HomeMy WebLinkAbout889177 Recording Requested by:
WHEN RECORDED MAiL TO:
WESTERN AgCREDIT, FLCA
BOX 95850
SOUTH JORDAN UT 84095-0850
Loan No. 4200032501
REAL ESTATE MORTGAGE,
FIXTURE FILING AND SECURITY AGREEMENT
4
THIS MORTGAGE is made this 2nd day of October, 2002 between BOOK '~-'}a?'~PR PAGE.
ORIS COOK RANCH, a Limited Partnership
hereinafter called "M6rtgagor", and WESTERN AgC~DIT, FLcA 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 aud possession the following described real property situated ill the County of L±ncoln~, State of~~ D
FOR DESCRIPTION OF REAL PROPERTY SEE EXHIBIT "A" ATTACHED HERE~4~
TOGETHER W~T~: all ~u~ld~n~s, s~ructur~s, ~quipm~n, ~x urns in u n~ tr~es, vin~s aud shrubs) ~nd ~p~o{~m~fifs'0t'~ kind m~d description
now o~ hm'~a~er constructed or plac~d thereon; all s~andin~ timber and timber to be cu[ located thereon; ~l e~istin~ and ~gtum water rights, however
evidenced, including irrigation and watering equipment and systems, ditches, laterals conduits, a',id]rlgfif~/&~kwhy u}dfJ'tb:Sc6hvey suc, water o'to
dram the above-described property, all of which rights are hereby made appumenant to the property,' and .all. pmnping plauts,' electrical generators
wind machines, and fencing and storage tanks, now or hereafter used in connection with the propemy, all of which are hereby declared to be fixtures;
all existing and future gr~ing 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, equi;ably or beneficially, whether constituting real or personal propegy (or subject to ally other characterizations), whether created or
authorized under existing or future laws or regulations, and however arising in, including without limitation, the water, water rights m~d other assets
and items described below in subparagraphs (a) through (h) which shall collectively be called "Water Assets" (herea~er collectively relkrred 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, propemy or other benefits are exchanged or received for or on account
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 ~y water bank or with any water authority, or any other water reallocation rights:
a. All water (including any water inventory in storage), water rights and eutitlements, other rights to water and other rights to receive water or
water rights of every kind or nature whatsoever includiug (i) the gronndwater 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 extract any such groundwater inchlding any
pernlits, rights or licenses granted by any governmental authority or agency or any rights granted or created by ally use, easements, covenaut,
agreelnent 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 governlnental authorization, or the right to
store any such water, (iv) an3' water, water right, water allocation, distribution right, delivery right, 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 all)' district, agency,
or other governmeutal entity or within the boundaries of any private water company, mutual water company, or other non-governlnental entity;
b. AIl stock, interest or rights (including auy water allocations, voting or decision rights) in auy entits,, together with any and all rights from an3'
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 simila,' or other arrangelnent for allocating water, to transport or deliver water, or otherwise to deal with an),
Water Asset;
c. All licenses, permits, 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, carry, 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 diversiou of water, the location of ally 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 adlninigtrative relief in any way relating to any water or
Water Asset;
*ASN 1324 (10-0_ .... ate Mortgage, Fixture Filing and Security Agreelne,,' .:::.,. , J'age I of 6)
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 all storage tanks, and other equipment used or usable in connection with such storage and any water bank deposit credits, deposit accouots or
other rights arising on account oftbe storage or nonuse of any water or any water or any other Water Asset; 8 8 ~:]}l
rights to transport, carry, allocate or otherwise deliver water or other Water Assets by any means wherever located;
f.
All
· g. All guaranties, warranties, marketing, management or service contracts, indemnity agreements, and water right agreements, other water related
contracts and water reallocation rights, all insurm~ce 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 - iVlortgagor 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 tile 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 iu possession and Mortgagee shall have the right, before or
after the occurrence of m~y default or event of default, to uotify 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, iMortgagee may apply aoy 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, transfers, conveys and sets over to Mortgagee all the 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 frmn any lease,
mineral lease, or agreement pertaining thereto (collectively the "Rents"); SUBJECT, HOWEVER, to tile right, power and authority given to and
conferred upon Mortgagor by Paragraph 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 m~Y of the Property, (iucluding 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 affeement. Mortgagor does hereby create and grant to Mortgagee a secm'ity interest in all such personal property described
herein; and further, grants to Mortgagee all of the rights and remedies of a 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 Un?Form Commercial Code and is to be
recorded in the county real estate records.
