HomeMy WebLinkAbout887420Recording Requested by:
WHEN RECORDED MAIL TO:
WESTERN AgCREDIT, PCA
BOX 95850
SOUTH JORDAN UT 84095-0850
87b, 20
RECEIVED
LINOOL;',! CO JF,TY CLERK
Customer No. 00(16482414
REAL ESTATE MORTGAGE,
FIXTURE FILING AND SECURITY AGREEMENT
THIS MORTGAGE is made this 28th day of January, 2003 between
MICHEAL J. MCMILLAN
ANN T. MCMILLAN
STEVE R. MCMILLAN
TRACY C. MCMILLAN
JED R. MCMILLAN
NANCY B. MCMILLAN
BOOK ~-~1~. PR PAGE
hereinafter called "Mortgagor", and WESTERN AgCREDIT, 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.
WITNESSETH: That Mortgagor IRREVOCABLY GRANTS, BARGAINS, SELLS, CONVEYS AND ASSIGNS unto Mortgagee together with right
of entry and possession the following described real property situated in the Count)' of L±ncoln, State
FOR DESCRIPTION OF REAL PROPERTY SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF
TOGETHER WITH: all buildings, structures, equipment, fixtures (including trees, vines and shrubs) aud improvements of every kind and description
now or hereafter constructed or placed thereon; all standing timber and timber to be cut located thereon; all existing and future water rights, however
evidenced, including irrigation 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, all of which are hereby declared to be fixtures;
all existing and future grazing rights, leases, permits and licenses; all oil, 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 beneficially, whether constituting real or personal property (or sut~ject to any other characterizations), whether created or
authorized under existing or future laws or regulations, and however arising in, inchlding without limitation, tile water, water rights and other assets
and items described below in subparagraphs (a) through (h) which shall collectively be called "Water Assets" (hereafter collectiveh, referred m as the
"Property"). References to "water" and "water rights" are used herein in the broadest and most comprehensive sense ol' tile term(s). Thc term "water"
includes water rights and right to water or xvhatever rights to money, proceeds, property or other benefits are exchangecl or received [bt or on acctmm
of any W~.ter Assets or any conservation or other nonuse of water, including whatever rights are achieved by depositing one's shares o1' any Warm
Assets in any water bank or with any water authority, or apy other water reallocation rights:
a. All water (including an), water inventory in storage), water rights and entitlements, other rights to water and other rights to receive water or
water rights of every kind or nature whatsoever including (i) the grotmdwater on, under, punlped 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 extract any such groundxvater including any
permits, rights or licenses granted by any govermnental authority or agency or any rights granted or created by any use, easements, 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, prescriptive, decreed or otherwise and whether or not pursuant to permit or other govemn~ental authorization, or tile right to
store any such xvater, (iv) any water, water right, water allocation, distribution right, deliver), right, water storage right, or other ~vater-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 bouodaries 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 all rights from an),
entity or other person to acquire, receive, exchange, sell, lease, or otherwise transfer an), water or other Water Assets, to store, deposit or otherwise
create water credits in a xvater bank or similar or other arrangement for allocating water, to transport or deliver water, or otherwise to deal with any
Water Asset;
c. All licenses, permits, approvals, contracts decrees, rights and interest to acquire or appropriate an), water or other Water Assets, water bank or
other credits evidencing any right to water or other Water Assets, to store, carry, transpoFt or deliver water or other Water Assets, to sell, lease,
*ASN 1324 (10-011 Real Estate Mortgage, Fixture Filing and Security Agreement ~ (l'agc t rd' 71
exchange, or otherwise transfer any water or other Water Asset, or to change tire point ['or diversion of water, tile location of any water or Water
Asset, the place of use of any 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 other 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 tile Property or other property of Mortgagor, together
with all storage tanks, and other equipment used or usable in connection witb such storage and any water bank deposit credits, deposit accounts or
other rights arising on account of the storage or nonuse of any water or any water or any other Water Asset;
f. All rights to transport, carry, allocate or otherwise deliver water or other Water Assets by any means wherever located;
g. All guaranties, warranties, marketing, management or service contracts, indemnity agreements, and water right agreements, other water related
contracts and water reallocation rights, all insurance policies regarding or relating to any Water Asset;
h. All rents, issues, profits, proceeds and other accounts, instruments, chattel paper, contract rights, general intangibles, deposit accounts, and other
rights to payment arising from or on account of any use, nonuse, sale, lease, transfer or other disposition of any Water Asset.
