Legal 6 col x 10-3/4”
0806 0813
NOTICE OF TRUSTEE’S SALE
Notice is hereby given by the undersigned Substitute Trustee, in accordance with the provisions of that certain Deed of Trust, Leasehold Deed of Trust, Security Agreement, Assignment of Rents and Leases, Financing Statement, Fixture Filing and As-Extracted Collateral Filing (West Virginia) made by Southeastern Land, LLC, a Kentucky limited liability company (“Mortgagor”), to Stephen J. Golder, Trustee, dated August 28, 2019 and recorded in the Office of the Clerk of the County Commission of Clay County, West Virginia (the “Clerk’s Office”) in Deed of Trust Book 145, Page 550 (“Deed of Trust”) securing the payment of sums due to Continental Heritage Insurance Company, a Florida insurance company (“Lender”), as surety and as agent for other sureties under that certain General Indemnity Agreement dated as of July 29, 2016 in the amount of Ninety-Eight Million Two Hundred Thirty Thousand Two Hundred Five Dollars ($98,230,205.00). By the terms and conditions of the Deed of Trust, Lender appointed Maggie B. Burrus of the law firm of Bailey & Glasser, LLP to serve as Substitute Trustee under the Deed of Trust pursuant to that certain Notice of Appointment of Substitute Trustee, dated as of July 24, 2020 and recorded in the Clerk’s Office in Miscellaneous Book 35, Page 614. Mortgagor defaulted under the terms of the Deed of Trust and the undersigned Substitute Trustee will sell at public auction on August 31, 2020 at 4:00 p.m. at the front door of the Clay County Courthouse located at 246 Main St., Clay, West Virginia, 25043 certain real property located in Clay County, West Virginia, being more particularly described as follows:
All of the property and interests acquired by Mortgagor from Nicholas-Clay Land & Mineral, Inc., a Virginia corporation, and Braxton-Clay Land & Mineral, Inc., a West Virginia corporation, by Special Warranty Deed dated August 1, 2016, of record in Clay County, West Virginia, Deed Book 216, Page 965 (the “Source Deed”).
Together with all easements, permits, licenses, servitudes, rights-of-way, and other real property agreements identified that pertain to such property, including but not limited to those items listed in the Source Deed. The property described herein is part of the area depicted on Exhibit C attached to the Deed of Trust and incorporated herein by reference.
The Property also includes all of Mortgagor’s owned real property and owned mineral interests depicted on Exhibit C attached to the Deed of Trust, whether acquired prior to the date of the Source Deed, between the date of the Source Deed and the date of the Deed of Trust, or after the date of the Deed of Trust.
The interests described above are subject to the exceptions and reservations set forth in the Source Deed and the Deed of Trust. The legal descriptions of the coal tracts, coal seams, or other real estate contained in the instruments identified above are fully incorporated herein by reference with the same effect as if said legal descriptions were set forth herein in their entirety.
Leasehold Interests and Contract Rights:
All of Mortgagor’s rights, including leasehold rights, minerals rights and other contract rights, under the following leases and agreements described in Exhibit B of the Deed of Trust:
1. Lease dated October 20, 1993 for 815 acres in Clay County of record in the Office of the Clerk of the
County Commission of Clay County, West Virginia in Deed Book 50, Page 744.
2. Lease dated April 1, 2003 for 2,071 acres in Clay County of record in the Office of the Clerk of the
County Commission of Clay County, West Virginia in Deed Book 49, at Page 440.
3. Lease dated June 15, 2001 for 123 acres in Clay County of record in the Office of the Clerk of the
County Commission of Clay County, West Virginia in Deed Book 48, at Page 848.
4. Lease dated December 18, 2011 for 23.17 acres in Clay County of record in the Office of the Clerk of the County Commission of Clay County, West Virginia in Deed Book 29, at Page 335.
5. Lease dated June 16, 2001 for 10 acres in Clay County of record in the Office of the Clerk of the
County Commission of Clay County, West Virginia in Deed Book 67, at Page 556.
6. Lease dated May 29, 2001 for 152.49 acres in Clay County of record in the Office of the Clerk of the
County Commission of Clay County, West Virginia in Deed Book 67, at Page 527.
7. Lease dated June 19, 2001 for 23.43 acres in Clay County of record in the Office of the Clerk of the
County Commission of Clay County, West Virginia in Deed Book 67, at Page 548.
8. Lease dated June 11, 2001 for 26 acres in Clay County of record in the Office of the Clerk of the
County Commission of Clay County, West Virginia in Deed Book 48, at Page 853.
9. Lease dated June 27, 2001 for 10 acres in Clay County of record in the Office of the Clerk of the
County Commission of Clay County, West Virginia in Deed Book 48, at Page 843.
