Loading...
HomeMy WebLinkAbout878180 Recording Requested by: WHEN RECORDED MAIIb TO: WESTERNBox 95850 AgCREDIT, FLCA B~8 I ]~' (} ~"~i. ..... ?l.[-.p ,~',. ? ~::'N~ ,~ '.~}: :7'~' o~... SOUTH J()~AN UT 8409520850 ,.]~:~ 3 ~' ( ' .......... '" ~'~ Loan No. 0638701502 and 0638701503 REAL ESTA%E MORTGAGE, FIXTU~ FILING AND SECU1UTY AGREEMENT THIS MORTGAGE is made this lZth day of December, 2001 between 10 PR PAGE EVAN POPE DOTTY JO POPE hereinaRer called "Mortgagor", and WESTERN AgCRED1T, FLCA hereinafter called "Mortgagee", a corporation, existing and operating under'th~ 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 County of L~imoZn, State of ~yom~_: FOR DESCRIPTION OF ILEAL PROPERTY SEE EXHIBIT "A" A~ITACHED HERETO AND MADE A pART IlEREOF TOGETHER WITH: all buildings, structures, equipment, fixtures' (including trees, vines and shrubs) and improvemer~ts of every kind and description now or hereaRer cons.tructed 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, condaits, 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 cormectlou 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 aod appm'tenances to the property; and all right, title, and interest at aoy time of Mortgagor (or any of its hailees, agents, or instrumentalities), whether now existing or hereafter arising or acquired, xvhether dh'ect or indirect, whether owned legally, of record, equitably or beneficially, whether constituting real_ or personal property (or sub.jeer to any other characterizations), whether created or authorized under existing or future laws or regulations, and however arising in, including without limitation, the water, water rights and other assets and items described below in subparagraphs (a) through (h) which shall collectively' be called "Water Assets" (hereafter collectively referred to as the "Property"). References to "water" and "water rights" are used herein Jn the broades~ and most comprehensive sense of the term(s). The term "water" includes water rights and right to xvater or whatever rights to money, proceeds, property 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 any 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 entitlements, other rights to water and other rights to receive water or water rights of every kind or nature whatsoever including (i) the groundwater on, undcT, pumped from or other~vise available to tim Property, whether as the result of groundwater rights,, contractual rights or otherwise, (ii) Mortgagor's right to remove and extract any such groundwater including any permits, rights or licenses granted b5~ any governmental authority or agency or arty rights granted or created by any'use, easements, covenant, agreement or contract with any person or entity, (iii) any rights to whicl~ 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 governmental authorization, or the right to store any such water, (iv) any. 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 any district, agency, or other governmental entity or within the boundaries 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 fi-om any entity or other person to acquire, receive, exchange, sell, lease, or othem'ise transfer any water or other Water Assets, to store, deposit or otherwise create water credits in a water bani< or similar or other arrangement for allocating water, to transport or deliver water, or ot rerw se to deal with any Water Asset; c. AIl licenses, perlnits, 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 diversion of water, the location of any water or Water Asset, the place of use of' any water or Water Asset, or the parpose of the use of any water or Water Asset; d. All rights, claims, causes of action, judgments, awards, and other iodicial arbiter or administrative relief in any way relating to any water or Water Asset; *ASN 132,1 (10-0t) R~al l.:.stale Mortgage Fixture Filing and Security Agreement (Page 1 of 6) e. At1 stori~ge and tl eatment rights for any water or any' olher Water Asset, whether on or off the Property or other property of Nlortgagor, together with all storage tanks, and other equipment used or usable in cmmection with such storage and any water bank deposit credits, deposit accounts or other rights arising on account of the storage 07' nonuse of any water or any' water or m~y other \,Vater Asset; f. Ali rights io transport, carry, allocate or otherwise deliver water or other Water Assets by any means wherever located; g. All