FOR THE PURPOSE OF SECURING: (1) 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 tbrth (notes may contain
variable or adjustable rate provisions):
Dated Maturity Face 'Amount Dated Face Amount
10/2/2002 12/1/2032
$227,000.00
Maturity
[
(2) The payment of such additional loans or advances, including advances under a revolving line of credit, with interest thereon, as hereafter may be
made to Mortgagor, or Mortgagor's successors or assigns, and/re' to parties whose obligatiou Mortgagor is guaranteeing, evideoced by a promissory
note or otherwise and any obligations evideuced by any guaranties executed by Mortgagor in favor of Mortgagee; PROVIDED HO\VEVER, THAT,
such additional loans advances guaranty obligations shall be secured by this Mortgage only if the p,'omissory note, guaranty, or other document
evidencing such loans or advances shall recite that it is to be secured by this IVlortgage; (3) tile payment of any substitute notes, renewals,
reamortizations, and extensions of all indebtedness secured by this Mortgage; (4) tile performance of every obligation and agreement of Mortgagor
whether contained or incorporated by reference in this Mortgage, or contained in any loan document or gum'anty executed by Mortgagor4n favor of
Mortgagee, with respect to aoy loan, advaoce, or guaranty seem'ed by th~s lVlortgage; and (>) the payment of a! ',s,.ums 'expended or advg~ced by
Mortgagee under or pursuant to tile 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 uot be impaired by the fact that at certain times hereafter there may exist no
outstauding indebtedness from Mortgagor to Mortgagee or no commitment to make loaos or advances.
A. TO PROTECT THE SECURITY OF THIS MORTGAGE, MORTGAGOR AGREES:
1. To use ioan proceeds solely for the purposes set forth in tile loan application(s) or agreements; to comply with tile Farm Credit Act of
1971, as amended, and/or the regulations of the Farm Credit Administration, now existing or as hereafter ameuded.
2. 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 on 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 Mm'tgagee, except in the
ordinary course of business; to complete or restore promptly and in good and workmanlike manner any building which may be
*ASN 1324 (10-0 . ';rte Mortgage, Fixtu ,ng and Security Agreemet i': .Page 2 of 6)
'constr?cted, damaged or destroyed thereon; to comply with all laws, covenants and rc~..,ctions affecting the Property; not to commit or
permit waste thereof; not to commit, suffer or permit any act upon the Property m violation of law; to do all other acts whic~h from the
character or use of the Property may be reasonably necessary, the specific enumerations Imrein not excluding tim general; to observe and
perform all obligations of Mortgagor under an), lease of the Property.
To provide, maintain and deliver to Mortgagee fire and all other types of insurance of the type and iu amonnts as iVlortgagee may require,
with loss payable clauses solely in favor of Mortgagee. In the event of loss, the insu,-ance proceeds, or any part tbereot; may be applied
by Mortgagee, at its option, to the reduction of the indebtedness hereby secured or to the restoration or repair of the property damaged.
In the event that the Mortgagor shall fail to provide satisfactory hazard insurance, Mortgagee may procure, on Mortgagor's behalf,
insurance in favor of Mortgagee alone. If insurance cannot be secured by Mortgagor to provide tile required coverage, such inability
shall constitute an event of default hereunder.
To appear in and litigate any action or proceeding purporting to affect the security hereof, the title to the Property, or tile ,'ights or po~vers
of Mortgagee; Mortgagee may appear m and litigate any such action or proceedings, including any banka'uptcy, 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 evidence of title. ~
To pa), on or before the due date all taxes and assessments affecting the Property, including all assessments upon water compauy stock
and all rents, assessments and charges for water, appurtenant to or used in connection with the Property; to pay, when dne, all
encumbrances, charges, and liens, on the Property or any part thereof, which 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 the debt hereby secured, or of an), suit xvbich the
Mortgagee may deem necessary to prosecute or defend to effect or protect the lien herein, including any proceeding in bankruptcy, or if
Mortgagee retains an attorney to advise Mortgagee in connection with this Mortgage or any other agree,nent related to the indebtedness
secured by this Mortgage, Mortgagor agrees to pay a reasonable sum as attorney's fees and all costs and legal expenses in connection
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. The fees and costs described herein and
elsewhere in this Mortgage shall be in addition to those set Ibrth in the loan agreement or any other written agreement between
Mortgagor and Mortgagee.
