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HomeMy WebLinkAbout936196 I I I I l' RECEIVED 1/11/2008 at 3:42 PM RECEIVING # 936196 BOOK: 683 PAGE: 657 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY 000657 6010716176 (Space Above This Line For Recording Datil) LOAN NUMBER: 26009753 COMMERCIAL REAL ESTATE MORTGAGE This COMMERCIAL REAL ESTATE MORTGAGE ("Security Inslrument") is made on December 21, Z007 between K & K Property Investments, LC, a Idaho Limited Liability Company, whose address is 5383 S 900 E Ste 290, Salt Lake City, Utah 84117 the "Mortgagor(s)" and America West Bank whose address is 476 W. Heritage Park Blvd. #200, Layton, Utah 84041 ("Lender"), which is organized and existing under the laws of United States of America. Mortgagor in consideration of loans extended by Lender up to a maximum principal amount of Sixty-three Thousand Five Hundred Sixteen and 00/100 Dollars ($63,516.00) ("Maximum Principal Indebtedness"), and for other valuable consideration, the receipt of which is acknowledged, hereby mortgages, grants and conveys to Lender, its successors and assigns, forever, with power of sale, the following described property located in ilie County of Lincoln, State of Wyoming: Address: Vacant Land, Smoot, Wyoming 83126 Legal Description: LOT 2 OF COTTONWOOD SHADOWS I SUBDIVISION, LINCOLN COUNTY, WYOMING AS DESCROBED ON THE OFFICIAL PLAT FILED ON JULY 3,2006 AS INS'lRUMENT NO. 919889 OF THE RECORDS OF THE LINCOLN COUNTY CLERK. Parcel ill/Sidwell Number: 12~3018-08-3-00-094.00 Together with all easements, appurtenances abutting streets and alleys, improvements, buildings, fixtures, tenements, hereditaments, equipment, rents, income, profits and royalties, personal goods of whatever description and all other rights and privileges including all minerals, oil, gas, water (whether groundwater, subterranean or otherwise), water rights (whether riparian, appropriate or otherwise, and whether or not appurtenant to the above- described real property), wells, well permits, ditches, ditch rights, reservoirs, reservoir rights, reservoir sites, storage rights, dams and water stock that may now, or at any time in the future, be located on and/or used in connection with the above-described real property, payment awards, amounts received from eminent domain, amounts received from any and all insurance payments, and timber which may now or later be located, situated, or affixed on and used in connection therewith (hereinafter called the "Property"). RELATED DOCUMENTS. The words "Related Documents" mean aU promissory notes, security agreements, prior mortgages, prior deeds of trust, business loan agreements, construction loan agreements, resolutions, guaranties, environmental agreements, subordination agreements, assignments of leases and rents and any other documents or agreements executed in connection with this Security Inslrument whether now or hereafter existing. The Related Documents are hereby made a part of this Security Inslrument by reference thereto, with the same force and effect as if fully set forth herein. . 02004-2006 Copyrighl Compli..ce 5)'11..... Ine. 340A-A268 - 2006.11.1 82 I'_~____DU.' P... I of7 www.complÍances).S.ems.com 800-968-8522 - Pili< 616-956-1868 Initials b-/ mlllmmllllllll~ 11111 000658 INDEBTEDNESS. This Security Instrument secures the principal amount shown above as may be evidenced by a promissory.. note or notes of even, _prior or subsequent date hereto, including future advQ.nc6$ imd. every .othel:. ." indebtedness of any and every kind now or hereafter owing from Mortgagor to Lender, howsoever created or arising, whether primary, secondary or contingent, together with any interest or chaiges provided in or arising out of such indebtedness, as well as the agreements and covenants of this Security Instrument and all Related Documents (hereinafter all referred to as the "Indebtedness"). MATURITY DATE. The Indebtedness, if not paid earlier, shall be due and payable on January 5, 2011. FUTURE ADVANCES. To ·the extent permitted by law, this Security Instrument will secure future advances as if such advances were made on the date of this Security Instrument regardless of the fact that from time to time there may be no balance due under the note and regardless of whether the Lender is obligated to make such future advances. ~; . CROSS COLLATERALIZATION. It is the expressed intent of Mortgagor to cross collateralize all of its Indebtedness and obligations to the Lender, howsoever arising and whensoever incurred. WARRANTIES. Mortgagor, for itself, its heirs, personal representatives, successors, and assigns, represents, warrants, covenants and agrees with Lender, its successors and assigns, as follows: Performance of Obligations. Mortgagor