guaranlies, warranties, marketing, management or service contracts, indemnity agreements, and water right agreements, other water related contracts and water 7eal]ocation rights, all insurance policies regarding 07' relating to' any Water Asset; h. All rants, issues, profits, proceeds and other accc;unt$, 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 o l~ any Water Asset. Absolute Assignment of All Revenue Prom Water Assets - Mortgagor hereby abso[utely and unconditiona]ly assigns to Mo 'tgagce all proceeds, rents, issues and profits £rom any use (apart t'rom watering plants on the Property or other ordinary use on the Property), nunuse, sa]e, 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 occnrrence of any default or event of default, to notify any account debtor to pa,',, all amounts owing with respect to those proceeds, rents, issues and profits directly to Mortgagee. Except as otherwise agreed in writing by Mortgagee, Mortgagee may apply any such collection (and any. rents, issues, profits and proceeds) to any indebtedness owed to IVlortgagee in any order, priority or manner desired by Mortgagee, MORTGAGOR ABSOLUTELY AND UNCONDITIONALLY ASSIGNS, transfers, cortveys and sets over to Mortgagee all the rents, royalties, issues, profits, revenue, income and other benefits of the property arising fi'om the use or enjoyment of all or an), portion thereof or fi'om any lease, mioeral lease, or agreement pertaining thereto (collectively the Ren s ); SUBJECT, HOWEVEP,, to the right, power and authority given to and conferred upon Mortgagor by Paragraph B.3 hereof. PERSONAL PROI'ERTY SECURITY AGREEMENT - Ail of the Property will be considered to the fullest extent of fire law to be real property for purposes of this Mortgage. To the extent that any of the Property, (including xvithout 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 floes hereby create and grant to Mm'tgagee a security interest in all such personal property described herein; and fi~rther, 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 Unitbrm Commercial Code and is to be recorded in the county real estate records. FOR THE PURPOSE OF SECURING: (l) payment of the indebtedness or obligatJohs evidenced by the following promissory note(s) and/or guaranties executed by lVlortgagor and/or others to the Mortgagee at the times, in the manner and with interest as therein set forth (notes may contain variable or adjustabl~ rate provisions): Dated Maturity Face Amount Dated Maturity Face Amount 12/12/2001 1/1/2932 . $167,000.00 12/12/2001 I/1/2022 $70,000.00 (2) The payment of such additioo,I, loans or advances, including advances under a revoMng line of credit, with interest thereou, as hereafter may be made to Mortgagor, or Mortgagor's successors or assigns, and/or to parties whose obligation Mortgagor is guaranteeing, evidenced by a promissory note or otherwise and any obligations ebidenced by any guaranties executed by Mortgagor Jn favor of Mortgggee; PROVIDED HOWEVER, THAT, such additional loans advances guaranty obligations shall be seem'ed by this Mortgage only if the promissory note, guaranty, or other document evidenciog 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 performance of every obligation and agreement of Mortgagor whether contained or incorporated by reference in this Mortgage, or contained in any loan document or guaranty executed by Mortgagor in favor of Mortgagee, w/th respect to any loan, advance, or guaranty secured by this Mortgage; and (5) the payment of all sums expended or advanced by Mortgagee under or pursuant to the terms of this MorIgage, together witi~ interest thereon as herein provided. The continuing validity and priority of this Mortgage as security tbr future loans, advances, or guaranties shall not be impaired by the fact that at certain times hereafter there may exist no outstanding indebtedness from Mortgagor to Mortgagee or no commitment to make loans or advances. A. TO PROTECF THE SECURITY QF THIS MORTGAGE, MORTGAGOR AGREES: 1. To use loan pro'ceeds solely for the purp6ses set forth in ihe loan application(s) or agreements; to con]ply with the Farm Credit Act of 1971, as amended, and/or the regulations of the From Credit Administration, now existing or as hereafter amended. 2. 'Fo 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 [~migated; 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 p~ior written consent of Mortgagee, except in the 1324 (104)1) Real Estate Moltgage, Fixtme Filing and Security Agreement (Page 2 of 6) ordinary course of business; to complete or restore prmnptly and in good and v.?"