.1 Ca) DESCRIPTION FOR KELLEN K. LANCASTER AND CONNIE C. U.NCASTER (b0)[P)f !~00506 CALL GRAVEL - AITON TRACT (REVISED I To-wit: -- That part of the Sl/2NE1/4 of Section 24, T32N R119W, Lincoln County, Wyoming, being part of that tract of record in the Office of th,,; Clerk of Lincoln County In Book 554 of Photostatic Records on page 268, described as follows: BEGINNING at the southwest comer of said SII2NE1I4; thence NOI °_1 O',58"W, 999.25 feet, along the west line of said S 1I2NEI/4, to a point; thence N88°-3T-4l "E, 673.65 feet. along n north line of said tract, to the SOlltheast bathey or that tract of record in said Office in Book 191 ofPhotostatjc Rccordson page2óO,: thence S02°-04'-IO"E, 16.80 feet, to a point, thence N89°.0T-15"E, 227.38 feet, aJong a north line of said tract, to a point; thence SOoo-27'-46''E, 476.28 feet, to a point; thence N88°-S6'-IS"E, 6S9.27 feet, to a point; thence S45°-45'-37"E, 84.41 feet, to a point on th:: south line of a sixty ((JO) foot acccss and utility casement; thence SOoo-27' -46"E, 454.92 feet, to a point on th!: south ¡jOt of said S 1/2NE1/4: thence S89°·08'-38"W, 1608.12 feet, to the CORNIŒ OF BEGINNING; ENCOMPASSING an area of28.96 acres, more or less; the BASE BEARING for this survey is the east Ime of the NE1/4 of Section 24, TJ2N Rl19W, being NOO°-1T -OO"W; TOGE11IER with a right of ingress and egress and utilities over, under and across a strip of land sixty (60) feet in width, with the north line ê_'~sctibed as follows: BEGINNING at a spike on the east line of said SI/¡NEV, within the hounds of U.S. Highway 89, NOoo-17°-00"W, 494.69 feet, from the southeast comer of said S'hNEy..; thence SB9"-OT·Sï"W, 545.27 feet to a point on the east Hne of sajd tract in Book 554; AND TOGETH.ER with a right of ingress and egress atld utilities over, under and across the following described tract: COMMENCrNG at a point on the south line 0:: said SY¡NEI/., S89°-08'-38"W, 543.12 feet from the southeast comer of said S YíNEYI; thence NOQo-27'-46"W, 516.97 feet to the southeast point ofiliat tract ofrecorct in said OfficI!: in Book 560 of Photostatic Recordt, on page 024, being the POINT OF BEGINNING; "Modification in any way of the foregoing descri~.:lon terminates liability d the surveyor" 092b1.43 JIf""Ifo/'IIII~!'\fs..Nt,.1"I ~w.....~,... ""'.~"_"'.II· ..... AI....,.11en NI. 1'10 UI."....lInlllll..... "10 NM.,. AIOI"I66f\ HI, IIGS ...,~. Scft.... w,a, "-01.........,. Nt,:l1It ......""11"'11.......101. """''''''''''I1odkl.!lt'I''' .........A.I:cl'1f'INI1 ...... "1Gb.."" .~ "" ~'~.I.TD. Aftoft,Wrot"Iilll "'IIIIPf.'IoIyOI'I1nI .......IUrt""u-. \,.a". ~tt SflMP. lIdatlo MoIIþII"',Id~ DESCRIPTION FOR KELLEN K. LANCASTER AND CONNIE C. LANCASTER CALL GRAVEL - AITON TRACT (REVISED) PAGE TWO thence S88°·56'·15"W, 566.77 feel, along the !:outh line of said tract, to the southwest point thereof; thence continuing, SB8°·56'-1 S"W, 60.00 feet 11) a point; thence S45°·45'·37"E. 84.4\ feet, to a point; thence N88°-S6'-15'"E, 466.77 fect, to a point; thencc S61o-54'·03"E,·45.54 feet, to a point; thence N89°·01'-57"E. GO.no feet, to a point or. the east line of said tract in Book 554; thence NOoo-21'-46"W, 82.40 feet, to the POINT OF BEGINNING; RESERVING unto the Grantors, their heirs, sUec'~ssors and assigns a perpetual right úr ingress and egress and utilities over. under, and across the following described tract; COMMENCING at a point on the south line of said SYJNE'h, N89°-08'-38"E, 1608.12 feet from the southwest comer of said S y,NE Y-o; thence NOoo-27'-46"W, 454.92 feet, to the POI"'iT OF BEGTNN1NG: thence S88°-56'-15"W, 71.9.26 to 3. position: thence NOoo-21'-46"W, 60.00 feet, to a point: thence N88°-56'-15"E, 659.27 feet, to a point; thence S45°-45'-37"E, 84.41 feet, to the POINT OF BEGINNING; SUBJECT to a right-of-way easement for Lincoln County School District No.2, of record in said Office in Book 376 of Photostatic Records 011 page 87; each "comer" found as described in the Comer Re.;ord filcd or to be filed in the Office of the Clerk of Lincoln County; each "bathey" marked by a steel T-shaped stake 24" long with a mcta.! cap inscribed. "SURVEY POINT DO NOT DISTURB RLS 164" and/or "PAUL N. SCHER.ßEL RLS 164 SURVEY PO IN!"; each "point" marked by a S/8" x 24" steet reir forcing rod with a 2" aluminum cap inscribed, "SURVEYOR SCHERBEL LTD AFT ON WY PLS 5368"or "SCHERBEL LTD BIG PINEY PLS 5368", with appropriate dctaj]s; 00 507 ','.