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Home My WebLink About937409 Mar J ZUUH 14;UZ IJII1ij/UJl '. Recording Requested by: WHEN RECORDED M.AJL TO: Western AgCredit, PCA 10980 South 10rdan Gateway . P.O. Box 95850 . South Jordan, Utah 84095-0850 RECEIVED 3/6/2008 at 10:37 AM RECEIVING # 937409 BOOK: 688 PAGE: 801 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY 000801. Space AbOýC Thie Unc: Por R~dm's Usa Customer Numb~r: 0007001996 REAL ESTATE MORTGAGE, FIXTURE FILING AND SECURITY AGREEMENT THIS MORTGAGE is made this 29th day of February, 2008, between NORTHCOM 28~ LLC,. a Utah Limited LiabiUty Company hereinafter called ''Mortgagor", and Western AgCrecUt, PCA hereinafter called "Mortgagee", a corporation, existing and operating under the Farm Credit Act of 1971, as amended, having its principal place of business in South Jordan, Utah. WITNESSEm: That Mortgagor IRREVOCAnL Y GMm'S, BARGAINS, SELLS, CONVEYS ANI> ASSIGNS unto Mortgagee together with right of enUy and possession the following deacribed real property situated in the. County of Lincoln, State of Wyoming, described in·ExhSbit "A". TOGETHER WITH: all buildings, strllctures, equipment, fixture, (including trees, vines and shrubs) IU1d improvements of every kind and description now or hereafter constructed or placed thereon; all standing timber and timber to be cut located thereon; aU existing and fi.1ture water rights, however evidenced. including inigation and watering equipment and systems, ditches, laterals, conduits, and rights-of-way used to convey such water or to drain the above-described property, all of which rights are hereby made appurtenant to the property, and all pumping plants, 'electrical generators, wind machines,' and fencing and storage tanks. now or hereafter used in connection with the property, aJI.ofwhich are hereby declared to be fixtures; aU existing and future ~g rights, leases. pennits and licenses; aU oUt gas~ and mineral leases, permits and rights used with the property; all tenementS, hereditaments. easements,' rights-of-way and appurtenances to the property; and all right; title. and interest at any time of Mortgagor (or any of its bailees, agents, or instrumentalities), whether now existing or hereafter arising or acquired, whether direct or indirect, whether owned legally, of record, equitably or beneficiaUy, whether comtitUting real or personal property (or subjeot to any' other characterizatiom), whether created or authorized under existing or future laws or regulatiòns, and however arising in, including without limitation, the water. water rights and other assets and items desoribed below in subparagraphs (a) through' (h) which shall collectively be called "Water Assets" (hereafter collectively referred to as the "Property"). References to ''Water'' and ''Water Rights" are used herein in the broadest and most comprehensive sense of the term(s). The term "Water" includes water rights and right to water or whatever rights to money, proceeds,·property or othe¡: benefits'are exchanged or received for or on acc:ount of any Water Assets or any conservation or other nonuse of water, including whatever rights are achieved by depositing one's shares of any Water Assets in any water bank or 'Yitb any water authority, or any other water reallocation rights: . Fonn 1355 . Page 1 of9 ~. 000802 a. All water (including any water inventor.y in storage), water rightS. and entitJen1en~.other.riabts to water BlJd other rights to receive water or water rights of every kind or nature whatsoever including (i) the groundwater on, . under. pumped from or otherwise available to the Property, whether as the'result of groundwater rights, contractual rights or otherwise, (ii) Mortgagor.'s right to remove and extrBct any such groundwater including any pennits, rights or Heenses granted by any sovemmental authority or agency. or any rights granted or created by any use, easements, covenant, agreement or contract with any person or entity, (üi) any rights to whieh the Property Is entitled with respect to surfàce water, whether such right is appropriative, riparian, prescriptive, decreed or otherwise and whether or not pursuant to permit or other governmental authorization, or the right to store any such water. (Iv) any water, water right, water allocation, distribution right, delivery ~ght, water storage right, or other water-related entitlement appurtenant or otherwise applicable to the :Property by.virtue of the Property being situated within the boundaries of any district, agency, or other governmental entity or within the bounduries of any private water company, mutual water company, or other non-governmental entity; b. All stock, interest or rights (including any water allocations, voting or decision rights) in any entity, together with any and IUl rights iÌ'OI1l any entity or other person to acquire, receive, exchange, sell, lease, or otherwise transfer any water or other Water Assets, to store, deposit or otherwise create water credits in a water bank or similar or other arrangement for allooating water, to transport or deliver water, or otherwise to deal