10. Lease dated November 15, 2001 for 10.80 acres in Clay County of record in the Office of the Clerk
of the County Commission of Clay County, West Virginia in Deed Book 48, at Page 864.
11. Lease dated October 18, 2001 for 9.75 acres in Clay County of record in the Office of the Clerk of
the County Commission of Clay County, West Virginia in Deed Book 29, at Page 266.
12. Lease dated June 15, 2001 for 35 acres in Clay County of record in the Office of the Clerk of the
County Commission of Clay County, West Virginia in Deed Book 48, at Page 857.
13. Lease dated February 12, 2009 for 37.50 acres in Clay County and Nicholas County of record in the
Office of the Clerk of the County Commission of Clay County, West Virginia in Deed Book 51, at
Page 254 and of record in the Office of the Clerk of the County Commission of Nicholas County,
West Virginia in Deed Book 71, at Page 256.
14. Lease dated November 9, 2009 for 0.5 acres in Clay County of record in the Office of the Clerk of
the County Commission of Clay County, West Virginia in Deed Book 51, at Page 560.
15. Lease dated February 19, 2009 for 65.75 acres in Clay County of record in the Office of the Clerk of
the County Commission of Clay County, West Virginia in Deed Book 71, at Page 252.
The foregoing property and leasehold interests, as applicable, were acquired by Mortgagor:
(i) pursuant to that certain Assignment and Assumption Agreement dated August 1, 2016 by and
among Braxton-Clay Land and Mineral, Inc., a West Virginia corporation, and Mortgagor, of
record in the Office of the Clerk of the County Commission of Clay County, West Virginia in
Assignment Book 23, Page 689;
(ii) pursuant to that certain Assignment and Assumption Agreement dated October 20, 2016 by and
among Amvest West Virginia Coal, LLC, a West Virginia limited liability company, and
Mortgagor, of record in the Office of the Clerk of the County Commission of Clay County, West
Virginia in Assignment Book 23, Page 803; and
(iii) pursuant to that certain Assignment and Assumption Agreement dated August 1, 2016 by and
among Braxton-Clay Land & Mineral, Inc., a West Virginia corporation, Amvest West Virginia
Coal, LLC, a West Virginia limited liability company, Nicholas-Clay Land & Mineral, Inc., a
West Virginia corporation, Peters Creek Mineral Services, Inc., a Virginia corporation, Terry
Eagle Limited Partnership, a West Virginia limited partnership, Terry Eagle Coal Company L.L.C., a West Virginia limited liability company, FOLA Coal Company, L.L.C., a West Virginia
limited liability company, Little Eagle Coal Company, L.L.C., a West Virginia limited liability
company, and Mortgagor, of record in the Office of the Clerk of the County Commission of Clay
County, West Virginia in Assignment Book 23, Page 671.
Together with the following:
(a) all coal and other minerals (including, without limitation, coal, oil, gas and other solid, liquid and gaseous hydrocarbons as well as limestone) owned by Mortgagor or leased to Mortgagor, located upon, under or in the Property, included within the Property in place and as produced and extracted (as produced and extracted, and including, but not limited to, “as-extracted collateral” as defined in the UCC, the “as-extracted collateral”), and all rights, privileges, titles and interests appurtenant and relating thereto and in connection therewith (including, without limitation, rights, privileges, titles and interests for the development, production, extraction, processing, treatment, storage, transportation and sale and other disposition of minerals and all contracts and other agreements relating to such activities as well as all accounts, accounts receivable, contract rights, other rights to the payments of monies, chattel paper and general intangibles arising from or relating to such activities) (the “Mineral Interests”);
(b) all buildings, structures and improvements of Borrower, now or at any time situated, placed or constructed upon or under the Property (the “Improvements”; the Property and Improvements are collectively referred to as the “Premises”);
(c) all materials, supplies, equipment (including, but not limited to, “equipment” as defined in the UCC), apparatus, standing timber and other goods attached to or installed in any of the Improvements or the Property, and water, gas, electrical, telephone, storm and sanitary sewer facilities and all other utilities and fixtures (including, but not limited to, “fixtures” as defined in the UCC) placed or constructed upon the Property whether or not situated in easements (the “Fixtures”);
(d) all goods, inventory, cut timber, accounts, general intangibles, instruments, documents, contract rights, chattel paper, equipment, and other personal property of any kind or character (including, but not limited to, “goods,” “inventory,” “accounts,” “general intangibles,” “instruments,” “documents,” “contract rights,” “chattel paper,” and “equipment” as defined in the UCC) as now or hereafter placed upon, used in connection with, arising from or otherwise related to the Premises (the “Personalty”);
(e) all reserves, escrows or impounds required under the Bonds and all deposit accounts (including, but not limited to, “deposit accounts” as defined in the UCC) maintained by Mortgagor with respect to the Mortgaged Property (the “Deposit Accounts”)