Absolute Assignment of All Revenue From Water Assets- Mortgagor hereby absolutely and unconditionally assigns to Mortgagee all proceeds,
rents, issues and profits from any use (apart from watering plants on the Property or other ordinary use on the Property), nonuse, sale, lease, transfer
or disposition of any kind of any water or any other Water Asset subject to a lien in favor of Mortgagee. That assignment shall be perfected
automatically without appointment of a receiver or Mortgagee becoming a mortgagee in possession and Mortgagee shall have the right, before or
after the occurrence of any default or event of default, to noti~ any account debtor to pay all amounts owing with respect to those proceeds, rems.
issues and profits directly to Mortgagee. Except as otherwise agreed in writing by Mortgagee, Mortgagee may apply any such collection (and any
rents, issnes, profits and proceeds) to any indebtedness owed to Mortgagee itl any order, priority or manner desired by Mortgagee.
MORTGAGOR ABSOLUTELY AND UNCONDITIONALLY ASSIGNS, transfers, conveys and sets over to Mortgagee all tile rents, royalties,
issues, profits, revenue, income and other benefits of the property arising from the use or enjoyment of all or any portion thereof or from any lease,
mineral lease, or agreement pertaining thereto (collectively the "Rents"); SUBJECT, HOWEVER, to the right, power and authority given to and
conferred upon Mortgagor by Paragrapb B.3 hereof.
PERSONAL PROPERTY SECURITY AGREEMENT -All of the Property will be considered to the fullest extent of the law to be
real property for purposes of this Mortgage. To the extent that any of the Property, (including without limitation any Water Assets or
fixtures), is deemed to constitute, is adjudicated to be, or 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 personal property described
herein; and fitrther, grants to Mortgagee all of the rights and remedies ora secured party under the Uniform Commercial Code and
other applicable state law, which rights are cumulative.
FIXTURE FILING - This Mortgage shall also be deemed to be a fixture filing under the Uniform Conunercial Code and is to be
recorded in the county real estate records.
FOR THE PURPOSE OF SECURING: (13 payment of the indebtedness or obligations evidenced by the following promissory note(s) and/or
guaranties executed by Mortgagor and/or others to the Mortgagee at the times, in the manner and with interest as therein set forth (notes may contain
variable or adjustable rate provisions):
Dated Maturity Face Ainount Dated Maturity Face Amount
I/28/2003 I / 1/2004
$141,000.00
(2) Tile payment of such additional loans or advances, including advances under a revolving line of credit, with interest thereon, as hcrcaflc~ max bc
made to Mortgagor, or Mortgagor's successors or assigus, and/or to parties whose obligation Mortgagor is guaranteeing, evidenced by a pronfissory
note or otherwise and any obligations evidenced by any guaranties executed by Mortgagor in favor of Mortgagee; PROVIDED I IOWEVER, THAT.
such additional loans advances guaranty obligations shall be secured by this Mm'tgage only if the promissory note, guaranty, or other document
evidencing 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 extensions of all indebtedness secured by this Mortgage; (4) the performauce of every obligation and agreement of Mortgagor
whether coutained or incorporated by reference ill this Mortgage, or contained in any loan document or guaranty executed by Mortgagor in fiqvor of
Mortgagee, with respect to any loan, advance, or guaranty secured by this Mortgage; and (5) the paymen! of all sums expended or advanced by
Mortgagee under or pursuant to the terms of this Mortgage, together with interest thereon as hereto provided. The continuing validity and priority of
this Mortgage as security for future loaos, advances, or guaranties shall not be impaired by the l-her that at certain times bereafter there may exist no
outstanding indebtedness t¥om Mortgagor to Mortgagee or no commitment to make loans or advances.