with any Water Asset; c. All licenses, pernrlts, approvals, contracts decrees, rights and interest to acquire or appropriate any water or other Water Assets, Water bank or other credits evidencing any right to water or other Water Assets, to store, cany, transport or deliver water or other Water Assets, to sell, lease. exchange, or otherwise transfer any water or other Water Asset, or to change the point for diversion of water, the Joeation of any water or Water Asset, the place of use ohoy water or Water Asset, or the purpose of the use of any water or Water Asset; . d.. All rights, claims, causes of action, judgments, awards, and Dther judicial, arbiter or administrative relief in any way relating to any water or Water Asset; e. All storage and treatment rights 'for any water or any other Water Asset, whether on or off the Property or other property of Mortgagor, together with aU storage tanks, and other equipment used or usable in connection with such storage and any water bank deposit credits, deposit accoWlts or other rights arising on aççount of the storage or nonuse of any water or any water or any other Water Asset; f. All rights to transport, CIUT)', allocate or otherwise' deliver water or other Water Assets by any' means wherever located; g. All guaranties, WIUT81lties, marketing, management or service contracts, indemnity agreements, and water right agreement&, other watër related contmcts and water reallocation rights, all insurance policies regardiñg or relating to my Watcr Asset; h: All rents, issues, profits, proceeds and other accounts, instruments, chattel paper, con1ract rights, general intangibles, deposit accounts, and other rights to payment arising fÌ'om or.on account of my use, nonUBe, salo, lease, transfer or other disposition of any Water Asset. Absolute Assignment of AU Revenue From Water Assets - Mortgagor hereby absolutely and unconditionally assigns to Mortgagee all proceeds, rents, issues and profits from any use (apart fi:om watmng plants on the Property or other ordinary use on tht Property), nonuse, sale, lease, transfer or disposition of any kind of any water or any other Water Assert subject to a Hen in favor of Mortgagee. That assignment shall be perfected automatically without appointment of a receiver or Mortgagee beconiing a ttlortgagee in possession md Mortgagee shaJJ have the right, before or a:(\er the occurrence of any default or event of demult, to notifÿ any account debtor to pay all amounts owing with respect to those proceeds, rents. issues and profits directly to Mortgagee. Except as otherwise agreed in writing by Mortgagee, Mortgagee may apply any such collection (and any rents, issues, profits and proceeds) to any indebtedness owed to Mortgagee in any order, priority or manner desired by Mortgagee. MORTGAGOR ABSOLUTELY AND UNCONDITIONALLY ASSIGNS, transfer$, conveys and sets over to Mortgagee all the rents. royalties, issues, profits, revenue, income and other benefits of the propeny arising iÌ'om the Fonn 1355 Page 2 of9. Mar j LUUH 14=UL I'lJ/U/Ujl ". " 000803 use or enjoyment of all or any portion thereof or ftom any lease, mineral lease, or agreement pertaining thereto (collectively. the "Runts"); SUBJECT, HOWEVER., to· the right, power and authority giv.en to and conferred upon . Mortgagor by Paragraph B.3 hereof. PERSONAL PROPERTY SECURITY AGREÈMENT: All of the Property wi11 be considered to the fullest extent ofthe law to be real property for purposes of this Mortgage. To the extent that any of the Property, (including without limitation any Water Assots or fixtures), is deemed to constitute, is adjudicated to be, 01' declared to be personal property, this Mortgage shall also be deemed to be a security agreement. Mortgagor does hereby create.and grant to Mortgagee a security interest.in all such personål property described herein; IUld further, grants to Mortgagee all of the rights and remedies of a secured pll11:y under the Uniform Commercial Code and other applicable state.laW, whioh rights are cumulative. . FIXTURE FJLING: This Mortgage shall also be deemed to be a fOOute filing under the Uniform Commercial Code and is to be recorded in the county real estate records. FOR TIlE PURPOSE OF SECURING: (I) payment of the indebtedness or obligations evidenced by the following promissory note(s) and/or guaranties executed by Mortgagor and/or others to the MortgQgee at the times, in the manner and with interest as therein set forth (notes may "ontain variable or adjustable rate provisions): [X] a PromiBsory Note or a Suppl~ent to Master Loan Agreement dated as of February 29, 2008, in the stated principal amount of $490,OOO~OO. (2) The payment of such additional loans or advances, including advances under a revolving line of credit, with interest thereon, as here,after may be made to Mortgagor, or Mortgagor's sucQessors or assigns, and/or to pries whose obligation Mortgagor is guaranteeing, evidenced by a promissory note or otherwise and any obligations evidenced by any guaranties executed by Mortgagor in favor of Mortgagee; PROVIDED HOWEVER. THAT, such additional loans advances guaranty