HomeMy WebLinkAbout940140
6010816796
SECOND MORTGAGE
(With Power of Sale)
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 THREE
HUNDRED THOUSAND AND NO/100 DOLLARS ($300,000.00) plus interest as set
forth and evidenced by an Adjustable Rate Promissory Note of even date 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 of U.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:
\.,0053.1.
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Commencing at corner 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 8945'22" West, 1321.57 feet to corner number 4 of
said Tract 62;
thence South 11 33'41" East, 576.83 feet to the 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
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 Kemmerer
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
RECEIVED 6/27/2008 at 12:15 PM
RECEIVING # 940140
BOOK: 698 PAGE: 531
JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER, WY
1
ÜO~532
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
17 00'53" 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 define 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;
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
define 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.
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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 defined 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 = 4 46'29", 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 S liral (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 with 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 hereafter attached to or used in connection with said
Premises.
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The Mortgagor covenants and agrees with the Mortgagee 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, Mortgagee 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. The Receiver may serve without bond, if
permitted by law.
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 utilities 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
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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 default.
(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. 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.
(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) Mortgagee'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.
(iv) 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
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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 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 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 cont~actualliability,
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 and personal property related thereto.
(iii) 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 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 value of the
Improvements.
(v) Such other insurance as Mortgagee may reasonably
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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 "An 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
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
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proceed to enforce the provisions of this 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 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
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.
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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 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.
t>00539
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 eminent 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 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.
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(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 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:
MortQaQee
Kemmerer BLM, L.L.C.
Victor R. Blackmon, Manager
112 North Hearne
Franklin, Texas 77859
Revised Second Lien M0l1gage - Kemmerer.doc
MortqaQor
Regions Bank
Andrew Ozuna
One International Centre
100 NE Loop 410, Suite 1425
San Antonio, Texas 78216
10
\)0054:1
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.
SECTION TWELVE
PARTIAL RELEASE OF LIEN
Notwithstanding anything contained in the Second Mortgage to the
contrary, Mortgagee will release its liens under this Mortgage and its first lien
mortgage instruments upon any portion of the Property which does not represent
a portion of the real property dedicated to the Kemmerer BLM project, upon
Mortgagor's satisfaction of the following terms and conditions:
(a) No default or event which, with the passage of time or the giving of
notice, or both, would constitute a default shall have occurred under
this instrument or under any other document or instrument now or
hereafter evidencing, guaranteeing or securing payment of all or
any part of the Note which has not been waived by the Mortgagee
or cured to the satisfaction of the Mortgagee;
(b) The released acreage shall be surveyed by metes and bounds
description, with Mortgagee holding the right to approve the metes
and bounds description of the acreage ,to be released in
Mortgagee's sole discretion. The release consideration (the
"Release Amount") shall be sufficient to ensure that Mortgagor has
paid Mortgagee $67,000.00 for the portion of the real property
which is not utilized for the GSA Building, Parking, and Related
Improvements making up the Kemmerer BLM project. Mortgagee
shall have the right to determine whether the entire Release
Amount is due for any acreage proposed to be released by
Mortgagor.
The Mortgagor shall pay the Mortgagee the Release Amount, which
amount paid shall be applied towards repayment of the principal of
the Note pursuant to the terms set forth herein, and interest shall
immediately cease on the amounts prepaid; provided in no event,
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however, shall the Mortgagor be required to pay more principal
than the unpaid principal balance of the Note in order to obtain the
fin.al release of the Second Mortgage.
(c) Mortgagor shall provide at its own expense a legal description of
the Property to be released, acceptable to Mortgagee. Additionally,
Mortgagor shall bear all other costs related to the release, including
Mortgagee's legal costs and including, if applicable, the payment of
any Prepayment Fee (as defined in the Note) which may be due on
such portion of the Note to be paid in connection with the Release.
(d) Mortgagor will ensure that the title insurance provided to the
Mortgagee remains in full force and effect with respect to the
Property which will continue to secure payment of the Note
subsequent to the partial release (collectively the "Remaining
Property") or the Mortgagor will deliver a new title insurance policy
insuring the Mortgagee's interest in the Remaining Property, in
either event subject only to the liens referred to in the title policy
obtained on even date herewith;
(e) In addition to the Release Amount, Mortgagor shall also pay the
Prepayment Fee, if any, which becomes due on such Prepayment
Amount, as said terms are defined in Paragraph 5 of the Note.
(f) The Release Amount shall apply towards the principal payments
due which shall become due under the Note in inverse order of
maturity.
SIGNATURE PAGE FOLLOWS THIS PAGE.
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IN WITNESS WHEREOF, Mortgagor has duly executed this Mortgage on the
l.B..- day of June, 2008.
KEMMERER BLM, L.L.C.,
a Wyoming limited liability company
By:ka;~
Victor R. Blackmon, Manager
.......-
STATE OF Jet05 )
~~ )ss
COUNTY 0 0 )
\ () The above and foregoing instrument was acknowledged before me this
~ day of June, 2008, by Victor R. Blackmon, Manager of Kemmerer BLM,
L.L.C., a Wyoming limited liability company.
WITNESS my hand and official seal.
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AMBER NICHOLE CLAY
Notary Public, State of Texas
My Commission Expires
March 14,2012
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otary Public -=-=..- u·,
My Commission Expires:
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