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HomeMy WebLinkAbout954478MORTGAGE KNOW ALL MEN BY THESE PRESENTS, that on this /3" day of July, 2010, BST HOSPITALITY, LLC, a Wyoming Dakota limited liability company, herein designated as Mortgagor, whose mailing address is 2340 Taggart Rd. Rapid City, SD, 57701, to secure the payment of the principal sum of EIGHT HUNDRED AND TWENTY -FIVE THOUSAND DOLLARS ($825,000.00), as evidenced by a promissory note and any amendments thereof of even date herewith and payable to the order of BP SLICK PARTNERSHIP, a South Dakota General Partnership, whose mailing address is P.O. Box 967, Rapid City, SD, 57709, Mortgagee, and hereby mortgages and warrants to said Mortgagee, the following described real estate, situated in Lincoln County, State of Wyoming, hereby waiving and releasing any and all rights under the homestead exemption laws of said State, to -wit: Lots 1 and 2 of the BST Hospitality Addition to the City of Kemmerer, Lincoln County, Wyoming as described on the official plat filed on June 4, 2008 as Instrument No. 939494 of the records of the Lincoln County Clerk. TOGETHER WITH all improvements, appurtenances, hereditaments and all other things thereunto belonging or in anywise appertaining. SUBJECT, HOWEVER, to all easements, rights -of -way, covenants, reservations and restrictions of record or visible upon inspection. The Mortgagor hereby covenants and agrees that it is lawfully seized of said premises, that they are free from all encumbrances, except as noted herein, and hereby covenants to warrant and defend the title of said premises against the lawful claims of all persons whosoever. And the Mortgagor covenants and agrees with the Mortgagee as follows: 1. That it will pay the indebtedness as hereinbefore provided. The Mortgagor may prepay any or all of the principal sum of the debt at any time before maturity. 2. That the Mortgagor will pay all ground rents, taxes, assessments, water rents and other governmental or municipal charges, and other lawful charges including but not limited to mechanics and materialmen's liens and will promptly deliver the official receipts therefor to the said Mortgagee within 30 days of payment of the same. In default thereof, the Mortgagee in its sole discretion may pay the same, and all sums so paid will be added to and considered a part of the above indebtedness hereby secured, and will draw interest at the same rate, or in the alternative Mortgagee may declare a default and avail itself of all remedies hereunder. 3. That nothing will be done on or in connection with said property which may impair the Mortgagee's security hereunder, the Mortgagor will commit, permit or suffer no waste, impairment or deterioration of said property nor any part thereof, and said property will be continuously maintained in good and sightly order, repair and condition by the Mortgagor at its expense. 4. Mortgagor covenants and agrees that it will not sell and convey the premises without the written consent of the Mortgagee first being obtained, which consent Mortgagee shall not unreasonably withhold. 5. That in the event that there exists or may exist on the mortgage premises now or in the future any underground storage tanks (U.S.T.'s), hazardous substances, toxic substances or machinery or equipment capable of producing hazardous or toxic emissions or substances as defined by any federal, state or local law, Mortgagor will defend all claims arising therefrom, and will indemnify Mortgagee for any and all damages, including costs of clean up, and compliance, actually incurred by Mortgagee, and arising in any manner as a 1 9 W O n O n rn cri Z O m D iv 0 0 .p v Z v 00 cn co result of said underground storage tanks, hazardous or toxic substances or emissions. Any damages so incurred and paid by Mortgagee will be added to and be considered a part of the above indebtedness hereby secured, and will draw interest at the same rate. In addition, Mortgagor shall comply with all federal, state and local laws, regulations and ordinances, regarding said underground storage tanks, toxic and hazardous substances and emissions, including but not limited to provisions regarding monitoring devices, reporting requirements, and liability insurance requirements. Mortgagor shall provide proof of such compliance to Mortgagee upon request of Mortgagee. 6. That it will keep the improvements now existing or hereinafter erected on the said premises insured as may be required from time to time by the Mortgagee against loss by fire and other hazards, casualties, and contingencies in such amounts and for such periods as may be required by the Mortgagee, but in no event for any amount less than the outstanding balance hereunder and will pay promptly, when due, any premiums on such insurance. All insurance shall be carried in companies approved by the Mortgagee and the policies and renewals thereof shall be held by the Mortgagee and shall contain a full Mortgagee endorsement therein in favor of and in form acceptable to the Mortgagee. In an event of loss it will give immediate notice by mail to the Mortgagee, who may make proof of loss if not made promptly by the Mortgagor, and each insurance company concerned is hereby authorized and directed to make payment for such loss directly to the Mortgagee instead of the Mortgagor and the Mortgagee, jointly, and the insurance proceeds, or any part thereof, may be applied by the Mortgagee at its option either to the reduction of the indebtedness hereby secured or to the restoration or repair of the property damages. In an event of foreclosure of this mortgage or other transfer of title to the said premises in extinguishment of the indebtedness secured hereby, all right, title, and interest of the Mortgagor in and to any insurance policies then in force shall pass to the purchaser or grantee. 