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HomeMy WebLinkAbout958049MORTGAGE 000371 WHEREAS, Entertainment Cruises, Inc. and Wayne K. Hesson and Karen J. Hesson, "Mortgagor have entered into a Promissory Note and Settlement Agreement providing for a One Hundred Forty Thousand and No /100 Dollar ($140,000.00) debt among other settlement obligations "Obligations from Entertainment Cruises, Inc. and Wayne K. Hesson, to the Sandra J. Jones Trust, an unrecorded revocable declaration of trust, "Mortgagee and WHEREAS, the Settlement Agreement requires Mortgagor to execute a Mortgage as a condition precedent for settling certain litigation. NOW, THEREFORE, FOR VALUE RECEIVED, this Mortgage "Mortgage is made and entered into by the undersigned Mortgagor in favor of the Sandra J. Jones Trust as of the date set forth below. ARTICLE I. MORTGAGE 1.1 Grant of Mortgage. The Mortgagor hereby mortgages and warrants to the Mortgagee, with power of sale, the Mortgaged Property (defined below) to secure all of the Mortgagor's Obligations (defined below) to the Mortgagee. The intent of the parties hereto is that the Mortgaged Property secures the Obligations of the Mortgagor to the Mortgagee, described below, whether now or hereafter existing, between the Mortgagor and the Mortgagee or in favor of the Mortgagee, including, without limitation, any note, any settlement related document or security agreement, or other agreement executed in connection with the Note (defined below) (together and individually, the "Loan Documents 1.2 "Mortgaged Property" means all of the following, whether now owned or existing or hereafter acquired by the Mortgagor, wherever located: all the real estate described below "Land together with all buildings, structures, standing timber, timber to be cut, fixtures, equipment, inventory and furnishings used in connection with the Land and improvements; all materials, contracts, drawings and personal property relating to any construction on the Land; and all other improvements now or hereafter constructed, affixed or located thereon "Improvements (the Land and the Improvements collectively the "Premises TOGETHER with any and all easements, rights -of -way, licenses, privileges, and appurtenances thereto, and any and all leases or other agreements for the use or occupancy of the Premises, all the rents, issues, profits or any proceeds therefrom and all security deposits and any guaranty of a tenant's obligations thereunder (collectively the "Rents all awards as a result of condemnation, eminent domain or other decrease in value of the Premises and all insurance and other proceeds of the Premises. The Land is described as follows: SEE ATTACHED EXHIBIT "A" Page 1 of 11 RECEIVED 2/11 /2011 at 2:26 PM RECEIVING 958049 BOOK: 762 PAGE: 371 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY 1.3 "Obligations" means all amounts owed by the Mortgagee to Mortgagor, including those debts evidenced by a Promissory Note dated November 8, 2010, in the initial principal amount of One Hundred Forty Thousand and No /100 Dollars ($140,000.00), with interest thereon at the rate set out in said Note and with a final payment as set forth in said Note, and any extensions, renewals, restatements and modifications thereof and all principal, interest, fees and expenses relating thereto (the "Note and also means all the Mortgagor's debts, liabilities, obligations, covenants, warranties, and duties to the Mortgagee (plus its affiliates including any credit card debt, but specifically excluding any type of consumer credit), whether now or hereafter existing or incurred, whether liquidated or unliquidated, whether absolute or contingent, whether arising out of the Loan Documents or otherwise, and regardless of whether such Obligations arise out of existing or future credit granted by the Mortgagee to any Mortgagor, to any Mortgagor and others, to others guaranteed, endorsed or otherwise secured by any Mortgagor or to any debtor -in- possession/successor -in- interest of any Mortgagor, and principal, interest, fees, expenses and charges relating to any of the foregoing, including, without limitation, costs and expenses of collection and enforcement of this Mortgage, attorneys' fees of both inside and outside counsel and environmental assessment or remediation costs. The interest rate and maturity of such Obligations is as described in the documents creating the indebtedness secured hereby. ARTICLE II. WARRANTIES AND COVENANTS In addition to all other warranties and covenants of the Mortgagor under the Loan Documents which are