A. TO PROTECT THE SECURITY OF THIS MORTGAGE, MORTGAGOR AGREES:
1. To use loan proceeds solely lbr the purposes set fbrtb in the loan application(s) or agreements; to comply with the Farm Credit Act of
1971, as amended, and/or the regulations of the Farm Credit Administration, now existing or as hereafter amended.
*ASN 1324 (10 .state Mortgage, Fixture Filing and Security Agreem ~ (Page 2 of 7)
700
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 all trees, vines and crops oil said land properly cultivated, 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 the
ordinary course of business; to complete or restore promptly and itl good and workmanlike manner any building which may be
constructed, damaged or destroyed thereon; to comply with all laws, covenants and restrictions affecting tile Property; not to connnit or
permit waste tbereot'; not to commit, suffer or permit any act upon the Property in violation of law; to do ali other acts which from tile
character or use of tbe Property ina), be reasonably necessary, the specific enunmrations herein not excluding the general; to observe and
perform all obligations of Mortgagor under any lease of the Property.
To provide, maintain and deliver to Mortgagee fire and all other types of insurance of the type and in amounts as Mortgagee may require,
xvith loss payable clauses solely in favor of Mortgagee. Ill the event of loss, the insurance proceeds, or any part thereot; may be applied
by Mortgagee, at its option, to the reduction of the indebtedness bereby secured or to the restoration or repair of the property damaged.
In the event that the Mortgagor sball fail to provide satisfactory hazard insurance, Mortgagee may procare, on Mortgagor's behalf;
insurance in favor of Mortgagee alone. If insurance cannot be secured by Mortgagor to provide the required coverage, such inability
shall constitute an event of dethult hereunder.
To appear in and litigate any actiou or proceeding purporting to affect the security bereot; the title to tile Property, or tile riglnts or powers
of Mortgagee; Mortgagee may appear in and litigate an5, such action or proceedings, including any bankruptcy, partition nr
condelnnation proceeding, affecting tile Property, or Mortgagec's interest thereto, in which event Mortgagor agrees to pay all costs and
expenses thereof; including attorney's fees and costs of securing evidence of title.
To pay on or before the due date all taxes and assessments affecting tile Property, including all assessments upon water company stock
and all rents, assessmeuts and charges for water, appurtenant to or used in connection with the Property; to pay, when due, all
encumbrances, charges, and liens, on the Property or any part thereot; whicb at any time appear to be prior or superior hereto.
In case of any suit to foreclose this Mortgage or to collect any charge arising out of tim debt hereby secored, or of any suit which the
Mortgagee may deem necessary to prosecute or defend to eftEct or protect tile lien herein, including any proceeding in bankruptcy, or if'
Mortgagee retains 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 sum as attorney's lees and all costs and legal expenses in counection
with said suit, and further agrees 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 in any decree of foreclosure. Tile tees and costs described herein and
elsewhere in tbis Mortgage shall be in addition to those set lbrth in the loan agreement or any other written agreement betweea
Mortgagor and Mortgagee.
Should Mortgagor tail to make any payment or to do any act as provided for in tiffs Mortgage, then Mortgagee, but without obligation to
do so and without notice to or demand upon Mortgagor and without releasing Mortgagor from any obligation bereot} may: make or do
the same in such manner and to such extent as either may deem necessary to protect the Property, Mortgagee being authorized to enter
upon the Property for such purposes; cmnmence, appear in and litigate any action or proceeding purporting to affect the security hereof
or the rights or powers of Mortgagee, including any bankruptcy proceeding affecting the Property; pay, purcbase, contest, or compromise
any encumbrance, charge or lien which in the .judgment of eitber appears to be prior or superior hereto; and in exercising any si.ich
powers, incur any liability, expend whatever amounts in its absolute discretion it may deem necessary therefore, including attorney's,
accountant's, and appraisal tees, environmental fees, and costs of securing evidence of title, and all amounts so expended sball be
obligations of Mortgagor secured by this Mortgage. Nothing contained herein shall prohibit Mortgagee fi'om entering tile Properly. a! a
reasonable time and upon reasonable notice to Mortgagor, without incurring or assuming an',, obligations or liabilities whatsoever. IN' thc
sole purpose of inspecting the Property.