_a'~4~ke manner any building which may b~ constructed damaged or destroyed thereon; to comply with all laws, covenants aud rcs~ : _. ' ..; ~fikcting tim Property; not to commit or permit waste thereoP; not to comtnit, suffer or permit any act upon the Property in violation of law; to do all other acts which from the character or use of the Property may be reasonably necessary, the specific enumerations herein not ¢xclnding the general; to observe and perform all obligations of Mortgagor under any lease of/be Property. 3. To provide, maintain and deliver to Mortgagee fire and all other types of insurance of the type and in amounts as MoNgage6 may require, with loss payable claas¢s solely in favor of Moagage¢. In th~ cwnt of loss, the insurance proceeds, or any part thereof, may b~ applied by Mortgagee, at its option, to the reduction of the indebtedness hereby secured or to ttm restoration or repair of th~ property damaged. In the event that the Mortgagor shall fail to provide satisfimtory hazard insurance, Mo~gagee may procure, on Mortgagor's behalf, insurmme in favor of Mortgagee alone. If insurance cannot b~ secured by Mortgagor to provide the required coverage, such inabilHy shall constitut~ an ~vent of default hercander. 4. To appear i.n and litigate any action or proceeding purporting to affect the sect rity hereoh the title to the Properly, or the rights or powers of Mortgagee; Mortgagee may appear in and litigate any such action or proceedings, including any bankrtfptc?, partition or condemnatioa proceeding, affecting the Property, or Mortgagde's interest therein in which ~vent Mortgagor agrees to pay all costs and . expenses thereoL including attorney ~ fees and costs of securing evidence of title. 5. To pay on nr before tim doe date all taxes mid assessments affecting the Property, inclnding all assessments upon water company stock and all rents, assessments and charges for water, appurtenant to or used in connection with the Property; to pay, when due,.all' encombrances, charges, and liens, ou the Property of' any part thereof, u'hich at any time appear to be prior or superior hereto. 6. In case of any shit to tbreclose this Mortgage or to collect any charge arising out of the debt hereby secured, or of auy suit which the Mortgagee may deem necessary to prosecute or defend to effect or protect the lien herein, including any proceeding in bankruptcy, or if Mortgagee 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 fees and all costs and legal expenses in connection with said suit, and fi~rtber 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 foreclosnre. The fees and costs described herein and elsewhere in this Mortgage shall be in additiou lo those set forth in the loan agreement or any other written agreement between Mortgagor and Mortgagee. 7. Should Mortgagor fail to make any payment or to do any act as provided for in this Mortgage, then Mortgagee, but without obligation to do so and withont notice to or demand npon Mortgagor and without'relefising 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 Propel~y for such purposes; commence, appear in aod litigate any action or proceeding purporting to aftZct the security hereof or the rights or powers of Mortgagee, including any bankruptcy proceeding affecting the Property pay, purchase, contest, or comproinise any encumbrance, charge or lien which in the judgment of either appears to be prior or superior hereto; and in exercising my such powers, incur any liability, expend whatever amonnts in its absolute discretion it may deem necessary therefore, including attorney's, accountm~t'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 reasouable time and upon reasonable notice to Mortgagor, without incurring or assmning any obligations or liabilities whatsoever, for the sole porpose of inspecting the Property. 8. To pay immediately aud without demand all sums expended by Mortgagee pursuant tt~ the provisions hereof, with interest fi'om date of expenditure at the same rate as is provided for 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 stuns shall be secured hereby. 