expressly incorporated herein as part of this Mortgage, including the covenants to pay and perform all Obligations, and while any part of the credit granted the Mortgagor under the Loan Documents is available or any Obligations of the Mortgagor to the Mortgagee are unpaid or outstanding, the Mortgagor continuously warrants and agrees as follows: 2.1 Warranty of Title/Possession. The Mortgagor warrants that it has sole and exclusive title to and possession of the Premises, excepting only the following "Permitted Encumbrances restrictions and easements of record, zoning ordinances (the terms of which are and will be complied with, and in the case of easements are and will be kept free of encroachments), and taxes and assessments not yet due and payable. The lien of this Mortgage, subject only to Permitted Encumbrances, is and will continue to be a valid first and only lien upon all of the Mortgaged Property. 2.2 Maintenance; Waste; Alteration. The Mortgagor will maintain the Premises in good condition and repair and will restore or replace damaged or destroyed improvements with items of at least equal utility and value. The Mortgagor will not commit or permit waste to be committed on the Premises. In addition, Mortgagor covenants: (a) Not to remove or demolish any of the Property without Mortgagee's prior written consent; Page 2 of 11 000372 (b) To complete or restore promptly and in good and workmanlike manner any of the Property which may be damaged or destroyed, or which may be affected by any condemnation or eminent domain proceeding; (c) Not to suffer violation of any, and to comply with all, (i) laws, ordinances, regulations and standards; (ii) covenants, conditions, restrictions and equitable servitudes, whether public or private, of every kind and character; and (iii) requirements of insurance companies for insurability, which laws, covenants or requirements affect any of the Property or pertain to acts committed or conditions existing thereon; (d) Not to initiate or acquiesce in any change in any zoning or other land use or legal classification which affects any of the Property without Mortgagee's prior written consent; (e) Not to alter the use of all or any part of the Property without the prior written consent of Mortgagee; (f) Not to commit or permit waste of the Property or to conduct or permit any nuisance thereon or abandon the same; (g) To do all other acts which from the character or use of the Property may be reasonably necessary to maintain and preserve its value; (h) To make no further assignment of Rents or Leases without Mortgagee's prior written consent; and (i) To pay when due all installments owing upon conditional sales or like agreements with respect to any Personal Property. 2.3 Transfer and Liens. The Mortgagor will not, without the prior written consent of the Mortgagee, which may be withheld in the Mortgagee's sole and absolute discretion, either voluntarily or involuntarily (a) sell, assign, lease or transfer or permit to be sold, assigned, leased or transferred, any part of the Premises, or any interest therein; or (b) pledge or otherwise encumber, create or permit to exist any mortgage, pledge, lien or claim for lien or encumbrance upon any part of the Premises or interest therein, except for the Permitted Encumbrances. 2.4 Escrow. After written request from the Mortgagee, the Mortgagor will pay to the Mortgagee sufficient funds at such time as the Mortgagee designates, to pay (a) the estimated annual real estate taxes and assessment the Premises; and (b) all property or hazard insurance premiums when due. Interest will not be paid by the Mortgagee on any escrowed funds. Escrowed funds may be commingled with other funds of the Mortgagee. All escrowed funds are hereby pledged as additional security for the Obligations. 2.5 Taxes, Assessments and Charges. To the extent not paid to the Mortgagee under Page 3 of 11 OO(3i3 00x374 2.4 above, the Mortgagor will pay before they become delinquent all taxes, assessments and other charges now or hereafter levied or assessed against the Premises, against the Mortgagee based upon this Mortgage or the Obligations secured by this Mortgage, or upon the Mortgagee's interest in the Premises, and deliver to the Mortgagee receipts showing timely payment. 