To pay immediately and without demand all sums expended by Mortgagee pursuant to tile provisions hereol: with interest fi-mn date of
expenditure at the same ,'ate as is provided for in the note or notes secured by this Mortgage. [n the event that such sums are not
immediately paid, they shall be added, along with tbe appropriate amount of capital stock or participation certificates, to the principal
balance of the indebtedness secured hereby and shall accrue interest as herein set tbrtb. All such sums shall be secured hereby.
9. Environmental Representations, Warranties and Covenants.
(a) Except as disclosed in writing to .Mortgagee, or except as otherwise provided in any loan agreement between Mortgagee and
Mortgagor which specifically refers to the Property, to the best knowledge of Mortgagor after due inquiry, lVlortgagor hereby further
represents, warrants and covenants as follows:
(i) No pollutants, contaminants (including oil or other petroleum products), toxic or hazardous substances, or solid or hazardous
wastes, as such terms are defined under any federal, state or local Environmental Law, regulation or ordinance (hereinafter
"Contaminants") have been, are being or will be generated, manufactured, produced, stored, disposed of, discharged, released
threatened to be released, or otherwise allowed to migrate or escape on, under or from tile Property in such quantities or
concentrations as would violate any federal, state or local Environmental Law, regulation or ordinance or as would require
Mortgagor to report such condition to any govermnental authority or to undertake removal or remedial action to clean up such
contaminants;
*ASN 1324 (10-01) Real Estate Mortgage, Fixture Filing and Security Agreement ~ (Page 3 of 7)
08874~0 70 l
(ii) No Contaminants are located on, in or under any property located adjacent to thc Property i~ such quantities or concentrations
as would constitute a violation of any Environmenta~ Law or as would require the owner of the adjacent property to report such
condition to an3, governlnental authority or to nndertake removal or remedial action to clean up stlch Contaminants;
(iii) Neither the Property, nor any portion thereof; nor any ad. jacent property or portion thereof, has been or is proposed to be listed
under the Comprehensive Environmental Response, Compensation and Liability Act (42 US.C Section 9601, et seq.), or all),'
analogous state law. Mortgagor shall immediately notify Mortgagee it' Mortgagor acquires any information concerning thc listing
or proposed listing of thc Property or any adjacent proper_ty and shall provide Mortgagee with any doctlmellls ill Mu,-Iga?r's
possession relative thereto;
(iv) No hazardous wastes, as defined under the Federal Resource Conservation and Recovery Act (42 USC Section 6901, et seq.),
or any analogous state taw ("Hazardous Wastes"), have been, are being or will be stored or treated in surface imponndments or
other structures or facilities located on the Property that are partially or entirely below the ground surface;
(v) No litigation, investigation, administrative order, consent order, agreements, or other action, proceeding or settlement
(hereinafter "Action") has previously been brought, is now pending, m- to the best knowledge of Mortgagor threatened against or
anticipated by Mortgagor, with respect to Mortgagor's use or management of Hazardous Materials or Hazardous Wastes or the
environmental condition of tile Property, including any underlying groundwater. Upon learning thereof, Mortgagor shall
immediately notify Mortgagee of any such Action or threatened Action and provide Mortgagee 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 currently in use or abandoned) are or were located on or under the Property aud
no Tanks are or were serving the Property described herein. With respect to any Tanks disclosed in xvriting to Mortgagee,
Mortgagor shall comply with all federal, state and local laxvs, regulations 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 tile Code of Federal
Regulations Part 112.