obligations shall be secured by this Mortgage only if the 'promissory note, guaranty, or other document evidenciDg such loans or advances shall recite that it is to be secured by this Mortgage; (3) the paYment of any substitute notes, renewals, reamortizations, and extenšions of all indebtedness secured by this Mortgage; (4) the performance of every obligation and agreement of Mortgagor whether contained or incorporated by reference in this Mortgage, or contained in any loan document or gUaranty executed by Mortgagor in favor of Mortgagee, with respect to any loan, advance, or guaranty secured by this Mortgage; and (S) the payment of all sums expended or advanced by Mortgagee under or pursuant to the terms of this Mortgage, together with interest thereon as herein provided. The continuing validity and priority of this Mortgage as security for future loans, advances, or guaranties shall not be impaired by the fact that at certain times bereafter there may exist no outstanding . indebtedness 1Ì'om Mortgagor to Mortgagee or no co.mnnttnent to make loans or advances. . A. TO PROTECf THE SECURITY OF TmS MORTGAGE, MORTGAGOR AGREES: 1. To use loan proceeds solely for the purposes set forth in. the loan application(sl or agreements to comply with the Farm Credit Act of 1971, as amended, and/or the regulations of the Farm Credit AdministJ'ation, now existing or as hereafter amended. To keep the Property in good condition, working order and repair; care for the Property in accordance with standards of good husbandry and to keep an trees, vines and crops on said land proper1y cultivate~ irrigated, fertilized. sprayed, and fumigated; not to remove, destroy or suffer the removal or destruction of any building, fence, canal, well or other improvements or fixtures thereon; not to remove, replace or alter any horticultural or viticultural tree, vine or shrub planted thereon without the prior written consent of Mortgagee, except in 1¡he ordinmy course of business; to complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged or destroyed thereon; to comply with. aU laws, covenants and restrictions .' åffecting the Property; not to commit or permit waste thereof; not to coIIlMit. !iIU1:Ïer or permit añy act upon the Property in violation of laW; to do all other acts whicb fi'om the character m·. use of the ·Property·may. be reasonably necessary, the speciijc enumerations herein not exciuding the general; to observe and perfonn all obligations ofMottgagor under any lease of the Property. 2. Forin 1355 Page 3 of9 ~. 000804 ·3. To provide, maintain and. deliver to Mortgagee fire and all other types ofinsunmce of.tbe type and m amounts lIS Mortgagee ma)' require, with loss payable c1/1.\l,$es solely in favor of Mortgagee. In the event of toss, the insurance proceeds, or any part thereD~ may be applied by Mortgagee, at its option, to the reduotion of the indebtedness hereby secured or to the restoration 'or repair óf the property damaged. In' the event that the Mortgagor sha11 fail to provide satisfactory hazard insurance, Mortgagee may procure, on Mortgagor's behaJ.t: ins\µ'ance in favor of Mortgagee alone. If insurance cannot be secured by Mortgagor to provide the required coverage, such inability &hall constitute an event of default hefeunder. . 4. To appear in and litigate any action or proceeding purporting to affect the security hereof, the title to the Property, or. the rights or powers of Mortgagee; Mortgagee ma.y appear in IUld litigate an)' such action or proceedings, including au)' bankruptcy, partition or condemnation proceeding, affecting the Property, or Mortgagee's interest therein, in which event Mortgagor agrees to pay all costs and expenses thereof, including attorney's fees and costs of securing evidl!lDce oftit!e. 5. To pay on or before the due date all taxes and assessments affecting the Property, including all assessments 'upon water company stock and all rents, assessments and charges for water, appurtenant to or used in cOWlection with the Property; to pay, when due, aU encumbrances, charges, and liens, on the PJ'operty or any part thereo~ which at any timl!l appear to be prior or superior hereto. 6, In case of iUÌy suit to foreclose this Mortgage or to collect any charge arising out of the debt-hereby securedþ or of any suit which the Mortgagee may deem necessary to prosecute or defend to effect or protect the lien herein, including any proceeding in bankruptcy, or if Mortgagee retainB an attorney' to advise Mortgagee in connection with this Mortgage or any other agreement related to the indebtedness secured by this Mortgage, Mortgagor agrees to pay a reasonable $1U11 as attorney's fees and all costs and legal expenses in connection with said suit, and further Itgrees to pay the reasonable costs of searching the recordS and abstracting or insuring the title, and such sums. costs and expenses shall be secured hereby and shall be included iJ,1 any decree of foreclosure. The fees and costs described herein and elsewhere in this Mortgage shall be in addition to those set forth in the loan agreement or any other written agreement between Mo.rtgagot and Mortgagee. . . 