Should Mortgagor fail to ~nake 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 hereof, 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; commence, 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, purchase, contest, or compromise
any encumbrance, charge or lien which in the judgment of either appears to be prior or superior hereto; and in exercising any such
powers, incur any liability, expend whatever amounts in its absolute discretion it may deem necessary therefure, including attom%,'s,
accountant's, and appraisal fees, environmental fees, and costs of securing evidence of title, and all amounts so expended shall be
obligations of Mortgagor secured by this Mortgage. Nothing contained herein shall prohibit Mortgagee from entering the Property, at a
reasonable time and upon reasonable notice to Mortgagor, without incurring or assuming any obligations or liabilities whatsoever, for the
sole purpose of inspecting the Property.
To pay immediately and without de,nand all sums expended by Mortgagee pursuant to tile provisions hereof; with interest from date of
expenditure at the same rate as is provided fur in the note or notes secured by this Mortgage. in the event that such sums are not
immediately paid, they shall be added, along with the appropriate amount of capital stock or participation certificates, to the principal
balance of the indebtedness secured hereby and shall accrue interest as herein set forth. All such sums shall be secured hereby.
9. Enviromnental 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, Mortgagor 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 the 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;
(ii) No Contaminants are located, on, in or under any property located adjacent to the Property in such quantities or concentrations
as would constitute a violation of an), Environmental Law or as would require the owner of the adjacent property to report such
condition to any governmental authority or to undertake removal or remedial action to clean up such Contaminants;
(iii) Neither the Property, nor any portion thereof, nor an), adjacent property or portion thereof, has been or is proposed to be listed
under the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601, et seq.), or any
analogous state law. Mortgagor shall immediately notify Mortgagee if Mortgagor acquires an), infum~ation concerning the listing
*ASN 1324 (10-01) Real Estaie Mortgage, Fixture Filing and Security Agreement 'kl d ,.. (Page 3 of 6)
or proposed listing of the Property or an), ad.iacent property and shall provide Mortgagee with any documents in Mortgagor's
possession relative thereto;
(iv) No hazardous wastes, as defined under tbe Federal Resource Conservation and Recovery Act (42 U.S.C. Section 6901, et seq.),
or any analogous state law ("Hazardous Wastes"), have been, are being or will be stored or treated in su,-face impoundments or
other structures or facilities located on the Property that are partially or entirely below the ground surface;
(v) No litigation, investigaiion, administrative order, consent order, agreements, or other action, proceeding or settlement
(hereinafter "Action") has previously been brought, is now pending, or 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 the Property, including any underlying groundwater. Upon learning theremt; 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 and
no Tanks are or were serving the Property described herein. With respect to any Tanks disclosed in writing to Mortgagee,
Mortgagor shall comply with all federal, state and local laws, 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 the 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
compliance with all applicable environmental laws, regulations, permits, orders or other reqnirements.
(c) In the event that Mortgagor is in breach of any of its representations, xvarranties or covenants as set forth above, Mortgagor, at its sole
expense, shall take all action required, including environmental cleanup of the Property, to comply with the representations, warranties
and covenants herein or applicable legal requirements and, iu 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 authorities 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, defeod, 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 (inclnding any fees and expenses
incurred in enforcing this indenmity, any 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 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, 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 fi'om or in any way connected with the Property, whether or not caused by Mortgagor or within the
control of Mortgagor, including without limitatiou: (i) the presence, use, generation, treatment, storage, disposal, release, tbreatened
release, or'discha,'.ge 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 an)' of the representations, warranties and covenants contained
herein; and (iii) Mortgagor's violation or alleged violation of any applicable Environmental Law, regulation or ordinance.
(e) Mortgagor's representations, warranties, covenauts 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 ibreclosure of this Mortgage,
the acceptance by Mortgagee of a deed in lien of foreclosure, or any transfer or abandonment of the Property.