(b) Nothing herein shall be deemed to prohibit Mortgagor from (i) using, handling or storing hazardous materials or substances_ 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 activities are carried out (a) in a good and husbandlike manner in the ordinary course of business, and (b) in
con~pliance with all applicable environmental laws, regulations, permits, orders or other requiremeuts.
(c) In tile event that Mortgagor is ill breach of any of its representations, warranties or covenants as set Ibrth above, Mortgagor. at its sole
expense, shall take all action required, including environmental cleanup of tile Property, to comply with the representations, x~m'ranties
and covenants herein or applicable legal requirements and. in any event, shall take all action deemed necessary by appropriate
governmental authorities. Mortgagee shall have the right, but not the obligation, to advise appropriate governmental anthoritics of any
environmental condition on or affecting the Property that constitutes or may constitute a breach of Mortgagor's obligations hereunder.
(d) Mortgagor and its successors and assigns shall indemnify, defend, protect, and hold harmless Mortgagee, its directors, officers,
employees, agents, shareholders, successors and assigns and their officers, employees or agents, from and against any and all claims, suits,
damages, liens, losses, liabilities, interest, judgments, response and cleanup costs, demands, actions, causes of action, injuries,
administrative proceedings and orders, consent agreements and orders, penalties, costs and expenses (including any fees and expenses
incurred in enforcing this indemnity, ally out-of-pocket litigation costs and the reasonable fees and expenses of counsel) of any kind
whatsoever ("Claims") paid, incurred or suffered by, or asserted against Mortgagee, including but not limited to Claims arising out of loss
of life, injury to persons, trespass or damages to or contamination of property or natural resources, or i~iury to business, in connection
with or arising out of the activities of Mortgagor on the Property, Mortgagor's predecessors in interest, third parties xvho have been
invited, permitted or trespassed on the Property, or parties in a contractual relationship with Mortgagor, or any of them, or which directly
or indirectly arise out of or result from 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, threatened
release, or discharge of any Hazardous Material or Contaminant at or from the Property and/or 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 foreclosure of this Mortgage.
tim acceptance by Mortgagee of a deed in lieu of foreclosure, or any transfer or abandonment of the Property.
(f) The term "Environmental Law" shall mean any federal, state or local la,v, statute, ordinance, or regulation, now in effect or hereinafter
enacted, pertaining to health, industrial hygiene, or the environmental conditions on, under or about the Property, including bul not
limited to enactments requiring tile removal or containment of asbestos-containing materials in private buildings.
(g) Mortgagor shall permit, or cause auy tenant of Mortgagor to permit, Mortgagee or its agents, or independent contractors to enter and
inspect the Property at any reasonable time tbr purposes of determining, as Mortgagee deems necessary or desirable: (i) tile existence.
location and nature of any Hazardous Materials or Hazardous Wastes on, under or about the Property, (ii) the existence, location, nature,
magnitude and spread of any Hazardous Materials or Hazardous Waste that has been spilled, disposed or; discharged or released on,
under or about the Property, or (iii) whether or not Mortgagor and any tenant of Mortgagor is in compliance with applicable
*AgN 1324 (10 state'Mortgage, Fixture Filing and Security Agreem , (Page 4 o1' 7)
B
0 I 742:0 7O2.
Environnrenta] Law. If Mortgagor or its tenm~ts fail to comply fully with the terms of this subdivision (g), Mortgagee may oblam
affirmative injunctive relief to compel such compliance.
lO.