9. Environmental Represeutations, Warraoties and Covenants. (a) Except as disclosed in writing to Mortgagee, or except as otherwise provided in any loan agreement between Moagagee and Mortgagor which specifically ret~rs to the Property, to the best knowledge of Mortgagor after due inquiry, MotXgagor hereby fm'ther represents, warrants and covenants as follows: (i) No pollutants, contaminants (including oil or other petroleum products), toxic or hazardous snbstances, or solid or hazardous wastes, as such terms are defined nnder any federal state or local Environmeutal Law, regnlation or ordinance (hereina~er "Contanfiuants") have been, are being or will be generated, manufactured, produced, stored, disposed oh discharged, released threatened to be released, or otherwise allowed to migrate or escape on, ooder or fi'om the PropeIiy 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 snch condition to any govermnental authori~ or to nndertake 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 quautities or concentrations as wonld constitute a violation of any Enviroumental Law or as would require the owner of the a4jacent property to report such condition to any governmental auflmrity or to undertake removal or remedial action to clean up such Contanfinants; (iii) Neither the I'roperty, nor any po:~ion thereof, nor any at[iacent property or Portion thereoh has been or is proposed to be listed under the Comprehensive Environmeutal Response, Compensation and Liability Act (42 U.S.C. Section 9601, et seq.), or any *ASN 1324 (10-01) Real Estate Mortgage, Fixture Filing and Security Agreement (Page 3 of 6) analogous state law. lVlortgagor shall immediately notify Mortgagee ifNlortgagor ac{!liit~es any inlbrt.iation concerning the listing or v,'?ased listing of the Property or ney adjacent property and shall provide Mortgagee with any documents in Mortgager's poooession relative thereto; (iv) No hazardouJ wastes, as defined under' the Federal Resource Conservation and Recovery Act (42 U.S.C. Sectio. n 690 i, et seq.), or any analogous state law ("H~ardous Wastes"), have been, are being or will be stored or treated in surface impoundments or other structures or hcilities located on the Property that are partially or entirely below the ground surface; (v) No litigation, investigation, administrative order, consent order, agreetnents, 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 Mortgager's use or management of Hazardous Materials or HaZardous Wastes or the environmental conditiml of the Property, including any underlying groundwater. 'Upon learning thereo[, Mortgagor shall immediately notify Mortgagee of an), 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 oi: rely other storage tanks ("Tanks") (whether currently in use or abandoned) are or were located on or ~mder the Property and uo Tanks are or were serving the Property described herein. With respect to any Tanks disclosed ia 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) usiug, 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-haz~dous wastes, so long as such activities are carried out (a) in a good and husbandlike manner in the ordinary coarse of business, and (b) in compliance with all applicable environmental laws, regulations, permits, orders or other requirements. (c) In the event that Mortgagor is in breach of any of its representt;~tions, warranties or covenants as set forth above, Mortgagor,.at its sole expense, shall take all action required, including environmental cleanup of the Property, to cmnpty with the representations, warranties 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 ohligation, to advise appropriate governmental authorities of rely environmental condition on or affecting the Property that constitutes or may constitute a breach of Mortgager's obligations hereunder. (d) Mortgagor and its successors and assigns shall indemnify, defend, protect, and hold harnfiess Mortgagee, its directors, officers, employees, agents, shareholders, successors and assigns and their officers, employees or agents, fi'om and against any and all claims, suits, damages, liens, losses, liabilities, interest, judgmeuts, response and cleanup costs, demands, actions, causes of action, injuries, administrative proceedings and orders, consent agreements and orders, penalties, costs and expenses (including any tees and expenses incurred in ex)forcing this indetnnity, any out-of-pocket litigation costs and the reasonable fees and expenses of counsel) of any kind whatsoever ("Claiins") 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~jury to business, in connection. with or arising out of the activities of