2.6 Insurance. The Mortgagor will continually insure the Premises against such perils or hazards as the Mortgagee may require, in amounts, with acceptable co- insurance provisions, not less than the unpaid balance of the Obligations or the full replacement value of the Improvements, whichever is less. The policies will contain an agreement by each insurer that the policy will not be terminated or modified without at least thirty (30) days' prior written notice to the Mortgagee and will contain a mortgage clause acceptable to the Mortgagee; and the Mortgagor will take such other action as the Mortgagee may reasonably request to ensure that the Mortgagee will receive (subject to no other interests) the insurance proceeds from the Improvements. The Mortgagor hereby assigns all insurance proceeds to and irrevocably directs, while any Obligations remain unpaid, any insurer to pay to the Mortgagee the proceeds of all such insurance and any premium refund; and authorizes the Mortgagee to endorse the Mortgagor's name to effect the same, to make, adjust or settle, in the Mortgagor's name, any claim on any insurance policy relating to the Premises. The proceeds and refunds will be applied in such manner as the Mortgagee, in its sole and absolute discretion, determines to rebuilding of the Premises or to payment of the Obligations, whether or not then due and payable. 2.7 Condemnation. Any compensation received for the taking of the Premises, or any part thereof, by a condemnation proceeding (including payments in compromise of condemnation proceedings), and all compensation received as damages for injury to the Premises, or any part thereof shall be applied in such manner as the Mortgagee, in its sole and absolute discretion, determines to rebuilding of the Premises or to payment of the Obligations, whether or not then due and payable. Mortgagor hereby assigns to Mortgagee any claims for compensation for a taking by eminent domain of all or a part of the Mortgaged Property. 2.8 Environmental Matters. Except as specifically disclosed by Mortgagor to Mortgagee in writing prior to the execution of this Mortgage, Mortgagor represents and warrants as follows: There exists no uncorrected violation by the Mortgagor of any federal, state or local laws (including statutes, regulations, ordinances or other governmental restrictions and requirements) relating to the discharge of air pollutants, water pollutants or process waste water or otherwise relating to the environment or Hazardous Substances as hereinafter defined, whether such laws currently exist or are enacted in the future (collectively "Environmental Laws The term "Hazardous Substances" will mean any hazardous or toxic wastes, chemicals or other substances, the generation, possession or existence of which is prohibited or governed by any Environmental Laws. The Mortgagor is not subject to any judgment, decree, order or citation, or a party to (or threatened with) any litigation or administrative proceeding, which asserts that the Mortgagor (a) has violated any Environmental Laws; (b) is required to clean up, remove or take remedial or other action with respect to any Hazardous Substances (collectively "Remedial Action or (c) is required to pay all or a portion of the cost of any Remedial Action, as a potentially responsible party. Except as disclosed on the Borrower's environmental questionnaire provided to the Mortgagee, there are not now, Page 4 of 11 000375 nor to the Mortgagor's knowledge after reasonable investigation have there ever been, any Hazardous Substances (or tanks or other facilities for the storage of Hazardous Substances) stored, deposited, recycled or disposed of on, under or at any real estate owned or occupied by the Mortgagor during the periods that the Mortgagor owned or occupied such real estate, which if present on the real estate or in soils or ground water, could require Remedial Action. To the Mortgagor's knowledge, there are no proposed or pending changes in Environmental Laws which would adversely affect the Mortgagor or its business, and there are no conditions existing currently or likely to exist while the Loan Documents are in effect which would subject the Mortgagor to Remedial Action or other liability. The Mortgagor currently complies with and will continue to timely comply with all applicable Environmental Laws; and will provide the Mortgagee, immediately upon receipt, copies of any correspondence, notice, complaint, order or other document from any source asserting or alleging any circumstance or condition which requires or may require a financial contribution by the Mortgagor or Remedial Action or other response by or on the part of the Mortgagor under Environmental Laws, or which seeks damages or civil, criminal or punitive penalties from the Mortgagor for an alleged violation of Environmental Laws. In the event of any such circumstance or condition, the Mortgagor agrees, at its expense and at the request of the Mortgagee, to permit an environmental audit solely for the benefit of the Mortgagee, to be conducted by the Mortgagee or an independent agent selected by the Mortgagee and which may not be relied on by the Mortgagor for any purpose. This provision shall not relieve the Mortgagor from conducting its own environmental audits or taking any other steps necessary to comply with Environmental Laws. 2.9 Assignments. The Mortgagor will not assign, in whole or in part, without the Mortgagee's prior written consent, the rents, issues or profits arising from the Premises. 