Grazing Rights. If any portion of the Property described in this Mortgage is used by Mortgagor as thc basis t'br obtaining grazing permits
or other grazing rights issued by any governmental agency, including without limita'tions tl~e Forest Service, U.S. Department 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 any other respect, except
as fully disclosed in writing to Mortgagee:
(b) Mortgagor will pertbrm all obligations imposed as a requirement of exercise of said grazing permits or other rights and will comply
with all laws, rules and regulations applicable thereto;
(c) Mortgagor will take such timely action as may be required to cause tile renewal or reissuance of said grazing permits or other rights
from time to time as they expire during the term thereo£ Mortgagor agrees and acknowledges that the failure to renew or cause the
reissuance of any said permits for any reason, whether the result of an act or omission of Mortgagor or for reasons beyond Mortgagor's
control, is an event of default hereunder and Mortgagee shall have the right to exercise the rights hereinafter set forth in this Mortgage;
and
(d) Mortgagor agrees to pay all lees, charges, rents or other payments accruing nndcr said permits or any renewals thereof prior to
delinquency. In the event Mortgagor I:ails to pay any such payment, the amount unpaid shall become a part of the indebtedness secured
by this Mortgage and shall be immediately due and payable.
IT IS MUTUALLY AGREED THAT:
Any award of damages in connection with any taking or condemnation or injury to the Property by reason of public use. or ~'(~r damages
resulting fi-om private trespass or i~ljtn-y to the Property, is absolutely and unconditioually assigned and shall be paid to Murtgagcc. uncler
the terms and conditions of tbis Mortgage pertaining to Rents. Upon receipt of such money Mortgagee may al)ply thc same on thc
indebtedness secured hereby. Mortgagor agrees to execnte such t'urther documents as ma5, be required to effect the assignments herein
made as Mortgagee may require.
At any time, without affecting the liability of any person tbr the payment of the indebtedness secured hereby, and without otherwise
affecting the security hereot; Mortgagee may (a) consent to or join in the making of any map or plat of the Property; (b) grant any
easement or create auy restriction thereof, (c) subordinate this Mortgage; (d) extend or modify, the term of the loan or loans secured
hereby; and (e) release without warranty, all or any part of the Property.
Prior to any default by Mortgagor in the payment, observance, performance and discharge of any condition, obligation, covenant, or
agreement of Mortgagor contained herein, Mortgagor may, fbr collection and distribution purposes only, collect and receive the Rents as
they come due and payable; 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 secured by this Mortgage and to the payment of all other sums payable uuder this
Mortgage and, thereafter, so long as the aforesaid has occurred, the balance shall be distributed to the account of Mortgagor. Upon any
such deIhult, Mortgagee may at any time without notice, either in person, by agent, or by a receiver to be appointed by a court, 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 thereoi-; in his own name, sue tbr or otherwise collect such rents, issues and profits, including those past due and unpaid, and apply
the same, less costs and expenses of operation and collection, including reasonable attorney's fees, upon any indebtedness secured
hereby, and in such order as Mortgagee may determine; also pcrlbrm such acts of repair, cultivation, irrigation or protection, as may be
necessary or proper to conserve tile value of the Property: also lease the stone or any part thereof for such rental, term. and ttpon such
conditions as its judgment may dictate; also prepare lbr harvest, remove, and sell any crops that may be growing upon the Property. and
apply the proceeds thereof upon the indebtedness secured hereby.
The entering upon and taking possession of tile Property, thc collection of such rents, issues, and profits, or the proceeds of fire and other
insurance policies, or compensation or awards for any taking of or damage to the Property, and the application or release thereof as
atbresaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
Upon default by Mortgagor in payment of any indebtedness secured hereby or in perlbrmance of any agreement hereunder, all sums
secured hereby shall immediately become due and payable at the option of the Mortgagee and m accordance with applicable state law. In
the event of default, Mortgagee may employ counsel to entbrce payment of the obligations secured hereby, may tbreclose and, il'
applicable, sell the Property by advertisement and sale, and in accordance with other applicable state law, and may exercise 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 secnrity now or hereafter held by Mortgagee for tbe
obligations secured hereby in such order and manner as Mortgagee may, in its sole discretion, determine. Resort to any or all such
security may be taken concurrently or snccessively and in one or several consolidated or independent judicial actions or lawful
nonjudicial proceedings, or both. If the obligation secured by this Mortgage is also secured by personal property, fixtures or crops,
Mortgagee may enl-brce its security interest in the personal property, fixtures and crops and its lien under this Mortgage in any manner
and in any order or sequence permitted by applicable law. All remedies are culnulative 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 lull all obligations to Mortgagee. The procedures
governing the enforcement by Mortgagee of its ~breclosure and provisional re~nedies against Mortgagor shall be governed by the laws of
*ASN 1324 (10-01) Real Estate Mortgage, Fixture Filing and Security Agreement ' ~ (Page 5 of 7)
the state in which the Property is located. Nothing contained herein shall be construed to provide that the substantive laxv of the state in
which the Property is located shall apply to Mortgagee's rights and Mortgager's obligations hereunder or under the promissory 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.