Mortgagor on the Property, Mortgager's predecessors in.interest, third parties who have been invited, pemfitted or trespassed on the Property, or parties itt 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 limitation: (i) the presence, use, generation, treatment, storage, disposal, release, threatened release, or discharge of an), ttazardous Material or Contaminant at or from the Property and/or the clemiup of Hazardous Materials or Contaminants within, on or under the Property; (ii) Mortgager's breach of any of the representations, warranties and coveuants contained herein; and (iii) Mortgager's violation or alleged violation of any applicable Environmental Law, regulation or ordinance. (e) Mortgager's representa[ions, 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 Mortgagel the acceptance by Mortgagee of a deed in lieu of lbreclosure, or an3' transl~r or abandonment of the Property. (t) The temi "Environmental Law" shall mean any federal, state or h)cal taw, statute, ordinance, or regulation, now in effect or hereinafter enacted, pertaining to health, industrial bygiefle, or the environmental conditions on, under or about the Property, including but not limited to enactments requiriflg the retnoval or contaimnent of asbestos-containing materials itt private buildings. (g) Mortgagor shall permit, or cause any tenant of Mortgagor to permit, Mortgagee or its agents, or independent contractors to enter and inspect the Property at any reasonable time fbr purposes 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, tnagnitude and spread of any H~ardous Materials or ttazardous Waste that has been spilled, disposed of, discharged or released on, noder or about the Property, or (iii) whether or not Mortgagor and any tenant of Mortgagor is in compliance with applicable Environmental Law. If Mortgagor or its tenants fail to comply fulb, with the terms of this subdivision (g), Mortgagee may obtain affimmtive injunctive relief to compel such complim~ce. 10. Grazing Rights. If any portion of the Property described in this Mortgage is used by Mortgagor as the basis for obtaining grazing permits or other grazing rights issued by any goverumentaI agency, including without limitations the Forest Service, U.S. Department of Agriculture or the Bureau of Lm~d Management, U.S. Department of Interior, Mortgagor covenants and agrees as follows: *ASN 1324 (10-01) Real Estate Mortgage, Fixture F ~g and Security Agreemeat (Page 4 of 6) 'Ca) Said grazing permits or other rights are itl good standing and have not been modifie~, rear/ced or limited in any oth~r respect, except as l'ully disclosed iu xvriting to Mortgagee: Cb) Mortgagor will perform 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; Cc) Mortgagor will take such tinrely action as may be required to cause the rel!¢wal or reissuance of said grazing permits or other rights from time to time as they expire during the term thereof. Mortgagor agrees and acknowledges that th.e failure to renew.or cause the. reissuance of any said pemfits for any reason, whether the result o[ an act or omission of Mortgagor or for reasons beyond Mortgagor's control, is an event of default hereunder and Mortgagee shall have tile right to exercise the rights hereinatler set forth in this Mortgage; and Cd) Mortgagor agrees to pay all fees, charges, rents or other payinents accruing under said pernfits or any renewals thereof prior to delinquency. In the event Mortgagor f~ils to pay any such paymenl, the amount unpaid shall become a part of the indebtedness secured by this Mortgage aad shall be immediately due and payable. B IT IS .MUTUALLY AGREED THAT: 1. Any award of damages ill connection with any taking or condemnation or injury to the Property by reason of public use, or for dmnages resulting ~?otn 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 oll the indebtedness secured hereby. Mortgagor agrees to execute such further documents as may be required to effect tile assiguments hereiu made as Mortgagee may require. 2. At any time without affecting tire liability of any person fol' tile payment of the indebtedness secured hereby, and without otherwise affecting the security hereof, Mortgagee may Ca) consent to or join in the making of any map or plat of the Property; Cb) grant any easement or create any restriction thereof; Cc) subordinate this Mortgage; Cd) extend or modify the term of the loan or loans secured hereby; and Ce) release without warranty, all or ally part of the Property. 