promises to perform all terms, conditions, and covenants of this Security Instrument and Related Documents in accordance with the terms contained therein. Defense and Title to Property. At the time of execution and delivery of this instrument, Mortgagor is lawfully seised of the estate hereby conveyed and has the exclusive right to mortgage, grant, convey and assign the Property. Mortgagor covenants that the Property is unencumbered and free of all liens, except for encumbrances of record acceptable to Lender. Further, Mortgagor covenants that Mortgagor will warrant and defend generally the title to the Property against any and all claims and demands whatsoever, subject to the easements, restrictions, or other encumbrances of record acceptable to Lender, as may be listed in the schedule of exceptions to coverage in any abstract of title or title insurance policy insuring Lender's interest in the Property. Condition of Property. The Mortgagor promises at all times to preserve and to maintain the Property ~d every part thereof in good repair, working order, and condition and will from time to time, make all needful and proper repairs so that ~e value of the Property shall not in any way be impaired. Removal of any Part of the Property. Mortgagor promises not to remove any part of the Property from its present location, except for replacement, maintenance and relocation in the ordinary course of business. Alterations to the Property. Mortgagor promises to abstain from the commission of any waste on the Property. Further, Mortgagor shall make no ma.terial alterations, additions or improvements of any type whatever to the Property, regardless of whether such alterations, additions or improvements would increase the value of the Property, nor permit anyone to do so except for tenant improvements and completion of items pursuant to approved plans and specifications, without Lender's prior written consent, which consent may be withheld by Lender in its sole discretion. Mortgagor will comply with al1laws and regulations of all public authorities having jurisdiction over the premises relating to the use, occupancy and maintenance thereof and shall upon request promptly submit to Lender evidence of such compliance. Due on Sale - Lender's Consent. Mortgagor shall not sell, further encumber or otherwise dispose of, except as herein provided, any or all of its interest in any part of or all of the Property without flISt obtaining the written consent of Lender. If any encumbrance, lien, transfer or sale or agreement for these is created, Lender may declare immediately due and payable, the entire balance of the Indebtedness. o 2004-2006 Copyri;ht CompUance Syst...... Inc. 340A-A268 - 2006.11.1 Sl rw'W--'""--"""" /£-: www.comp1iMces)Olems.com IIIO-968-UU - """ 616-9S6-1868 1nitials IIIIIIIIIIII~I II' 000659' Insurance. Mortgagor pr~mises to keep the Property insured against such risks and' in such form as may within the sole discretion of Lender be acceptable, causing Lender to be named as loss payee or if requested by Lender, as mortgagee, The insurance company shall be chosen by Mortgagor subject to Lender's approval, which shall not be unreasonably withheld. All insurance policies must provide that Lender will get a miDimum of 10 days notice prior to cancellation. At Lender's discretion, Mortgagor may be required to produce receipts of paid premiums and renewal policies. If Mortgagor fails to obtain the required coverage, Lender may do so at Mortgagor's expense. Mortgagor hereby directs each and every insurer of the Property to make payment of loss to Lender with the proceeds to be applied, only at Lender's option, to the repair and replacement of the damage or loss or to be applied to the Indebtedness with the surplus, if any, to be paid by Lender to Mortgagor. Payment of Taxes and Other Applicable Charges. Mortgagor promises to pay and to discharge liens, encumbrances, taxes, assessments, lease payments and any other charges relating to the Property when levied or assessed against Mortgagor or the Property. Environmental Laws and Hazardous or Toxic Materials. Mortgagor and every tenant. have been, are presently and shall continue to be in strict compliance with any applicable local, state and federal environmental laws and regulations. Further, neither Mortgagor nor any tenant shall manufacture, store, handle, discharge or dispose of hazardous or toxic materials as may be defmed by any state or federal law on the Property, except to the extent the existence of such materials has been presently disclosed in writing to Lender. Mortgagor will immediately notify Lender in writing of any assertion or claim made by any party as to the possible violation of applicable state and federal environmental laws