7. Should Mortgagor fail to me any payment or to do any act as provided for in this Mortgage, then Mortgagee, 'but without obligation to do so and without notice to or demand upon Mortgagor and without releasing Mortgagor from any obligation hereof, may: make or do the same in such manner and to such extent as either may deem necesslU)' to protect the Property, Mo~øagee being authorized to entl!lr upon the Property for such purposes; commence, appear in and litigate an)' á.Ction or proceeding purporting to aftèçt the security hereof or the rights or powers ofMortgugèe, . including any.ba.nkmptcy proceeding affecting thePro~; pay, purchase, contest, or cotnpromis~ any encumbrance, charge or lion which in the judgment of either appears to be priOt' or superior hereto; and in exercising any such powers, incur any liability, expend whatever amounts in its absolute discretion it may deem neçessary tþerefore, including a.ttomey1s, 'accountant's, and . appraisal fees, environmental feesþ and . costs of securing evidence oftide, and aU amounts 80 expended shall be obligations of Mortgagor secured' by this Mortgage, Npthing contained herein shall prohibit Mortgagee ftom entering the Property, at a.reasonable tbne and upon reasonable notice to Mortgagor, without inOUlTing or assuming any obligations 01' liabilities whatsoever, for the sole purpose of inspecting the Property. To pay immediately and without demand all sums expended by MortgagC!8 pursuant to the prQvisions heFeor, with interest ft'om date of expenditure at the same rate as is provided for in the note Of notes secured by this Mortgage. 1n the event that such sums are not immediately paid, they shall be added to the principal balance of the indebtedness secured hereby and $hall accrue interest as herein set forth. All such sums shall be secured hereby. 8. Fann 1355 Page 4 of9 Mar J ZUUM 14;UZ fJlI'lïIUJ1 ., 9. Environmental Representations,. Warranties Iµld Covenants. . . .000805 (8) Except as disclosed in writing to Mortgagee~ or except as otherwise provided in any loan agreement between Mortgagee imd Mortgagor whiah specifically refers to the Property, to the best knowledge of Mortgågor after due inquiIy, Mortgagor hereby further represents, WIlliants and covenants as follows; . . (i) No pollutants, contaminants (including oU ·or other petroleum products), toxic or' hazardous substances, or solid or hazardous wastes, as such te1111S are defined under any federal, state or local Environmental Law, regulation or ordinance (hereinafter "ContamInants") h4ve bee~ are 'being or will be generated, manufactured, produced, stored, disposed of, discharged, released threatened to be released, or otherwise allowed to migrate or esoape on, under or from the Property in such quantities or concentrations as wòuld viola~ any federal, .state or local Environmental Law, regulation or ordinance or as .would require Mortgagor to report such condition to any govmunental authority or to undertake removal or remedial action to clean up sucb contaminants; (ll) No Cr'1nmm~nants ~ located on, in or under any property located adjacent to the Property in such quantities or concentrations .as would constitute a violation of any Environmental Law or as would require the owner of the adjacent property to report such condition to any govenunenta1 authority crt to undertake removal or remedial .action to clean up suah Contaminants; (ill) Neither the Property, nor any portion thereof; nor any adjacent property or portioo thereot: has been or is proposed to be listed under the Comprehensive Environmental Response, Compensation and Liability Act (42 V.S.C. Section 9601, et seq,), or any analogous state law. Mortgagor shall immediately nòüty Mortgagee if Mortgagor aoqu.ttes any infonnation concerning the listing or propose~ listing of the Property or any adjacent property and shall provide Mortgagee with any documents in Mortgagor's possession relative thereto; (iv) No hazardous wastes, lIS· defined under the Foderal Resource Conservation and Recovery Act (42 V.S.C. Section 6901, et seq.), or any anatogoU$ state law.c''HazardoUJ Wastes"), have been, are being or will be stored or treated in surface impoundments Ot other structures or facilities located on the Property that are partially or entirely below the groUÐd surface; (v) No litigation, investigation. administrative IIActlon") has previously been brought. is now pending, or to the best knowledge of Mortgagor threatened against or anticipated by Mortgagor, with respect tó Mortgagor'& use or management of Hazardous Materials Or Hazardous Wastes or the environmental condition of the Property, including any underlying groundwater. Upon learning thereat: Mortgagor shall immediately notifY Mortgagee of any such Action or threatened Action and provide Mortwee with copies of all documentation relative thereto; and (vi) Except as disclosed in writing to Mortgagee, no underground tanks, wells (except domestic water. wells), septic tanks, ponds, pits or any other storage tanks ("Tanks") (whether CWTentIy in use or abandoned) are or were located on or under the