3. Prior to any' default by Mortgagor in tile payment, observance, performance aud discharge of any condition, obligation, covenant, or agremnent of Mortgagor contained herein, Mortgagor ~nay, tbr collection and distribution purposes only, collect and receive the Rents as they come due and payable; tile Rents are to be applied by Mortgagor to the payment of the principal and inter, est and all other sums due or payable on any promissory note or guaranty secured by this Mortgage and to tire payment of ail other sums payable under this Mortgage and, thereafter, so long as the aforesaid has occurred, tile balance shall be distributed to the account of Mm~rgagor. Upon any such defanlt, Mortgagee may at any time without notice, either in person, by agent, or by a receiver to be appointed by a cum't, and without regard to the adequacy of any security for tbe indebteduess hereby secured, enter upoa and take possession of the Property or any part thereof, in his own name, sue for or otherwise co!leer such rents, issues and profits, including those past dne and unpaid, and apply the same less costs aud expenses of operation and collection including reasonable attorney's fees; upon any indebtedness secured hereby, anti in such order as Mortgagee may determine; also perform such acts of repair, cultivation, irrigation or protection, as may be necessary or proper to cooserve the value of the Property; also lease the same or any part thereof for such rental, term, and upon such conditions ils its judgment may dictate; also prepare for harvest, remove, and sell any crops that may be growing upon the Property, and apply tile proceeds thereof upon the indebtedness secured hereby. 4. The enteriag upou and taking possession of the Property, tire collection of such rents, issues, and profits, or tile proceeds of fire and other insurance policies, or compensation or awai'ds for aoy taking of or damage to the Property, aud the application or release thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act doue pursuant to such notice. 5. Upon default by Mortgagor in payment of any indebtedness secured hereby or in performance of any agreement hereuuder, all sums secm'ed hereby shall immediately become Glue and payable at the option of tire Mortgagee and in accordance with applicable state law. hr the event of ~tefault, Mortgagee may employ couusel to enforce payment of the obligations secured hereby, may foreclose and, if applicable, sell tile Property by advertisement aud sale, and ill 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 npon the seem'iCy herennder and any other real or persofial property security now tlr hereafter held by Mortgagee for the obligations secured hereby in such order and manner as Mortgagee may, iu its sole discretionl detemfine. Resort to any or all such security may be taken concurrently or successively aud ill 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 nray enforce its security interest in ~he personal property, fixtures aud crops:and its lien under this Mortgage in any manner and itl any order or seqnence permitted by applicable law. All renredies are cumulative aud none are exclnsive; no election by Mortgagee to pursue one rexnedy 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 ally guarantor to pay and perform in full all obligations to Mortgagee. The procedures governing the enforcement by Mortgagee of its foreclosure and provisional remedies against Mortgagor shall be governed by the laws of the state iu which the Property is located. Nothing contained herein shall be construed to provide that the substantive law of the state in which the Property is located shall apply toMortgagee's rights and Mortgagor'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 tbe state in which the promissory note(s) or guaranties were executed. 6. The failm'e on tbe part of the Mortgagee to promptly enforce any right hereunder shall not operate as a waiver of such right and the waiver by Mortgagee of any default shall not constitute a waiver of any other subsequent defaults. Snbsequent acceptance of any *ASN 1324 (10-01) I~,eal Estate Mortgage. Fixture Filing and Security Agreement (Page 5 of 6) payment by the hoE:c~ ~- -:: ~.7 shall not be deemed a waiver of auy default by Mortgagor, or ofMortgagee's rights hereunder as the result of any sale, agree,:, to sell, conveyance, or alienation, regardless of holder's knowledge of such default, sale, agreement to sell, conveyance, or alien: ~: m at the time of acceptance of such pay~nent. 7. This Mortgage applies to, inures to the benefit of, and binds all panics 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 thereo[ In this Mortgage, whenever the context so requires, the masculiue gender inchldes the feminine and/or neuter, aud the singular number includes the plural. All obligations of Mortgagor hereunder are joint aod several. 