including the location of any hazardous or toxic materials on or about the Property. Mortgagor indemnifies and holds Lender harmless from any liability or expense of whatsoever nature incurred directly or indirectly as a result of Mortgagor's violation of applicable local, state and federal environmental laws and regulations or Mortgagor's involvement with hazardous or toxic materials. Financial Information. Mortgagor agrees to supply Lender such financial and other information concerning its affairs and the status of any of its assets as Lender, from time to time, may reasonably request. Mortgagor further agrees to pennit Lender to verify acco1.Ults as well as to inspect, copy and to examine the books, records and files of Mortgagor. Lender's Right to Enter. The Lender or Lender's agents shall have the right and access to inspect the Property at all reasonable times in order to attend to Lender's interests and ensure compliance with the terms of this Security Instrument. If the Property, or any part thereof, shall require inspection, repair or maintenance which the Mortgagor has failed to provide, the Lender, after reasonable notice, may enter upon the Property to effect such obligation; and the cost thereof shall be added to the Indebtecfuess and paid on the Lender's demand by the Mortgagor. ASSIGNMENT OF LEASES AND RENTS. As additional security for the payment of the Indebtedness and the performance of the covenants contained herein, Mortgagor hereby assigns and transfers over to Lender all rents, income and profits ("Rents") under any present or future leases, subleases or licenses of the Property, including any guaranties, extensions, amendments or renewals thereof, from the use of the Property. So long as Mortgagor is not in default, Mortgagor may receive, collect and enjoy all Rents sccming from the Property, but not more than one month in advance of the due date. Lender may also require Mortgagor, tenant and any other user of the Property to make payments of Rents directly to Lender. However, by receiving any such payments, Len.der is not, and shall not be considered, an agent for any party or entity. Any amounts collected may, at the Lender's sole discretion, be applied to protect the Lender's interest in the Property, including but not limited to the payment of taxes and insurance premiums and to the Indebtedness. At Lender's sole discretion, all leases, subleases and licenses must first be approved by Lender. J 02004-2006 Copyrigh. Compliance S)'S1OD1S. Inc. 340A-A268 - 2006.11.182 I-~...·_....._-"""" - '-'"' . Ini,ials Æ---- - \V\vw.eompUanCES)'Ilmas.com 800.968-8S22 - Pax 616-9S6-1868 ·llmIIIIIIIIBD~~ III / 000660 CONDEMNATION. Mortgagor shall give Lender notice of any action taken or threate~ed to bè taken by private or public entities to appropriate the .Property..or any. part thereof, through condemnation, eminent domain or any other action. Further, Lender shall be pennitted to participate or intervene in any of the above described proceedings in any manner it shall at its sole discretion determine. Lender is hereby given full power, right and authority to receive and receipt for any and all damages awarded as a result of the full or partial taking or appropriation and in its sole discretion, to apply said awards to the Indebtedness, whether or not then due or otherwise in accordance with applicable law. Unless Lender otherwise agrees in writing, any application of proceeds to the Indebtedness shall not extend or postpone the due date of the payments due under the Indebtedness or change the amount of such payments. MORTGAGOR'S ASSURANCES. At any time, upon a request of Lender, Mortgagor will execute and deliver to the Lender, and if appropriate, cause to be recorded., such further mortgages, assignments, assignments of leases and rents, security agreements, pledges, fmancing statements, or such other document as Lender may require, in Lender's sole discretion, to effectuate, complete and to perfect as well as to continue to preserve the Indebtedness, or the lien or security interest created by this Security JD.strument ATTORNEY-IN-FACT. Mortgagor appoints Lender as attorney-in-fact on behalf of Mortgagor. If Mortgagor fails to fulfill any of Mortgagor's obligations under this Security Instrument or any Related Documents, including those obligations mentioned in the preceding paragraph, Lender as attorney-in-fact may fulfill the obligations without notice to Mortgagor. This power of attorney shall not be affected by the disability of the Mortgagor. EVENTS OF DEFAULT. the following events shall constitute default under this Security JD.strument (each an "Event of Default "): (a) Failure to make required payments when due under Indebtedness; (b) Failure to perform or