Property and no Tanks are or were ser$g the PropertY: descn'bed herein. With respect to any Tanks disclosed in writing to Mortgagee, Mortgagor shall comply with all federal, state and 10081 laws, regulatioDS and . ordinances and any requirements of city or county fire departments,' applicable to the· maintenance and use of such Tanks, including, without limitation, Title 40 of the Code of Federal Regulations Part 112. Form 1355 PagD ~ of9 000806 (b) Nothing hèrein &hall be deemed to prohI'bit Mortgagor from (i) using. handling or storing hazardous- materials or substrmces, as defined under any federal, state: or local law, regulation or ordinance ("Hazardous Materials") or (ii) storing or treating non-hazardous wastes, so long as such açtÍyiûes are carried out (a) in a good and husbandlike manner in the ordinary course of business, and .(b) in compliance with all applicable environmental laws, regulations, permits, . orders or other requirements. .. ( c) In the event that Mortgagor is' in breach of any of its representations, warranties or covenants as set forth above, Mortgagor, at. its sole expense, shan take all action required, including environmental cleanup of the Property, to comply· with the representations, wmanties and covenants herein or applicable legal requirements and, in any event, shaU take all action deemed nec;essBI)' by approprlate governmental authorities. Mortgagee shaIl have the right, but not the obligation, to advise appropriate gove.rmnental authorities of any environmental condition on or affeoting the Property that conmtl.1tes or may constitute a breach of Mortgagor's obligations hereunder. (d) Mortgagor and its successors and assigns shall indemnitY, defend, protect, and hold hamùess Mortgagee, its directors, officers, employees, agents, shareholders, suooessors and assi~s and their officers, employees or agents, from and against any and all claims, suits, damages, Hens, losses, liabilities, interest, judgments, response and cleanup costs, demands; actions, causes of action, iDJwies, administrative proceedings and orders, consent agreements and orders, penalties, oosts and expenses (including any fees and expenses inclllTed in enforcing this indemnity, any out- of-pocket litigation costs and the reasonable fees and expenses of counsel) of any kind whatsoever ("CIaÌIll8") paid, mcurred Dr suffered by, or asserted against Mortgagee, including but not limited to Claims arising out of· loss of life, injuiy to persons, trespass or damages to or contamination of property or natural resources, or injury to business, in connection with or arising out of the activities of Mortgagor on the Property, Mortgagor's predecessors in interest, third parties who have been invited, pennitted or trespassed on the Property, or parties Ï;n a oontractl.1al relationship with Mortgagor, or any of them; or which directly or indireotly arise out of or result Hom or in any . way connected with the Property, whether or not caused by Mortgagor or within the control of Mortgagor, including without limitation: (i) the presence, use, generation, treatment, storage, disposal, release, threa~ned release, or discharge of any Hazardous Material or Contaminant at Dr fi'óm the Property andlor the cleanup of Hazardous Materials or Contaminants within, on or under the Property; (ii) Mortgagor's breach of any of the representations. warranties and covenants contained herein; and (iii) Mortgagor's violation or alleged violation of any applicable Environmental Law, regu.lation or ordinance. . . (e) Mortgagor's representations, warranties, covenants and indemnities contained herein shall survive the occurrence of any event whatsoever, including without limitation the payoff of any . promissory note(s) secured hereby, the release or fureclosure of this Mortgage, the acceptance by Mortgagee ofa deed in. lieu offorecloSUI'C, or any transfer or abandonment of the Property, (f) The tenn ."Environmental Law" sball mean any federal, state or loca1law, s~tute, ordinance, or regulation, now in effect or hereinafter enacte~ pertaining to health, industrial hygiene, or the environmental conditions on, under or about the Property, including but not limited to enactments requiring the removal or containment of asbestos-containing materialS in private buildings. (g) MOrtgagor. shall permit, or cause.any tenant of Mortgagor to permit, Mortgagee or its agentS, or indep~t contractors to enter and inspect the Property at any reasonable time for purposes of determining, as Mortgagee deems necessary· or desirable: (i) the existence, location and nature of any Hazardous Materials or Hamdous Wastes on, WIder or about the Property, (ii) the !=xistence, location, nature, magnitude and spread of any Haw'dous Materials or Hazardous Waste that has been spilled, disposed ot; discharged or reIeased OD, under or about the PrOperty, or (iii) whether or not Mortgagor and any tenant of Mòrtgagor is in compliance with applicable· Environmental Form 1355 Page 6 0(9 Mar j lUUö lij;Ul t'Ula/ U,j I 000807 Law. If Mortgagor or its tenants fiill to comply fully with the ,terms of this subdivision (g), .' Mortgagee may obtain·affumative injunctive relief to compel such compliance. 