2.10 Right of Inspection. The Mortgagee may at all reasonable times enter and inspect the Premises. 2.11 Waivers by Mortgagor. To the greatest extent that such rights may then be lawfully waived, the Mortgagor hereby agrees for itself and any persons claiming under the Mortgage that it will waive and will not, at any time, insist upon or plead or in any manner whatsoever claim or take any benefit or advantage of (a) any exemption, stay, extension or moratorium law now or at any time hereafter in force; (b) any law now or hereafter in force providing for the valuation or appraisement of the Premises or any part thereof prior to any sale or sales thereof to be made pursuant to any provision herein contained or pursuant to the decree, judgment or order of any court of competent jurisdiction; or (c) any right to require marshalling of assets by the Mortgagee. 2.12 Assignment of Rents and Leases. The Mortgagor assigns and transfers to the Mortgagee, as additional security for the Obligations, all right, title and interest of the Mortgagor in and to all leases which now exist or hereafter may be executed by or on behalf of the Mortgagor covering the Premises and any extensions or renewals thereof, together with all Rents, it being intended that this is an absolute and present assignment of the Rents. Notwithstanding that this assignment constitutes a present assignment of leases and rents, the Mortgagor may collect the Rents and manage the Premises, but only if and so long as a default has not occurred. If a default occurs, the right of Mortgagor to collect the Rents and to manage Page 5 of 11 the Premises shall thereupon automatically terminate and such right, together with other rights, powers and authorizations contained herein, shall belong exclusively to the Mortgagee. This assignment confers upon the Mortgagee a power coupled with an interest and cannot be revoked by the Mortgagor. Upon the occurrence of a default, the Mortgagee, at its option without notice and without seeking or obtaining the appointment of a receiver or taking actual possession of the Premises may (a) give notice to any tenant(s) that the tenant(s) should begin making payments under their lease agreement(s) directly to the Mortgagee or its designee; (b) commence a foreclosure action and file a motion for appointment of a receiver; or (c) give notice to the Mortgagor that the Mortgagor should collect all Rents arising from the Premises and remit them to the Mortgagee upon collection and that the Mortgagor should enforce the terms of the lease(s) to ensure prompt payment by tenant(s) under the lease(s). All Rents received by the Mortgagor shall be held in trust by the Mortgagor for the Mortgagee. All such payments received by the Mortgagee may be applied in any manner as the Mortgagee determines to payments required under this Mortgage, the Loan Documents and the Obligations. The Mortgagor agrees to hold each tenant harmless from actions relating to tenant's payment of Rents to the Mortgagee. ARTICLE HI. RIGHTS AND DUTIES OF THE MORTGAGEE In addition to all other rights (including setoff against any accounts maintained by Borrower with Mortgagee, including any debt service reserve account) and duties of the Mortgagee under the Loan Documents which are expressly incorporated herein as a part of this Mortgage, the following provisions will also apply: 3.1 Mortgagee Authorized to Perform for Mortgagor. If the Mortgagor fails to perform any of the Mortgagor's duties or covenants set forth in this Mortgage, the Mortgagee may perform the duties or cause them to be performed, including, without limitation, signing the Mortgagor's name or paying any amount so required, and the cost, with interest at the default rate set forth in the Loan Documents, will immediately be due from the Mortgagor to the Mortgagee from the date of expenditure by the Mortgagee to date of payment by the Mortgagor, and