HomeMy WebLinkAbout895191 Recording Requested by:
WHEN RECORDED NIAIL TO:
WESTERN AgCREDIT, FLCA
BOX 95850
SOUTH JOILDAN UT 84095-0850
895191
Loan No. 4200050501
REAL ESTATE 5'IORTGAGE,
FIXTURE FILING AND SECURITY AGREEMENT
TI.lIS MORTGAGE is made this 12th clay of September, 2003 betweeu
RECEIVED
LINCOLN C(hJl~IY CLERK
BOOIi%0t_~_ p'Rp^G}~3,5 7
CALVIN BARNES, also knowu as CALVIN E. BARNES
hereinafter called "Mortgagor", and WESTERN AgCREDIT, FLCA hereinafter called ;'Mortgagee", a corporation, existiug and operating under the
Farm Credit Act of 1971, as amended, having its principal place of busineSs in South Jordan, Utah.
W1TNESSETH: ~mt Mortgagor IRREVOCABLY G~NTS, BARGAINS, SEI.LS, CONVEYS AND ASSIGNS unto Mortgagee mgefl~er wilh right
of entry and i)ossession the following described real proper~ situated in the County of bincoln, State of~yomi~:
FOR DESCRIPTION OF REAL PROPERTY SEE EX}IIBIT "A" ATTACItED HERETO AND MADE A PART IIEREOF
TOGETHER WITH: all buildings, slructures, equipment, fixtures (including trees, vines and shrubs) and improvements of every kind and description
now or hereafter constructed or placed thereon; all standing timber and timber Io be cut located thereon; all existing and fulure water rights, however
evidenced, inclnding irrigation and watering equipment and systems, ditches, laterals, conduits, and righls-of-way used to convey such water or to
drain the above-described p~oPerty, all of which rights are hereby made appumeuant to the properly, and all pumping plains, electrical generators,
wind macliines, and fencing and sto~age tanks, now or hereafter used in connection with the prope~y, all of which are hereby declared to be fixtures;
all existing and fi~ture grazing rights, leases, permits and licenses; all oil, gas, and mineral leases, permits and rights used wilh the property; all
tenements, hereditaments, easements, ~ights-of-way and appurtenances to the property; and all right, title, and interest at any time of Moflgagor (or any
of its bailees, agents, or iostrumentalities)~ whether now existing or herealler arising or acquired, whether direct or iudirecl, whelhe~ owned legally, of
record, equitably or beneficially, whether constitutiog real or personal property (or subject to any other characterizalions), whefl~er created or
authorized under existiug or fiflure laws or regulations, and however arising in, including wilhout limitalion, the water, waler rights and other assets
and items described be}ow in subparagraphs Ca) through Ch) which shall collectively be called "Water Assets" (hereafter collectively referred to as the
"Propell/'). 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 xvhatever rights to money, proceeds, property or other benefits are exchanged or received for or on account
0f any Water Assets or any conservation or other nonuse of water, including whafever rights are achieved by depositing one's shares of any Water
Assets in any waler bank or with any water authority, or any other water teallocalioo rights:
a. All water (including any water inventory in storage), xvater rights and entillements, oilier rights to water attd other rights to receive water or
water rights of every kind o~ nature whatsoever including (i) the groundwater on, under, pumped from or olherwise available to the Property, whether
as the resnlt of groundwater rights, contractual rights or othe~xvise, (ii) Mortgagor's right to remove and extract any such groundwater including any
permits, rights or licenses granted by any governmental authority or agency or any rights granted or created by any use, easements, covenant,
agreement or contract with any person or entity, (iii) auy rights to which the Property is entitled with respect to surface water, whether such right is
appropriative, riparian, p,'escriptive, decreed or otherwise and whether or not purst,ant to permit or other governmental at,thorization, or the right to
store any st,ch water, (iv) any water, water right, water allocation, distribution right, delivery right, water slorage 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 xvith any and ali rights from auy
eh'city or other person to acquire, receive, exchange, sell, lease, or othenvise transfer any water or other Water Assets, Io store, deposit or othe,xvise
create water crcdils in a water bank or similar or other arrangement Ibr allocating water, lo 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 appropriale any water or other Water Assets, water bank or