10. Graz:ing Rights. If any portion of the Property described in this Mortgage is used by Mortg~gor as the basis for obtaining grazing permits or other grazing rights issued by any governmental agency, including without limitations the Forest Service, U.S. Depmtmcpt of Agriculture or the Bureau of Land Management. U,S. Department of Interior, Mortgagor covenants and agrees as follows: (a) Said grazing permits or other rights are in good standing and have not been modified, reduced or limited in MY other respect, except as fully disclosed in writing to Mortgagee; . (b) Mortgagor will perform all obligations imposed as a requirement of OXt'Jl'ci$e of said gruing permits or other rights and will comply with all laws, rules and regulations applicable thereto; (c) MOItgagor wi11 take such timely action as may be required to cause the renewal or reissuance of said grazing permits or other rights from time to time as they expire during the term thereof. Mortgagor agrees and acknowledges that the fiillure to renew or oause the reissuance of any said p<nmits for any reason, whether· the result of an act or omission of Mortgagor or for reasons beyond Mortgagors control, is an event of deñuùt hereunder and Mortgagee shall have the right to exercise the rights hereinafter set forth in this Mortgage; and (d) Mortgagor agrees to pay all fees, charges, rents or other payments accruing under said pennits or any renewals thereof prior to delinquency. In the event Mortgagor :fàils to pay any such payment, the amount unpaid shan become a part of the indebtedness secured by this Mortgage and shall be immediately due and payable. B. IT IS MUTUALLY AGREED THAT: 1. Any award of damages in connection with any taking or condemnation or iQiury to the Property by reason of public use, or for damages resulting from private trespass ~r injury to the Property, is absolutely and uncònditionally assigned and shall be paid to Mortgagee, under the tenus and conditions of this Mortgage pertaining to Rents. Upon receipt of such money Mortgagee may apply the same on tbe indebtedness secured hereby. Mortgagor agrees to execute such further documents 8S may be required to effect the assignments herein made as Mortgagee may require. 2. At any time, without affecting the liability of any person for the payment of the indebtedness secured hereby, and without otherwise affecting the security hereof, Mortgagee may (a) consent to or join in the . making of any map or plat of the Property; (b) grant any easement or create any restriction thereat;· (c) subordinate this Mortgage; (d) extend or mollify the term of the loan or'loans secured hereby; and (e) release without warranty, all or any part of the Property. 3. Prior tç any detàu1t by Mortgagor in the payment, observance, peñormance and dischatge of any condition, obligation, covenant, or agreement of Mortgagor contained herein, Mortgagor may, for collection and distribution purposes only, collect and receive the Rents. as they come due and payablej the Rents are to be applied by Mortgagor to the payment of the principal and interest and all other sums due or payable on any promissory note or guaranty sec\U'ed by·this Mortp,ge and to the payment of all other sums payable WIder this Mortgage and, thereafter, so long as the aforesaid has occurred, the balance shall be distributed to the accOunt ofMortpgor. Upon any such default. Mortgagee may at aDY time without notice, either in person, by agent, or by a ri:ceiver to be appointed by a co1U'Ì¡¡ and without regard to the adequacy of any security for . the indebtedness hereby secured, enter upon and take possession of the Property or any part thereot; in his own name, sue for or otherwise conect such rents, issues and profits, including those past due ønd unpaid, and apply the same, less costs and expfmSes of OPllU'ation and collection, including reasonable attorney's fees, upon any indebtedness secured hereby, Q11d in suoh order as MortSaäee may determine; also perform . such acts of repair, cultivation, irrigation or protection, as may b~ necessary or proper to conserve the value of the Property;.also lease the same or any pari thereof for such rental, term. and upon such oonditions as its F'QmJ 1355 P8&e 7 of!) 000808 judgment may dictate¡ also prepare for harvest, remove, and sell any crops that may be growing upon the Property, and apply the proceeds thereof upon the.indebtedness secured hereby. 