will be one of the Obligations secured by this Mortgage. All acts by the Mortgagee are hereby ratified and approved, and the Mortgagee will not be liable for any acts of commission or omission, nor for any errors of judgment or mistakes of fact or law. ARTICLE IV. DEFAULTS AND REMEDIES The Mortgagee may enforce its rights and remedies under this Mortgage upon default. A default will occur if the Mortgagor fails to comply with the terms of any Loan Documents (including this Mortgage or any guaranty by the Mortgagor) or a demand for payment is made under a demand loan, or the Mortgagor defaults on any other mortgage affecting the Land, Upon the occurrence of a default, the Mortgagee may declare the Obligations to be immediately due and payable. 9.1 Cumulative Remedies; Waiver. In addition to the remedies for default set forth in the Loan Documents, including acceleration, the Mortgagee upon default will have all other rights and remedies for default available by law or equity including foreclosure sale of the Mortgaged Property pursuant to this Mortgage and applicable law, the extinguishment of the Page 6 of 11 000376 right, title and interest of the Mortgagor in the Mortgaged Property and the rights of all claiming by, through or under the Mortgagor, and the application of the proceeds of such sale to satisfy the Obligations. The rights and remedies specified herein are cumulative and are not exclusive of any rights or remedies which the Mortgagee would otherwise have. With respect to such rights and remedies: (a) Receiver; Mortgagee in Possession. Upon the commencement or during the pendency of any action to foreclose this Mortgage, the Mortgagee will be entitled, as a matter of right, at its sole option, without notice or demand and without giving bond or other security, and without regard to the solvency or insolvency of the Mortgagor or to the value of the Premises, to have a receiver appointed for all or any part of the Premises, which receiver will be authorized to collect the rents, issues and profits of the Premises during the pendency of such foreclosure action, and until discharged, and to hold and apply such rents, issues and profits, when so collected, as the court will from time to time direct. Without limitation of the foregoing, the Mortgagor hereby authorizes the Mortgagee to be placed in possession of the Premises during foreclosure, whether the Premises are residential or not, and, for so long as the Mortgagee shall remain in possession of the Premises, the Mortgagee shall have the power and authority to operate, manage and control the Premises, including, without limitation, the right to receive the rents, issues and profits of the Premises, perform all maintenance and make all repairs and replacements, enter into leases, and amend, cancel, renew, modify and terminate the same. (b) Foreclosure. The Mortgagee may foreclose this Mortgage by advertisement and sale of the Premises, or any part thereof, at public venue according to statutes of the state of Wyoming 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 proceeds arising from such sale, first to the payment of all costs and expenses incurred by the Mortgagee in connection therewith, including, without limiting the generality of the foregoing, court costs, legal fees, and expenses, fees of accountants, engineers, consultants, agents or managers and expenses of any entry or taking of possession, holding, valuing, preparing for sale, advertising, selling and conveying; second, to the payment of the amounts secured hereby; and third, any surplus thereafter remaining to Mortgagor or Mortgagor's successors or assigns, as their interests may be established to Mortgagee's reasonable satisfaction. Any sale made hereunder may be as an entirety or in parcels, and any sale may be adjourned by announcement at a time and place appointed for such sale without further notice except as may be required by law. There shall be included in any or all such foreclosure proceedings, a reasonable attorney's fee as part of the Mortgagor's indebtedness. In case the Mortgagee shall fail to promptly foreclose upon the occurrence of any event of default, Mortgagee shall not thereby be prejudiced in its right of foreclosure at any time thereafter during which such default shall continue and Mortgagee shall not be prejudiced in its foreclosure rights in the case of further default or defaults. (c) Waiver by the Mortgagee. The Mortgagee may permit the Mortgagor to attempt to remedy any default without waiving its rights and remedies hereunder, and Page 7 of 11 000377 