Tile failure on the part of tile Mortgagee to promptly enforce any right hereunder shall not operate as a waiver of such right and the
waiver by Mortgagee of any dei-hult shall not constitute a waiver of any other subseqnent del,quits. Subsequent acceptance o1' any
payment by the holder hereof shall not be deemed a waiver et' any clefMfit by Mortgagor. or of Mortgagee's rights hereunder as thc resell
'of any sate, agreement to sell, conveyance, or alienation, regardless of holder's knowledge o1' snch dcl~qull, sale. agrecme~l I~ sell.
conveyance, or alienation at the time of acceptance of such payment.
This Mortgage applies to, inures to tile benefit o~; and brads all parties hereto, tbeir heirs, legatees, devisees, administrators, e×ccutors.
successors and assigus. The term Mortgagee shall mean the holder and owner of any note secured hereby: or, il' the note has bccn
pledged, the pledgee thereof. In this Mortgage, whenever the context so requires, tile masculine gender includes tile feminine and/or
neuter, and tim singular number includes the plural. All obligations of Mortgagor hereuuder are.joint and several.
(a) In tile event the herein-described Property, or any part thereo~; or any interest therein, is sold, agreed to be sold, conveyed, alienated or
transferred, including any water transfer as defined in subsection (b) below, by Mortgagor, or by operation of law or otherwise, except by
inheritance, without Mortgagee's prior written consent, all obligations secured hereby, irrespective of the maturity dates, at the option of
the holder hereof, and without demand or notice, shall immediately become due and payable. Failure to exercise such option shall not
constitute a waiver of the right to exercise this option in the event of subsequent sale, agreement to sell, conveyance or alienation.
(b) A water transfer is any transfer, assignment, sale, exchange, gift, encumbrance, pledge, hypothecatiou, alienation, grant of option to
purchase, or other disposition of; directly, indirectly or in trust, voluntarily or involuntarily, by operation of law or otherwise, or the entry
into a binding agreement to do any of the foregoing with respect to all or any part of (i) the groundwater on, under, pumped from or
otherwise available to the Property, (ii) Mortgager's right to remove aud 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 xvater, whether such right is
appropriative, riparian, prescriptive 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 right, water storage right, water allocatioo,
or other water-related entitlement appurtenant or otherwise applicable to the Property by virtue of tile Property's being situated within the
boundaries of any district, agency, or other governmental entity or within the boundaries of any private water company, mutual water
company, or other non-governmental entity, or (v) any shares (or any rights under such shares) of any private water company, mutual
water company, or other nee-governmental entity pursuant to which Mortgagor or the Property may receive an5 rights.
In the event any one or more of the provisions contained in this Mortgage or in any promissory m/re(s) hereby secured shall Ib~ mir
reason be held to be invalid, illegal or unen[brceable in ally respect, such iuvalidity, illegality or uncnlbrceability shall nol al~lDct any ethel'
provision of this Mortgage or said promissory note(s), bet this Mortgage and said promissory note(s) shall be construed as il'such invalid.
illegal or unenforceable provision bad never been contained herein or therein.