(f) The term "Enviromnental Law" shall mean any federal, state or local law, statute, ordinance, or regnlation, now in effect or hereinafter
enacted, pertaining to health, industrial hygiene, or the environmental conditions on, under or about the Property, including but h~[?
limited to enactments reqtfiring tbe removal or containment of asbestos-containing materials in private buildings.
10.
(g) Mortgagor shall permit, or cause any tenant of Mortgagor to permit, Mortgagee or its agents, or indepeudent contractors to enter and
inspect the Property at any ,'easonable time for pnrposes of determining, as Mortgagee deems necessary or desirable: (i) the 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 of, discharged or released on,
under or about the Property, or (iii) whether or not Mortgagor and any teuant of Mortgagor is in compliance with applicable
Environmental Law. If Mortgagor or its tenants fail to comply fully with the terms of this subdivision (g), Mortgagee may obtain
affirmative injunctive relief to compel such compliance.
Grazing Rights. If any portion of the Property desc?ibed in this Mortgage is used by Mortgagor as the basis for obtaining grazing permits
or other grazing rights issued by any governmental agency, including without limitations the Forest Service, U.S. Department of
Agriculture or the Bureau of Land IvIanagement, U.S. Depamnent of Interior, Mortgagor covenants and agrees as follows:
*ASN 1.32'4, (10-0 ate Mortgage, Fixm. mg and Security Agreemel :::. ~ t ?age 4 of 6)
- 654
(a) Said grazing permits or other rights are in good staoding and have not been modifm~, reduced or limited in any other respect, except
as fully disclosed in ~ritiqg lo Mo~ghgee:'
Mo2gagor~wd% perform al~. obhgat ohs imPosdd,, aS a re~pirement of exercise of said gr~ing permits or other rights and will comply
F~ ~, ~,L, ..... ,[i'~,, a~d ,-,~,l~t~ms hn~cable thereto;
~ ~ . .
~;[~p~ngagoff~ake suc~*~lg$~ion as may be reqmred to cause the renewal or reissuance of said grazing permits or other rights
~ (257[~$fi~me t0~s they ~{ ~i~g the term thereof. Mortgagor agrees and acknowledges that the thilure to renew or cause the
f3V~~~~}~n~eason, whether the result of an act or omission of Mortgagor or for reasons beyond Mortgagor's
~-~-r- ' - , .... ~ ~ ....
~onrm[ m m~*~,~r,mmmt*~mv~,~r and Mortgagee shall have the right to exercise the rtghts herema~er set IDrtb in this Mortgage;
and
(d) Moagagor agrees to pay all fees, charges, rents or other payments accruing under said permits or any renewals thereof prior to
delinquency. In the event Mo~gagor fails 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 i6iury to the Property by reason of public use, or for damages
resulting from private trespass or injury to the Property, is absolutely and unconditionally assigned and shall be paid to Mortgagee, under
the terms and conditions of this Mortgage pertaining to Rents. Upon receipt of such money Mortgagee may apply the same on the
indebtedness secured hereby. Mortgagor agrees to execute such further documents as may be required to effect the assignments herein
made as Mortgagee may require.