4. The entering upon and taking possession of the Property, the collection of such rents, issues, and profits, or ~e proceeds of fire and other insurance· po1iòies, or compensation or awards for any taking of or damage to the Property, and the application or release thereof as aforesaid, shall not cure or waive any default ~r notice of default hereunder or invalidate any act done pursuant to such notice. S. Upon default· by Mortgagor in ·payment of any indebtedness secured hereby or 'in perfonnance of any agreement hereunder, all sums secured hereby shall immediately become due and payable at the option of . the Mortgagee and in accordance with app]içable state law. In the event of demult, Mortgagee may employ counsel to enforce payment of the obligations secured hereby, may foreclose and. if applicable, sell the Property by advertisement and sale, and in accordance with other applicable state law, and may exeroise such other rights and remedies granted by law and equity, which rights and remedies shall be cumulative and not exclusive. Mortgagee may resort to and realize upon the security hereunder and any other real or personal property security now or hereafter held by Mortgagee for the obligations secured hereby in such order and manner as Mortgagee may, in its sole discretion, dctennme. R.e5ort"to any or all' such security may be taken concurrently or successively and in one or several consolidated or independent judicial actions or lawfut nonjudicial proceedings, or both. If the obligation secured by' this MOrtgage is also secured by personal property, fixtures or crops, Mortgagee may enforce its security interest in the personal property, fixtures and crops and its lien under this Mortgage in any manner and in any order or sequonce permitted by applicable law. All remedies are cwnulative and none are exclusive; no election by Mortgagee to pursue one remedy or item of collateral shall be deemed to be a release or waiver of any other item of collateral or a release or modification of the liability of Mortgagor or any guarantor to pay and perform in fù11 all obligations to Mortgagee. The procedures governing the enforcement by Mortgagee of its foreclosure and provisional remedies against Mortgagor shall be governed by the laws of the state in which the Property is located. Nothing contained herein shall be construed to provide that the substantive law of the state in which the Property is located shall apply to Mortgagee's rights and Mortgagor's obligations hereunder or under the pronùssory note(s) or guaranties described herein, which are and shall ,continue to be governed by the substantive law of the state in which the promissory note(s) or guaranties were executed 6. The failure on the part of the Mortgagee to promptly enforce any right hereUnder shall not operate as a waiver of such right and the waiver by Mortgagee of any default shall not constitute a waiver of any other subsequent defaults. Subsequent acceptance of any payment by the holder hereof shall not be deemed a waiver of any default by Mortgagor, or of Mortgagee's rights hereunder as the result of any sale, agreement to sell, conveyance, or alienation, teFdless of holder's knowledge of such defaullt sale, agreement to sell, conveyance, or alienation at the time of acceptance of such payment. 7. This Mortgage applios to~ inures. to the benefit of, and binds all parties hereto, their heirs, le,gatees, devisees, administrators, executqrs, successors and assigoa. . The tenn Mortgagee shall me.àn the holder and o~er of any·note secured hereby; or, if the Dote haa þeen pledged, the pledgee thereof. In this Mortgage, whenever the context so requires, the masculine gender includes the feminine andlor neuter~ and the singular number includes the plural. All obligations ofMortgagot hereunder are joint ,and several. 8. In the event the herein-dellcribed Pr~perty, or any part thereof, or any iutørest therein, is sold. agreed to be sold, conveye~ aUenated or transferred, including any water transfor as defined in subsection (a) below, by Mortgagor, or by operation of law or otherwise, except by inheritance, without Mortgagee's prior \Witten cons~ al1 obligations secured hereby, irrespective of the matvrity dates, at the option of the holder hereof, and without demand or notice, shalI immediately b"come due and payable. Failure to cx81'CÎse such option shall not constitute a waiver of the right to exercise this option in the event of subsequent sale, agreement to se11, conveyance or alienation. . a. . A water transfer is any transfer, assignment, sale, exohange, gift, encumbrance, pledge, hypotheca.t1on, alienation;. grant of option to purchase, or. other disposition of, directly, indirectly or in trust, voluntarily or involuntarily, by operation oflaw or otherwise, or the entry into II binding FomJ'l355 Page 8 of9 ~ör J LUUö lij.UL FULD/ UJ I ,. 000809 agreement tò do any of the foregoing with respect to .all or any part of (i) the groundwater on, . under~ pum.ped fi'om or otherwise available to the Property, (ü) Mortgagor's right to remove and ..' . extract any such groundwater including any permits~ rights or licenses granted by any governmental authority or agency· and any rights granted or created by any easement, covenant, agreement or contract with any person or entity, (iii) any. rights to which the Property is entitled with respect to surface water, whether such right is appropriative, riparian. pres!:riptive or otherwise and whether or not pursuant to permit or other govenunen~ authorization, or the right to store any such water, (iv) any water, water right, water allocation, distribution right, delivery right, water storage right, water allocation, or other water~related entitlement appurtenant .or . otherwise applicable tn the J:lroperty by virtue of the Property's being situated within the boundaries of any district, agency, or other governmental entity or within the boundaries of any prlv.ate water company, mutual water company, or other non-governmental entity. or (v) any slwes (or any rights under such shares) of ~y private water company, mutual water company, or other non-governmental entity pursuant to which Mortgagor or the Property may receive any rights. 