keep any of the covenants of this Security Instrument or a default under any of the Related Documents; (c) The making of any oral or written statement or assertion to the Lender that is false or misleading in any material respect by Mortgagor or any person obligated on the Indebtedness; (d) The death, dissolution, insolvency, bankruptcy or receivership proceeding of Mortgagor or of any person or entity obligated on the Indebtedness; ( e) Any assignment by the Mortgagor for the benefit of the Mortgagor's creditors; (f) A material adverse change occurs in the fmancial condition, ownership or management of Mortgagor or any person obligated on the Indebtedness; or (g) The Lender deems itself insecure for any reason whatsoever. REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default, Lender may, without demand or notice, pay any or all taxes, assessments, premiums, and liens required to be paid by Mortgagor, effect any insurance provided for herein, make such repairs, cause the abstracts of title or title insurance policy and tax histories of the Property to be certified to date, or procure new abstracts of title or title insurance and tax histories in case none were furnished to it, and procure title reports covering the Property, including surveys. The amounts paid for any such purposes will be added to the Indebtedness and will bear interest at the rate of interest otherwise accruing on the Indebtedness until paid. In the event of foreclosure, the abstracts of title or title insurance shall become the property of the Lender. All abstracts of title, title insurance, tax histories, surveys, and other documents pertaining to the Indebtedness will remain in Lender's possession until the Indebtedness is paid in full. IN THE EVENT OF THE SALE OF THIS PROPERTY UNDER THE PROCEDURE FOR FORECLOSURE OF A SECURITY INSTRUMENT BY ADVERTISEMENT, AS PROVIDED BY APPLICABLE LAW, OR IN THE EVENT THE LENDER EXERCISES ITS RIGHTS UNDER TIlE ASSIGNMENT OF LEASES AND RENTS, THE MORTGAGOR HEREBY WAIVES ANY RIGHT TO ANY NOTICE OTHER THAN THAT PROVIDED FOR SPECIFICALLY BY STATUrE, OR TO ANY JUDICIAL HEARING PRIOR TO SUCH SALE OR OTHER EXERCISE OF RIGHTS. 020Q4.2006 Copyri¡ht Compllonc:. S)'Items.lnc. 340A-A26B - 2006.11.182 r-...-......--""" -- _.40C7 L hUtiols /~ P \11WW .corapliances)'ltl!!D1I.com 1()()'968-11522 - Fax 616·9S6-1868 m1l1111111111D111 'III I _\ 000661 Upon the occuxrence of an Event of Defa~t, Lender may, without notice unless required by law, and at its òption, declare the entire Indebtedness due and payable, as it maY'elect, regardless of the date or. dates.ofmaÍ!,lrity.thereof. and, if permitted by state law, is authorized and empowered to sell or to cause the Property to be sold at public auction, and to execute and deliver to the purchaser or purchasers at such sale any deeds of conveyance good and sufficient at law, pursuant to the statute in such case made and provided, and out of the proceeds of the sale to retain the sums then due hereunder and all costs and charges of the sale, including attorneys' fees, rendering any surplus to the party or parties entitled to it. If Lender chooses to invoke the power of sale, Lender or Trustee will provide notice of sale pursuant to applicable law. Any such sale or a sale made pursuant to a judgment or a decree for the foreclosure hereof may, at the option of Lender, be made en masse. The commencement of proceedings to foreclose this Mortgage in any manner authorized by law shall be deemed as exercise of the above option. Upon the occurrence of an Event of Default, Lender shall immediately be entitled to make application for and obtain the appointmeµt of a receiver for the Property and of the earnings, income, issue and profits of it, with the powers as the court making the appointments confers. Mortgagor hereby irrevocably consents to such appointment and waives notice of any application therefor. NO WAIVER. No delay or failure of Lender to exercise any right, remedy, power or privilege hereunder shall affect that right, remedy, power or privilege nor shall any single or partial exercise thereof preclude the exercise of any right, remedy, power or privilege. No Lender delay or failure to demand strict adherence to the terms of this Security Instrument shall be deemed to constitute a course of conduct inconsistent with Lender's right at any time, before or after an event of default, to demand strict adherence to the terms of this Security Instrument and the Related Documents. JOINT AND SEVERAL LIABll..lTY. If this Security Instrument should be signed by more than one person, all persons executing this Security Instrument agree that they shall be jointly and severally bound, where permitted by law. SURVIVAL. The Lender's rights in this Security