At any time, without affecting ,be liability of any person for the payment of the indebtedness secm'ed hereby, and without otherwise
affecting the security hereol; Mortgagee may (a) consent to or .loin in the making of any map or plat of the Property; (b) grant any
easement or create any restriction thereof; (c) subordinate this IVlortgage; (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 m~y default by Mortgagor in the payment, observance, performance and discbarge of any condition, obligation, covenant, or
agreement of Mortgagor contained herein, Mortgagor may, for collection and distribution purposes only, collect aod receive the Rents as
they come due and payable; the Rents are to be applied by Mortgagor to the payment of,be principal and interest and all otber sums due
or payable on any promissory note or guaranty secured by this Nlortgage and to tbe payment of all other sums payable under tbis
Mortgage and, thereafter, so iong as the atbresaid has occurred, the balance shall be distributed to the account of Mortgagor. Upon any
such default, Mortgagee may at any time without notice, either m person, by agent, or by a receiver to be appointed by a court, and
wi,bout regard to the adequacy of aoy security for the indebtedness hereby secured, enter upon and take possession of tbe Property or any
part thereot; in his own name, sue for or otherwise collect such rents, issues and profits, including those past due and unpaid, and apply
the same, less costs and expenses of operation m~d collection, iucluding reasonable attorney's fees, upon any indebtedness secured
hereby, and in such order as Mortgagee may determine; also perform such acts of repair, cultivation, irrigation or protection, as may be
necessary or proper to conserve the value of the Property; also lease the same or any part thereof for snch rental, term, and upon such
conditions as its judgment ~nay dictate; also prepare/~br 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 the Property, the 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
aforesaid, shall not cure or waive any default or uotice 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 pertbrmance of any agreement hereunder, all sums
secured hereby shall immediately become due and payable at tile option of the Mortgagee and in accordance with applicable state law. In
the event of defimlt, Mortgagee may employ counsel to enforce payment of the obligations secured hereby, may lbreclose aud, if
applicable, sell the Property by advertisement and sale, and in accordance with other applicable state law, and may exercise such other
rights aod remedies granted by taw and equity, which rights and remedies sball be cumt, lative and not exclusive. Mortgagee may resort
to and realize upon the security hereunder and any other real or personal property security now or bereafler held by Mortgagee for the
obligations secured hereby in such order aod manner as Mortgagee may. io its sole discretion, determine. Resort to any or all such
security may be taken concurreotly or successively and iu 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 enforce its security interest in the personal property, fixtures and crops and its lien under this Mortgage in auy manner
and in any order or sequence penni,ted by applicable law. All remedies are cumulative and none are exclusive; no election by Mortgagee
to pursue one remedy or item Of collateral shall be dec,ned to be a release or waiver of any other item of collateral or a release or
modification of the liability of Mortgagor or any guaraotor to pay and pedbrm in fldl all obligations to Mortgagee. The procedures
governing the enforcemen[ by Mortgagee of its foreclosure and provisional remedies against Mortgagor shall be governed by the laws of
the state in which the Properly is located. Nothing contained herein shall be construed to provide that tile substantive law of ,be state in
Which the Property is located shall apply to Mortgagee's rigl~ts and Mortgagor's obligations hereunder or unde,' the promissory note(s) or
guaranties described herein, which m'e and shall continue to be governed by the substantive law of the state in which the promissory
note(s) or guaranties were executed.
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 constilute a waiver of any other subsequent defaults. Subsequent acceptance of any
*ASN 1324 (10-0l) Real Estate Mortgage, Fixture Filin~ and Security Agreement i~- ~.~ ;.. (Page 5 0£6)
payment by the holder hereof shall not be deemed a waiver of any default by Mortgagor, or o£ Mortgagee's rights hereunder as the result
of any sale, agreement to sell, conveyance, or alienation, regardless of holder's knowledge of such default, sale, agreement to sell,
conveyance, or alienation at the time of acceptance of sucb payment.
This Mortgage applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors,
successors and assigns. The term Mortgagee shall mean the holder and owner of any note secured hereby; or, if the note has been
pledged, the pledgee thereof. In this Mortgage, whenever the context so requires, the masculine gender includes the feminine and/or
neuter, and the singular number includes the plural. All obligations of Mortgagor hereunder are joint and several.
(a) In the event the herein-described Property, or any part thereof, 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, al! 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, encmnbrance, pledge, hypothecation, 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 fi'om or
otherwise available to the Property, (ii) 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, 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 allocation,
or other water-related entitlement appurtenant'or otherwise applicable to the Property 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 private water COlnpany, 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 non-governmental entity pursuant to which Mortgagor or the Property may receive any rights.
In the event any one or more of the provisions contained in this Mortgage or in any promissory note(s) hereby secured shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other
provision of this Mortgage or said promissory note(s), but this Mortgage and said promissory note(s) shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein or therein.
BORROWER WAIVES ALL RIGHTS OF HOMESTEAD EXEMPTION IN THE PROPERTY AND RELINQUISHES ALL RIGIITS OF CURTESY AND
DOWER IN THE PROPERTY.
Signature(s):
ORIS COOK RANCH, a Limited Partnership
ORIS K. COOK, TRUSTEE of THE ORIS K. COOK FAMILY
LIVING TRUST dated October 25s 2000, General Partner
KElkl}qETH ~V. COOK, General Phrtner
Notary Acknowledgment:
STATE OF i )
/ ,~ SS.
couNTY )
On this ,¢¢~itl~ day of {~~, 20 ~_~.~ before me, the undersigned Notary Public in and for said County and State, personally appeared ORIS K.