the Mortgagee may waive any default without waiving any other subsequent or prior default by the Mortgagor. Furthermore, delay on the part of the Mortgagee in exercising any right, power or privilege hereunder or at law will not operate as a waiver thereof, nor will any single or partial exercise of such right, power or privilege preclude other exercise thereof or the exercise of any other right, power or privilege. No waiver or suspension will be deemed to have occurred unless the Mortgagee has expressly agreed in writing specifying such waiver or suspension. (d) Attorneys' Fees and Other Costs. Attorneys' fees and other costs incurred in connection with foreclosure of this Mortgage may be recovered by the Mortgagee and included in any judgment of foreclosure. 4.2 Other Remedies. The Mortgagee may institute an action, suit or proceeding in equity for the specific performance of any of the provisions contained herein or in any of the Loan Documents, and may take any other action, or pursue any other right or remedy, as the Mortgagee may have under applicable law, and the Mortgagor does hereby grant the same to the Mortgagee. ARTICLE V. MISCELLANEOUS In addition to all other miscellaneous provisions under the Loan Documents which are expressly incorporated as a part of this Mortgage, the following provisions will also apply: 5.1 Term of Mortgage. The lien of this Mortgage shall continue in full force and effect until this Mortgage is released. 5.2 Time of the Essence. Time is of the essence with respect to payment of the Obligations, the performance of all covenants of the Mortgagor and the payment of taxes, assessments, and similar charges and insurance premiums. 5.3 Subrogation. The Mortgagee will be subrogated to the lien on any mortgage or other lien discharged, in whole or in part, by the proceeds of the Note or other advances by the Mortgagee, in which event any sums otherwise advanced by the Mortgagee shall be immediately due and payable, with interest at the default rate set forth in the Loan Documents from the date of advance by the Mortgagee to the date of payment by the Mortgagor, and will be one of the Obligations secured by this Mortgage. 5.4 Choice of Law. Foreclosure of this Mortgage will be governed by the laws of the state of Wyoming For all other purposes, the choice of law specified in the Loan Documents will govern. 5.5 Severability. Invalidity or unenforceability of any term, covenant or condition of this Mortgage shall not affect the validity or enforceability of any other term, covenant or condition of the Mortgage. 5.6 Entire Agreement. This Mortgage is intended by the Mortgagor and the Mortgagee as a final expression of this Mortgage and as a complete and exclusive statement of its Page 8 of 11 000378 terms, there being no conditions to the full effectiveness of this Mortgage. No parol evidence of any nature shall be used to supplement or modify any terms. 5.7 Joint Liability; Successors and Assigns. If there is more than one Mortgagor, the liability of the Mortgagors will be joint and several, and the reference to "Mortgagor" shall be deemed to refer to each Mortgagor and to all Mortgagors. The rights, options, powers and remedies granted in this Mortgage and the other Loan Documents shall extend to the Mortgagee and to its successors and assigns, shall be binding upon the Mortgagor and its successors and assigns, and shall be applicable hereto and to all renewals, amendments and/or extensions hereof. 5.8 Indemnification. Except for harm arising from the Mortgagee's willful misconduct, the Mortgagor hereby indemnifies and agrees to defend and hold the Mortgagee harmless from any and all losses, costs, damages, claims and expenses (including, without limitation, attorneys' fees and expenses) of any kind suffered by or asserted against the Mortgagee relating to claims by third parties arising out of the financing provided under the Loan Documents or related to the Mortgaged Property (including, without limitation, the Mortgagor's failure to perform its obligations relating to Environmental Matters described in Section 2.8 above or the exercise by the Mortgagee of any of its powers, rights, and remedies under this Mortgage). This indemnification and hold harmless provision will survive the termination of the Loan Documents and the satisfaction of this Mortgage and Obligations due the Mortgagee. 5.9 Notices. Notice of any record shall be deemed delivered when the record has been (a) deposited in the United States Mail, postage pre -paid, (b) received by overnight delivery service, (c) received by telex, (d) received by telecopy, (e) received through the internet, or (f) when personally delivered. 