Instrument will continue in its successors and assigns. This Security Instrument is binding on all heirs, executors, administrators, assigns and successors of the Mortgagor. NOTICES AND WAIVER OF NOTICE. Unless otherwise required by applicable law, any notice or demand given by Lender to any party is considered effective when it is deposited in the United States Mail with the appropriate postage, mailed to the address of the party given at the beginning of this Security Instrument unless an alternative address has been provided to Lender in writing. To the extent permitted by law, Mortgagor waives notice of Lender's acceptance of this Security Instrument, defenses based on suretyslúp, any defense arising from any election by Lender under the United States Bankruptcy Code, Uniform Commercial Code, as enacted in the state where the Lender is located or other applicable law or in equity, demand, notice of acceleration, notice of nonpayment, presentment, protest, notice of dishonor and any other notice. TO THE EXTENT PERMITTED BY LAW, MORTGAGOR WAIVES ANY RIGHT TO NOTICE, OTHER THAN THE NOTICE PROVIDED ABOVE, AND WAIVES ANY RIGHT TO ANY HEARING, JUDICIAL OR OTHERWISE, PRIOR TO THE LENDER EXERCISING ITS RIGHTS UNDER TIDS SECURITY INSTRUMENT. WAIVER OF APPRAISEMENT RIGHTS. Mortgagor waives all appraisement rights relating to the Property to the extent permitted by law. WAIVER OF HOMESTEAD EXEMPTION RIGHTS. Mortgagor hereby waives all homestead exemption rights relating to the Property to the extent permitted by law. LENDER'S EXPENSES. Mortgagor agrees to pay all expenses incurred by Lender in connection with enforcement of its rights under the Indebtedness, this Security Instrument or in the event Lender is made party to () 2004-2006 Copyri¡¡hl Compu....:. Sysl...., loc. 340A-A2G8 - 100G.II.182 r'-~-~---~ - //;:~ www.compliaacesYSltms..com 800-9GI-I522 - Fox 616-956-1868 m1l111111111l1D11 III I , ! I I f I ._1 '. . 000662 .. any litigation because of the existence of the Indebtedness or· this Security Instrument, as we1las court costs, collection charges andreasonableattomeys' fees and disbursements..... . ASSIGNABILITY. Lender may assign or otherwise transfer this Security Instrun:ient or any of Lender's rights under this Security Instrument without notice to Mortgagor. Mortgagor may not assign this Security Instrument or any part of the Security Instrument without the express written consent of Lender. GOVERNING LAW AND JURISDICTION. This Security Instrument will be governed by the laws of the State of Wyoming. SEVERABILITY. If a court of competent jurisdiction determines any term or provision of this Security Instrument is invalid or prohibited by applicable law, that term or provision will be ineffective to the extent required. .AJJ.y term or provision that has been determined to be invalid or prohibited will be severed from the rest of the Security Instrument without invalidating the remainder of either the affected provision or this Security Instrument WAIVER OF JURY TRIAL. All parties to this Mortgage waive any right to trial by jury to the extent allowed by law. This jury trial waiver applies to any claims or disputes related or incidental to the relationship established between the parties to this Mortgage. ORAL AGREEMENTS DISCLAJJ.v.[ER. This Security Instrument represents a final expression of the agreement between the parties. The agreement may Dot be contradicted by evidence of any alleged oral agreement. By signing this Security Instrument, each Mortgagor acknowledges that all provisions have been read and understood. Signed and sealed by Mortgagor (s): K & K Property Investments, LC By: Brent D. King Its: Member Date ~ ~CkJ. Krebs Its: Member Im~!cJ7 Date Witnessed by: Name: Date Name: Date 0200<1.2006 COnD&ht ComplIAnce Symms,lnc. 340A-A26B - 2006.1 1.1B2 1"'-'"....-......--""'" - /--; ......" . Inldl" ~ wwu'.compliauu;CS)'lltm!locom aoo-968·"22. Fax 616·956-1868 IIWIIIIIIIIIIDU ---- .------- _I BUSINESS ACKNOWLEDGMENT STATE OF UTAH \.CI\t Lore. COUNTY OF ~ Cf$ This instrument was acknowledged on the ['::"Jjr;i~!~;~IT~~;µ¡:F&;'J!¥.{f:!';>,:]~~If"_1!~;, by: ) ) ) 000663 Brent D. King, Member and Rick J. Krebs, Member on behalf of K & K Property Investments, LC, an Idaho Limited Liability Company, who personally appeared before me. rn witness whereof, I hereunto set my hand and official seal. My commission expires: .lt~rt!1~1~1!~~ri'm' June 'l't. 20 I \ (Official Seal) TillS INSTRUMENT PREPARED BY: America West Bank 476 Heritage Park Blvd. Suite 100 Layton, UT 84041 AFTER RECORDING RETURN TO: America West Bank 476 Heritage Park Blvd. Suite 100 Layton, UT 84041 l' .7 of7 www.complilnces).Stems.com 800-!l(jI~S22 - FIX 616-\1S6-1161 InilinJ. IImlllllllllllm - ~ . II . '-~...