COOK, Trustee of THE ORIS K. COOK FAMILY LIVING TRUST dated October 25, 2000 and KENNETH W. COOK [( ) personally known to me] [( ) proved to me
on the basis of satisfactory evidence] to be the person(s) who executed tbe within instrument as GENERAL PARTNERS of the partnership therein named, on behalf of
the partnership, and acknowledged to me that the partnership executed it.
*ASN 132'4. (10-0: . :a{e Mortgage, Fixtu. .rog and Security Agreeme~
Notary Public in and for said County and State
,/'age 6 of 6)
EXHIBIT "A"
~;;;--,0,,~ Legal Description
Beginning at a point 1320 feet North of the Southwest corner of Section 4, Township 24
North, Range 119 West of the 6~h P.M., Lincoln County, Wyoming, and running thence
North 830 feet, more or less, to the South side of the County Road up Smith's Fork;
thence Easterly along the South side of said County Road following its meanderings
across the North half of the Southwest quarter of said Section 4 to the East line of said
Southwest quarter of Section 4; thence South 740 feet; and thence West 2553 feet,
more or less, to the place of beginning
Aisc
All of the Southwest quarter of the Southeast quarter of Section 34, Township 25 North,
Range 119 West of the 6th P.M., Lincoln County, Wyoming
Aisc
Beginning at the qu&der section corner on the North line of Section 4, Township 24
North, Range 119 West of the 6m P.M., Lincoln County, Wyoming, being the Northeast
corner of Lot 3 in said Section 4, and running thence South 745 '/~ feet, more or less, to '
the North bank of the Twiss irrigation Ditch; thence' along the North bank of said ditch on
a course about South 73°25' West 1054 feet, more or less, to a stake; thence along said
North bank about South 30°01' West 573 feet, more or less, to West line of said Lot 3;
thence South 257 feet, more or less, to the North bank of the Kinney Irrigation Ditch;
thence Southwesterly along the North bank of said Kinney Irrigation Ditch, to the West
line of said Section 4; thence Northwesterly along the North bank of said ditch about 210
feet to an iron stake near the Old Onyx Mill (said stake is South 51°00, West from the
Northeast corner of said Lot 3 about 3540 feet); thence running SOuth 25°50, West 208.7
feet; thence North 64°10. West 208.7 feet; thence North 25°50, East 208.7 feet to a post
on' the North bank of said Kinney Irrigation Ditch (and taking in one acre of ground
around and including Old Onyx Mill); thence running Northwesterly along the North and
Easterly bank of said Kinney Irrigation Ditch to the North line of Section 5 in Township 24
North, Range 119 West; and thence Easterly along said North section lines to the
Northeast corner of said Lot 3, and place of beginning
ExCepting therefrom the following described tract, to-wit:
A tract of land located in Tract 104, Township 24 North, Range 119 West of the 6th P.M.,
Lincoln County, Wyoming, being more particularly described as follows:
Commencing at the Northeast corner of said Tract 104 thence South 89°50, West,
1334.61 feet along the North line of said Tract 104; thence South 0°'10'00'' East. 1263.43
feet to the point of beginning of the tract herein described: thence South 6°19'41.. West,
480.00 feet; thence South 74004'05" West, 171.87 feet; thence South 50011'34'' West,
155.07 feet; thence North 59°56'28" West, 173.93 feet; thence North 7"30'38" West,
61.40 feet; thence North 0°17'09'' West; 150.00 feet; thence North 56°45'17" East,
593.80 feet, more or less to the point of beginning
Als 0 -7
All of Tract 45 except that part described as follows: Beginning at a point designated as
2/45 of Tract 45, Township. 25 North, Range 119 West, Sixth Principal Meridian,
657
Wyoming 'and running thence West 302 feet more or less to the center of the present
state highway; thence South 11°55' East along the middle of said state highway to the
West line of Tract 42; thence North to point number 5/45; thence East 39.75 chains to
corner number 4; thence North 0°54` East 19.88 chains to corner number 3; thence West
39.90 chains to corner number 2 and point of beginning; and excepting that part of
Tract 45 Township 25 North, Range 119 West of the 6th Principal Meridian described as
follows: Commencing at Point No. 6/45, being the Southeast corner thereof; thence
West along the South line of said tract to the Southwest corner thereof; thence North
along the West line of said tract 80 rods; thence East to the center line of the present
Wyoming State Highway; thence Southeasterly along the center line of said highway to a
point where said center Ii'ne crosses the South line of tract 42; thence West to the place
of beginning
Aisc
That pad of Tract 42 and 45, Township 25 North, Range 11g West of the 6~h Principal
Meridian described 8s follows: Commencing at point No. 6/45 of Tract 45, being the
Southeast Corner thereof: thence West along the South line of said tract to Point No.