*ASN,1324 (10-_., state Mortgage, Fixture Filing and Security Agreemt , (Page 6 of 7)
O8874,.,0
Signature(s):
'¥,.,.,_,.,-X,M .}.
MICHEAL J. MCMILLAN '
ANN T. MCMILLAN
g~l~'~E R. MCglLLA'N'
TR'ACY C7. MCMILLAN
VJED R. MCMILLAN
~ANCV~. MCMILLAN
704
Notary Acknowledgment:
STATE OF Wyoming )
ss.
COUNTY OF Lincoln )
On this ~ day of
County and State, personally appeared /
MICHEAL J. MCMILLAN
ANN T. MCMILLAN
STEVE R. MCMILLAN
TRACY C. MCMILLAN
3ED R. MCMILLAN
NANCY B. MCMILLAN
before me, the undersigned Notary Public in and fbr said
[( ) personally known to me] [~ proved to me on the basis of satisfactory evidence] to be the person(s) whose name(s) is/are
subscribed to this instrument and acknowledged to me that he/she/they executed it.
WITNESS my hand and official seal
Notary Public in and'for said County and State
',. *ASN 1324 (10-01) Real Estate Mortgage, Fixture Filing and Secul ity Agreement ~ (Page 7 of 7)
705
Exhibit "A"
Those portions of the following described land situate in Lincoln County, Wyoming lying
easterly of Wyoming State Highway 30 North:
T23N R119W of the 6th P.M., Lincoln County, Wyoming
Resurvey of Tract No. 49: That portion lying Eastward of the centerline of Oregon Short
Line Railroad Company (Union Pacific Railroad Company) right-of-way, more particularly
described as follows:
Beginning at Corner No. 1 of said Tract No. 49; thence S0°32'W, 100.50 chains to
Corner No. 2 thereof;
Thence West 20.00 chains to Corner No. I of Tract No. 45 of said Township and Range;
Thence West 18.82 chains along the South boundary of said Tract No. 49 to its
intersection with the center line of the right-of-way of said railroad company;
Thence N10°42'E, 61.36 chains along said center line to a North boundary line of said
Tract No. 49;
Thence East 8.12 chains to Corner No. 5 of said Tract No. 49, identical,with Corner No.
4 of Tract 57 of said Township and Range;
Thence N0°27'W, 40.10 chains to Corner No. 6 of said Tract 49 identical with Corner No.
3 of Tract 57;
Thence N89°43'E, 20.56 chains to Corner No. 1 of said Tract 49 identical with Corner
No. 2 of said Tract 57, to the point of beginning
and
Resurvey Tract No. 45: That portion lying Eastward of the centerline of Oregon Short
Line Railroad Company (Union Pacific Railroad Company) right-of-way, more particularly
described as follows:
Beginning at Corner No. I of said Tract 45; thence South 40.00 chains to Corner No. 2
thereof;
Thence West 20.00 chains to Corner No. 3 of said Tract 45;
Thence West 6.38 chains on a line to the intersection of said line with the centerline of
the right-of-way of said railroad Company;
Thence N10°42'E, 40.71 chains to the North boundary of said Tract 45;
Thence East 18.82 chains to Corner No. 1 of said Tract 45 to the point of beginning
and
Township 23 North, Range 119 West of the 6'h P.M., Lincoln County, Wyoming:
Section 17: Lots 15and32
Section 20: Lots 1, 17, 18and29
Section 21:S1/2S1/2
Section 14: Lot 23
Section 23: Lots 3 and 4, E1/2NW1/4;
Section 29: SE1/4NE1/4, NE1/4SE1/4; Lots 1, 4 and 16; E1/2 of Lots 18 and 27 and
more particularly described as follows:
Commencing at the Northeast Corner of Lot 18, running thence West 756.36 feet;
Thence South 2029.5 feet to the North boundary of Tract 42;
Thence East 756.36 feet to the Southeast Corner of Lot 27, Section 29;
Thence North 2029.5 feet to the place of beginning