5.10 Release of Homestead Each of the undersigned hereby releases and waives all rights under and by virtue of the homestead exemption laws of the State of Wyoming. 5.11 Copy. The Mortgagor hereby acknowledges the receipt of a copy of this Mortgage, together with a copy of each promissory Note secured hereby, and all other documents executed by the Mortgagor in connection herewith. 5.12 Further Acts, etc. The Mortgagor will, at the cost of the Mortgagor, and without expense to the Mortgagee, do, execute, acknowledge and deliver all and every such further acts, deeds, conveyances, mortgages, assignments, notices of assignments, transfers and assurances as the Mortgagee shall, from time to time, demand for the better assuring, conveying, assigning, transferring and confirming unto the Mortgagee the property rights hereby mortgaged or intended now or hereafter so to be, or which the Mortgagor may be, or may hereafter become, bound to convey or assign to the Mortgagee, or for carrying out the intention or facilitating the performance of the terms of this Mortgage or for filing, registering or recording this Mortgage and, on demand, will execute and deliver and hereby authorizes the Mortgagee to execute in the name of the Mortgagor to the extent the Mortgagee may lawfully do so, one or more financing statements, chattel mortgages or comparable security instruments, to evidence more effectively the lien hereof upon the Mortgaged Property. Page 9 of 11 000379 IN WITNESS HEREOF, the undersigned has executed this MORTGAGE as of November 8, 2010. WAYNE K. HESSON STATE OF FLORIDA COUNTY OF COLLIER The foregoing instrument was acknowledged before me on this 8th day of November, 2010, by Wayne K. Hesson. SEAL My commission expires: 0 q— 0 2 1 IN WITNESS HEREOF, the undersigned has executed this MORTGAGE as of November 8, 2010. KAREN J. HESSON WIPA STATE OF FLORIDA COUNTY OF COLLIER N Page 10 of 11 y Public f SARAH JIM ZIANER MY OOMM SSION 4 E 2 O EXPIRES: September H. Natary Discount Assoc. Cm NOTARY 00K 380 The foregoing instrument was acknowledged before me on this 8th day of November, 2010, by Karen J. Hesson. SEAL My commission expires: DCI— (2 —t otary Public Page 11 of 11 9 4114)14v owl SARAH JIiVIZI ERMAN MY COMMISSION 11 EE25507 4 EXPIRES: Septemba 12, 2014 1 8 00.3 NOTARY Fl. Notary )7iscouni Assoc, co. 000381 EXHIBIT "A' A portion of the property, as referred to in the Deed recorded, with Document No. 868366, in Book 452PR, on Page 94, and a portion of the property, as referred to in the Deed recorded with Document No. 859985, in Book 433 PR, on Page 29 with the Office of the Clerk of Lincoln County, Wyoming, within the South Half, of Section 4, Township 31 North, Range 119 West, of the 6 P.M., Lincoln County, Wyoming, the metes and bounds being more particularly described as follows: Beginning at the Paul N. Scherbel RLS 164, 1978 location for the Southeast Corner of the Southeast Quarter Southwest Quarter of said Section 4; thence North 1 °33'04" East, along the East line of said Southeast Quarter Southwest Quarter, 1,015.46 feet; thence South 90 °00'00" East 632.12 feet to the Point of the Centerline of Crow Creek County Road No. 12 -141 Right -of -Way as referred to in the Right -of- Way Easement as recorded in Book 171PR, on Page 750, with said office, being a point in a 1,210.25 feet Radius Curve to the Right from which the radius point bears South 84 °40'47" West; thence Southerly along said Center Line, the following: Southeasterly, along said Curve to the Right, through a Central Angle of 3 °40'56" an arc length of 77.78 feet, said curve having a chord of South 3 °37'56" East 77.77 feet, South 1 °38'16" East 61.80 feet to the Beginning of a 640.00 feet Radius Curve to the Left, Southeasterly along said Curve to the Left, through a Central Angle of 17 °37'55 an arc length of 196.95 feet, said curve having a chord of South 10°27'13" East 196.17 feet, South 19°16'11" East 301.01 feet to the Beginning of a 1,112.30 feet Radius Curve to the Right, Southeasterly, along said Curve to the Right, through a Central Angle of 6 °44'48 an arc length of 130.98 feet, said curve having a chord of South 15 °53'47" East 130.90 feet, South 12 °31'22" East 232.88 feet, and South 13°52'12" East 45.15 feet to a Point in the North line of the Northeast Quarter of Section 9, of said Township 31 North Range 119 West; then South 89 °54'01" West, along said North line, 898.41 feet, to the Point of Beginning. 000382