7/45 being the Southwest corner thereof, thence North along the West line of said Tract
80 rods: thence East to the center line of the present Wyoming State Highway: thence
Southeasterly along the center line of said highway to a point where said cent@dine
crosses the South line of Tract 42: thence West to the pJace of beginning
Aisc
Commencing at corner No. 8/45 in Tract 45, Township 25 North, Range 119 West of the
6th Principal Meridian, and running thence North 9° West 527 feet, thenCe North 42° East
104 feet, thence North 37° West 104 feet, thence West 184 feet to the Oregon Short
Line Railroad right of way, thence South 10°39' East 693 feet along the East Boundary
of the Oregon Short Line Railroad Company's right of way, thence South 89°30' East
130 feet to the place of beginning
Also.
A parcel of land situate within the Western most portion of Resurvey Tract 104 of
Township 24 North, Range 119 West of the 6t~ Principal Meridian, described in particular
as follows to wit:
Beginning at Corner No. 3 of said Tract 104; thence South 89°40' East, 13.03 chains
along the Southern boundary of said Tract 104 to the Western boundary of the land
deeded to the San Francisco Sulphur Company as described on Page 88 of Book 18 of
the Lincoln County Deeds; thence North 27°3, East, 2.97 chains to a point on the
Northeasterly bank of the Kinney Irrigation Ditch, a meander point on said Western
boundary; thence meandering Northerly on the Northeasterly bank of said Irrigation
Ditch; North 62°1'West 9.03 chains; North 26"25' West, 7.76 chains; North 11°3, West
8.81 chains; North 6°36' East, 10.86 chains to the Northern boundary of said Tract 104;
thence South 89°50, West, 2.51 chains to Corner No. 4 of said Tract 104; thence South
33.18 chains to the point of beginning
Also
All of Tract 48, Township 25 North, RanGe 119 West of the 6~h Principal Meridian, Lincoln
County, Wyoming
Also
That pad of Tract 105, Township 24 Nodh, Range 119 West: lying East of the present
Wyoming State Highway known as 30 North excepting a parcel of land situate within the
boundaries of Resurvey Tract No. 105, Township 24 North, Range 119 West of the 6t~
P.M.: said parcel of land forming a portion of the right of way for U.S. Highway No. 30
North, as shown in particular upon the plat of the survey for F.A.P. No. 34 Section "A" by
the Wyoming State Highway Department as follows to wit: Beginning at a point on the
South boundary line of said Tract 107 from whence corner No. 2 of Tract 105 of said T.
& R. bears South 89°20' East, '1258.4 feet; thence North 89°20' West 153.4 feet; thence
North 11°58. West, 2211.9 feet; thence North 89°50. East, 153.2 feet along the North
boundary line of said Tract 105; thence South 11°58' East 2214.4 feet to the place of
beginning
Also
Nodheast ~A Southeast %, Section 27; N ~ Southwest %, Northwest ¼ Southeast ¼ ,
Section 26 Township 25 North, Range 119 (or Tract 69) on resurvey, Lincoln County,
Wyoming
Excepting therefrom lands conveyed to Keith Cornia by deed recorded 12-8-1989, at
Book :;'81 PR, Page 113, re-recorded 10-28-1992, at Book 319PR, Page 506:
Together with the following water rights registered with the State of
Wyoming Department of Water Resources:
Water Permit #1065~ for 1.64 cfs of irrigation water from Smith's Fork
with a priority date of May 30, 1903 and a Territorial water right for
7.38 cfs of irrigation water from Smith's Fork with a priority date. of
June 10, 1885