7. That in case the Mortgagor defaults in the payment of ground rents, if any, taxes, assessments, water, or other governmental or municipal charges, insurance premium payments 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 paragraph 3 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 incurred by the Mortgagee, as required by Mortgagee, with interest thereon from the date of payment, at the same rate as provided in the Note herein described, and the same shall be a lien on the said premises and be secured by the said Note and by these presents and in default of making such repayments, the whole amount hereby secured, if not then due, shall, if the said Mortgagee so elects, become due and payable forthwith, anything herein contained to the contrary notwithstanding. In the alternative Mortgagees may forego any such payment and declare a default hereunder, in Mortgagee's sole discretion. 8. That in the event the property covered hereby is sold under foreclosure and the proceeds are insufficient to pay the total indebtedness secured hereby, the Mortgagor binds itself to pay the unpaid balance and accruing interest thereon and the Mortgagee will be entitled to a deficiency judgment for all said amounts together with costs and reasonable attorneys fees incurred by Mortgagee. 9. Upon occurrence, with respect to any Mortgagor, assignee, maker, endorser or guarantor hereof, of any following: Calling of a meeting of creditors; application for, or appointment of, a receiver of any of them or their property; filing of a voluntary or involuntary petition under any of the provisions of the Bankruptcy Act or amendments thereto; issuance of a warrant or attachment; entry of a judgment; failure to pay, collect or remit any tax or tax deficiency, Federal, State or local, when assessed or due; death, dissolution; making, or sending notice of an intended bulk sale; mortgage or pledge of any property; suspension or liquidation of their usual business; failure, after demand, to furnish financial 2 "r .i.)eS information or to permit inspection of any books or records; default in payment or performance of the note secured by this mortgage or any other obligation to, or acquired in any manner by payee, or if the condition or affairs of any of them shall change so as in the opinion of the Mortgagees or other legal holder hereof, shall increase their credit risk the note and all other obligations, direct or contingent, of any maker or endorser hereof to payee shall become due and payable immediately without notice of demand. That in case default shall be made in the payment, when due, of the indebtedness hereby secured or of any installment thereof, or any part thereof, or in case of breach of any covenant or agreement herein contained, the whole of the then indebtedness secured hereby, inclusive of principal, interest, arrearages, ground rents, if any, taxes, assessments, water charges, expenditures for repairs or maintenance, together with all other sums payable pursuant to the provisions hereof, shall become immediately due and payable, at the option of the Mortgagee, although the period above limited for the payment thereof may not have expired, anything hereinbefore or in said Note contained to the contrary notwithstanding, 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 equity, as it may elect, or to foreclose this mortgage by advertisement and sale of the above described premises, at public vendue, 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 and in payment of all moneys expended or advanced by the Mortgagee pursuant to the provisions of paragraph 5 hereof, and then to the payment of 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. 10. That in case of any default whereby the right of foreclosure occurs hereunder, the Mortgagee shall be entitled to exclusive possession, use, and enjoyment of all property aforesaid, and to all rents, issues and profits thereof, from the accruing of such right and during the pendency of foreclosure proceedings and the period of redemption, if any there be. 11. This Mortgage is subordinate and junior to, and the mortgaged premises encumbered by, prior mortgages given by Mortgagor on the property to Security First Bank and the United States of America Small Business Administration and the Mortgagor shall fully pay and discharge said encumbrances and furnish proof of payment to Mortgagee on request. This Mortgage is also subordinate and junior to any and all liens filed against the mortgaged premises as of the date of executing hereof. 12. No failure by the Mortgagee or any legal holder hereof 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. 13. That the covenants herein shall bind, and the benefits and advantages shall inure to, the respective heirs, executors, administrators, successors, and assigns of the parties hereto. Whenever used, the singular number shall include the plural, the plural the singular, and the use of any gender shall include all genders. 14. Upon request of Mortgagor, Mortgagee, at Mortgagee's option prior to release of this Mortgage, may make future advances to Mortgagor. Such future advances, with interest thereon, shall be secured by this mortgage when evidenced by promissory notes 3 stating that said notes are secured hereby. 15. Mortgagor waives all rights of homestead exemption in the property and relinquishes all rights of curtesy and dower in the property. 16. All notices required hereunder, or required by the laws of the State of Wyoming regarding mortgages and foreclosure thereof shall be mailed to the parties at the following addresses: BST Hospitality, LLC 2340 Taggart Rd. Rapid City, SD, 57701 BP SLICK PARTNERSHIP P.O. Box 967 Rapid City, SD, 57709 It shall be the obligation of Mortgagor to notify Mortgagee in writing of any change in the address set out above. Mortgagee shall be entitled to rely upon the address set out above for all purposes hereunder, unless written notice of change is received from Mortgagor. IN WITNESS WHEREOF, the Mortgagor has set its hand(s) hereto this i ,S day of 7 2010. STATE OF $OLLTN DRf )SS. COUNTY OFPONIN6TDN) G This irtstrument was acknowledged before me by arr Pet. er -SOn Manager of BST, Hospitality, LLC, a Wyoming limited Iiat it ty company, this 1 L�) 'fh day of I V 2010. WITNESS my hand and official seal. My Commission Expires: 10 I CV9 01 B BST Hospitality, LLC By: 4 Manager Signature of Notarial Officer Notary Public Title