9. In the event any one or more of the provisions contained in this Mortgage or in any promissoJy note(s) hereby secured shall for any reason be held to be invalid, illegal or unenforceable in. any respect¡. such invalidity, illegality or unenforceability sball not affect any other provision of this Mortgage or said . promissory Dote(S),. but this Mórtgage and said promissory note(s) shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein or therein. 10, Borrower releases and waives all rights under and by virtue of the homestead exemption laws of Wyoming. BORROWER WAIVES ALL RIGHTS Ol? HOMESTEAD EXEMPTION IN. THE PROPERTY AND RELINQUISHES ALL RIGHTS OF CURTE~Y AND DOWER IN THE PROPERTY. Signature(s): NORTHCOM 28, LLC, a Utah Limited Liability Company By: NORTH~, ~ væ:z:.~ratiollt ~e er By: ~ BRE OAD , President Notary Acknowledgment(s): STATE OF u..i- ) COÙNTY OF (;LcfJ.. ). On this -1:1 day of f.e,~ . , 2~. before me. the undersigned Notary Pub1ic in and for said County and State~ persona11y appeared BRETI BROADHEAD [( ) personally known to me] [( ) proved to me on the basis of sati$fllCtory evidence] to be the person(s) who executed the within instrument as President of NORTHCOM. mc., ø. UtIÛl Corporation which is a MEMBER of NORTHCOM 28, LLC. a Utah Limited Liability CompaÌ1y on behalf of the Limited Liability Company therein Illlllled, and acknowledged to me that the Limite:d Liability Compll11Y executed the within instrument plU'SWlIlt to its articles of organUation and operating agreement "PLEASE SIGN BEFORE . A NOTARY. PUBLICI' WITNESS my hand and official seal ~. Fonn 1355 Page: 9 of9 " ICIItDInarcr F~ 21 2008 18:31 P8Ð4/Bt5 ODEJUmaøg,fNT1-1å,8. .' . "'~ITnA"' ,(:0081.0 lWBST PARCm.) Ä 'mACTŒLANDLOCA.'l'BDDtt·'IttAC'rS 57,ø,~7t 68.'" 70. '1'1. AND TJ." 'I'OWNIaIP24NO&~1tANcm 119WEBT. ~.P.M..UNCaLN~J~,IAm~~~p~YnB~~~~ . 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(pAær. œ TAXNO. ·1244~;.o1-3-Ò1)o04l.00) (ßÅS'r. fJùtCBL) A 'I'AACT œLÃND LOCADDIN'TlAC1'S 67, fS. ~ AND~ '1'OVt'ÑiHIP24 NOJt'I'B.JtANGB UP WBST, 6TH P.M.,· LINCOLN @l'm', WYOMINO. SAID~~O MOD~Y~~lICLLCJW8¡. : . . æK'.UNNJNG AT CORNBR.NO. 40F lAD) 1"IAC'1''r.ls MQNtJlvIBNTBD BY A ST.BBl, 191 Wl'I'H A 3-W ALt1MÏNtJM CAP ~SCRIBED IIJ.S 2!~ AND AP.PI.oPIJATI DBTAlLB, ~1WNN1NOTHBNCS NåKIH 89~9'11" 1!AST.IMtW PBBT ALCNG THBNOJ.TH t.nœ 'l'ßBBB01t TO ~NO. I CJP MJD TRAOrn (ttJSNTIOAL WITH C!01QoUm.NO. 4 OF SAIDTRACT'1S). Å mmLPIPB 'W1'.I1U:2-KItMWIB CJ\P ~~ ''C,C, WALLIB48219171 A:riDA1'PR.OPIUATS ~~i ' . . . . 'J'IœNCZ 8OUT.H ~ JU\ST,'I31ÐM 1tær .A:J..oNC,t'œBNœTH L1NB OB lAm TRACT" TO CORND.'NO; 1 TfmREaP, A S"1'.BBL BIJt Wl'IHA looK" At,'OMlNCM W INIŒIBBJ:) P1f13-: TfŒNœ sourn aD'26'2!" BAS'1',27ÐOSU'BE1' .AI.ON9T.HBBAST L1NBŒ! BAJp TRACT7B TO ~NQ.3 'l'H!JmOP¡. , . '. . .. . " . , .' . . . . , THBNŒ soum ooo28'D3" WBS'l', mUG PnT TO CQRNBIlNO.l (JI'nW'I' Ei6.A smm. P.1P.8 WlTH ABI,ASS CAP INSCRIBE? ~~tJ1,N, SŒmRBBL.LEI.l64~ ~.AP1'B.QP1UA'ŒœrAJI._ . . THSNCB S01JT.t188724" WRIT. lø.d4FŒr ALONtt tBSNOlTIiL-aO' SAmnAcref TO.comœe.~3 OF . SAID ~Cr61j 'J'.HBN'Œ ÕON1'lNOlNO 80TJTH IJP2ft4D WlIS'I'. 40.23 -,.sBT1O'l1IB MS'l'.BKLY1UOO-œ-WAYI.J1GOk''Rm . o.RBCJON IBŒT r..tNB1tAII,.'aOADA8:S"Jl:ŒNœD~.~~P!NCBUN8: . ,I . .',.. . .. . . . '1'HJ3N'tBNOlOX ~rSlI3" 'WST. ~l.o1:P:8BT, MOD œ t.'BSS. AwNo WP:EXIB'1'JNO æNCSA1iJ:nuœrr·or..WAY L1NB '1'0 THE S~U't.B:LIHS OF &W '!'aACr?2¡ . " . '.. . I . '. . ,. ; '1'IŒNcaNDII'EIaaa2O'O!lIlAST,".(i1 P.BBT .ALaN~ WJ) ~PU'nnJJŒœ SAm :amnrr-OF-WAY1JNB TOAP01NT . åli SA1D s.umaLY1tAlL'RD.AtJ æam-œ-wAYLn\IB AS UTABL1SHBD P1lQM1UJLlU)A.'D AUGNMRNTJILA1'nJ AT 100'ß4S'l'BRLYœ'IŒ~aø'ŒSMAlN~" . , . . THBNCBNOB.'I'å 18113614r WBST.:zBIS.s7'_ .A1.œrlø &AID RIœlT..œ"WÅY~'1'O'1'BBNaR.TH~OF SAJ1) ~. . " ~œ NCÌR:ra: ~~O- BA.&'1',33.ømBT ÄI..ONG SAJD.N01lT;BLINB To.'I:8EPOIJItTOFDBGINNINCL ' '(lA.1trOlTAXNO.1å441r>4)1-300D-04I.OO) " ; . (pAU ØPTAXNO. J2~g..t)"'l...,p¡.œl.oO) . . . . ., , . ALTA ~IIIIII_-(Ølj 11D6.> . . , ~ . '. .......,-.-.. - Mar 3 2008 14:02 IJn'w/0::J1 l~---~--- ...: .. ... -... -.. EXBIBp' "A" Continueµ . ùOQ8~3 TOGETBER w:rm the'foUowing water rights registered ~th the State ofWyo~ Departm~ of Water Resources: Territoria1 Water Right for 2.85 cis. £rom the Smitb.ls Fork River~ with a. Priority Date of June 1, 1885; Tcnitorlal Water Right for 0.92 cfs :from the Smith's Fork River, with a Prior,ity Date of June 1~ 18g5; Tenitori.a1 Water Right for l.S c:fs from the Smith's Fork . River~ with B. PrioIÍty Date of 1877¡ and a Territorial W81J:¡; Right for 1.64 cfs fi:'om the Sd's Fork River~ :wi,th a Prlority Date of June 1~ 1887.. . . .. . , . Form 1355. . Pøg= 4 of4