(f) all leases, licenses, concessions, occupancy agreements or other agreements (written or oral, now or hereafter in effect), including, without limitation, contract mining agreements, which grant to any Person, other than Mortgagor, a possessory interest in, or the right to use, all or any part of the Property, together with all related security and other deposits (as any of the foregoing may be supplemented, amended, restated, replaced, or modified from time to time, each a “Lease”, and collectively the “Leases”);
(g) all of the rents, revenues, royalties, income, proceeds, profits, accounts receivable, security and other types of deposits, and other benefits paid or payable to Mortgagor by parties to the Leases or otherwise, for using, leasing, licensing, possessing, operating from, residing in, selling or otherwise enjoying all or any part of the Property (the “Rents”);
(h) all other agreements, such as constructions contracts, architects’ agreements, engineers’ contracts, utility contracts, maintenance agreements, management agreements, service contracts, listing agreements, guaranties, warranties, all permits (subject to any required regulatory approval), licenses, certificates and entitlements in any way relating to the use, occupancy, operation, maintenance, enjoyment or ownership of all or any part of the Property (as any of the foregoing may be supplemented, amended, restated, renewed, replaced, or modified from time to time, each a “Permit”, and collectively the “Permits”);
(i) all property tax refunds payable with respect to all or any part of the Property (the “Tax Refunds”); and
(j) all insurance policies, unearned premiums therefor and proceeds from such policies covering any of the foregoing described in clauses (a) through and including (i) (the “Insurance”);
(k) all awards, damages, remunerations, reimbursements, settlements or compensation made by any governmental authority pertaining to any condemnation or other taking ( or any purchase in lieu thereof) of all or any part of the Property and any other property (the “Condemnation Awards”);
(l) all rights, privileges, tenements, hereditaments, rights-of-way, easements, appendages and appurtenances appertaining to all or any part of the Property, Mineral Interests, Fixtures, Personalty and Leases; and
(m) all accessions to, products of, and replacements and substitutions for any of the foregoing in clauses (a) through and including (I) and all proceeds thereof (including, but not limited to, “proceeds” and “accessions” as defined in the UCC) (the “Proceeds”).
TERMS OF SALE
Said property will be sold for cash in hand on date of sale, or under any different, other, or additional sale terms as may be determined to be appropriate or advisable in the reasonable discretion of the Substitute Trustee, by auction to the highest bidder. The sale shall be further subject to the following:
1. Real estate taxes delinquent, due or payable or to become due and payable;
2. Any statutory lien or liens that may affect the property;
3. All covenants, conditions, restrictions, reservations, easement, rights-of-way and other matters of
record in the chain of title to the property, or which may be visible form a physical inspection.
4. The above property will be sold “AS IS, WHERE IS,” in the present condition and with all faults and
defects, if any, and without any warranty or representation, express or implied.
5. The rights of parties in possession of such property, if any.
6. The undersigned Substitute Trustee shall have the right to postpone, continue, and/or adjourn the sale
of such property without notice other than by oral proclamation at the time and place designated for
such sale and/or the posting of notice at the courthouse prior thereto. Such postponement, continua-
tion or adjournment may be for a period of time deemed expedient by the beneficial owner and shall
not be construed to be a waiver of the beneficial owner’s right to conduct said sale.
7. The undersigned Substitute Trustee expressly reserves the right to reject any and all bids.
8. The undersigned Substitute Trustee shall have the right to offer such property for sale and to sell,
grant, convey, transfer, and dispose of such property as separate and independent lots, parcels and/or
tracts or as a whole, as the Substitute Trustee shall determine, and in such order as the Substitute
Trustee shall determine.
9. The successful purchaser(s), if any, as to and in relation to each respective lot, parcel and/or tract in
the event the same shall be sold separately and independently, shall be required to deliver a deposit
equal to ten percent (10%) of the bid price in cash on the foreclosure date and close on the property
on the fifteenth (15th) day following the foreclosure date, and shall be required to execute and
deliver a memorandum of sale and purchase with the undersigned Substitute Trustee immediately
following the conclusion of the sale of such property, a proforma version of which shall be available
for review and inspection prior to the sale of such property.
10. The successful purchaser(s), if any, shall be required to pay all excise taxes and recording fees connected and associated with the sale and transfer of such property by the undersigned Substitute Trustee. Any inquiries regarding this sale may be directed to Maggie B. Burrus, Substitute Trustee, Bailey & Glasser, LLP, 209 Capitol St., Charleston, West Virginia 25301, Telephone: (304) 345-6555.
Dated this 31st day of July, 2020.
Maggie B. Burrus, Substitute Trustee