8. (a) In the event the herein-described Property, or any part thercoI; or any interest therein, is sold, agreed to be sold, conveyed, alienated or transi:rred, including any water transfer as defined in subsection (b) below, by Mortgagor, or by operation of law or otherwise, except by inheritauce, without MmXgagee's prior written consent, all obligations secured hereby, irrespective of the maturity dat[s, at the option of the holder hereof, and without demand or notice, shall immediately become due and payable. Failnre 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 wate'r tranifer is any trausfcr, assignment, sale, exchange, gi2, eocumbrauce, 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 9therwise, or the entry into a binding agree~nent to do any of the foregoing with respect to all or any part of (i) the groundwater on, under, pmnped from or otherwise available to the Property, (ii) Mortgager's right to reJnove 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) auy rights to which the Property is entitled with respect to snrface water, whether such right is appropriative, riparian, prescriptive or otherwise aud whether or not pursuant to.permit or other governmental authorization, or the right to store auy 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 tbe Property by virtue of the Property's being situated within the boundaries of any district, agency, or other govermnental eotity or within the boundaries of any private water company, ~nutual water co~npany or other non-governmental entity, or (v) any shares (or auy rights under such shares) of any private water company, mutual water company, 0r other non-governmental entity pursuant to which ~,lo~gagor or the Propeay may receive any rights. 9. In the event any one or more of the provisions contained in this Mortgage or in any prmnissory note(s) hereby secured shall for any reason be held to be invalid illegal or unenforceable in any respect, su6h invalidity, illegality or uimnforceability :hall not affect any other provision of this Mortgage or said promissory note(s), but this Mortgage and said promissory note(s) shall be coustrued as if such invalid, illegal or unenforceable provision had never been contained herein or therein. BORROWER WAIVES ALL RIGIITS OF IIOMESTEAD EXEMPTION IN TIlE PROPERTY AND RELINQU1SItES ALL RIGHTS OF CURTESY AND DOWER IN THE PROPERTY. Signature(s)5 o:rv Jo :7' ....... Notary Acknowledgment: STATE OF Wyoming ) COUN'ry OF Lincoln ) On this 2 6 day of D~ C. ,20 0 ~, personally appeared befi~re me, the undersigned NoraD' Public in and for said County and State, personally appeared EVAN POPE; DOTFY JO POPE[( ) personally knowu to me] [( ) proved to me on the basis of satishctory evidence] to be the persoa(s) whose name(s) are subscribed to this instrument and acknowledged to me that they executed it. ' ' WlTNES~ my h~m~..offi~l'hI seal { LINCOLN ' ~:~' ~,~0MING , Nott,-y Public in and for said County and State *ASN 1'324 (10-01) Real Estate Morlgage, Fixture Filing and Security Agreemen! (Page 6 of 6) . ';::~F:?:.".. -.. ? :::::.:::.: . . ::::. ".'2._.: .:: - . .-..,.:::.::~: :,:. .. _ :' :-:-:":':::. · ~-.. :::~:::h": ... :': ::/::::: .. .--,--:.-::::;:.: .:..' .:.. ...: .. " 16 Exhibit "A" Township 24 North, Range 11~9 West, 6th P.M., Wyoming Section ]4: Lots 7 and 22 Section 15: S~SE~ Section 21: Resurvey Tract 60 (Described as the NW¼ of section 21 under original survey) Resurvey Tract 53 (Described as the SW¼ of Section 21 under original survey) Resurvey Tract 52 (Described as the W~E½ of Section 21 under original survey) Lots 20 and 39 Section 22: Lots 3 and 4, ,~ovv~-, . . Section 23: Lot 9 Resurvey Tract 6IA; and the. West half of Resurvey Tract 61B TOGETHER WITH 117.5 ACRES OF WATER RIGHT (1909 and 1912 priority date fr6m~Smith Fork Creek) under the covey B canal and 380.9 acres of water right (1894 priority da~e from Smith Fork Creek) under the Mau Canal. Registered with the State of Wyoming Division of Water Resources.