other credits evidencing any right to water or other Water Assets, to store, cany, transport or deliver water or other Water Assets, to sell, lease,
exchange, or olhe,wvise transfer auy water or odin, 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 Ihe purpose of the use Of any water or Waler Asset;
d. All rights, claims, causes of action, judgments, awards, and other judicial, arbiter or adnriuistrative relief in any xvay relaling to auy water or
VVater Asset;
*ASN 1324 (10-01) V, ealEstateNlortgage, Fixture Filing and Security Agreemeat ' ' (Page I of 6)
e. All storage and treatment rights for any water or any oflmr Water Assei, whether on or off the Property or oflmr property of Mortgagor, togefl~er
wifl~ all storage tanks, and other equipment used or usable in connection with such storage and ahy water bank deposit credits, deposit accouuts 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 trausport, carry, allocate or other,vise 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, olber water related
contracts and water reallocation rights, all insurance policies regarding or relating to any Water Asset;
b. All rents, issues, profils, proceeds and other acconnts, 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, trausfer or other disposition of any Water Assel.
Absolote Assignment of All Revenue From Water Assets - Mortgagor hereby absolutely and unconditionally assigns to Mortgagee all proceeds,
rents, issues and profits flora any use (apart from watering plants on the Property or olber ordinary use on the Property), nonuse, sale, lease, transfer
or disposition of a,~y 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 tile right, before or
after tile occurrence of any default or event of default, to notify any acconnt deblor to pay all amounts owing with respect Io Ihose proceeds, reuts,
issues and p~ofits 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 lvlorlgagee in any order, priority or manner desired by Mortgagee.
MORTGAGOR ABSOLUTELY AND UNCONDITIONALLY ASSIGNS, transfers, conveys and sets over to Mortgagee all the reuts, royalties,
issues, profits, revenue, income and other benefits of the property arising fi-om the use or enjoyment of all or any portion tbereof or fi'om any lease,
nfineral lease, or agreement pertaining thereto.(collectively the "Rents"); SUBJECT, ttOWEVER, to the right, power and authority given to and
conferred npon Mortgagor by ParagTaph B.3 hereof.
PERSONAL PROPERTY SECURITY AGREEMENT - All of the Property will be considered to the fullest extent of the law in be
real property for ptnl:)oses 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. Modgagor does hereby create and grant to Mortgagee a security interest in all such personal property described
herein; and fire!mr, grauts to Motlgagee all of the rights and remedies of a secured pmly nnder the Uniform Conmmrcial Code and
other applicable state law, which rights are cunmlative.
FIXTURE FILING - This Mortgage shall also be deemed to be a fixture filing under the Unifornl Conunercial Code and is to be
recorded in the county real estate records.
FOR TIlE PIJRPOSE OF SECURING: (1) payment of the indebtedness or obligations evidenced by the following promissory note(s) and/or
guaran6es executed by Mortgagor and/or otbers to the Mortgagee at tile times, m the manner and with interest as therein set forth (notes may contain
variable or adjustable rate provisions):
Daled Maturity Face Amount Dated Maturity Face Amount
(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 Mo~lgagor, 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 evidenced by any guaranties executed by lvlortgago~ in favor of Mortgagee; PROVIDED HOWEVER, THAT,
such additional loaus advances guaranty obligations shall be secured by this Mortgage 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) tile payment of any sobstitute 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 m any loan document or gnaranly executed by Mortgagor in tCavor of
IVlortgagee, with 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 tile terms of this Mortgage, together with mteresl thereon as herein provided. The continuing validity and priority of
this Mm~gage as security for future loans, advances, or guaranties shall not be impaired by file fact that at certain times hereafter there may exist'no
outstanding indebtedness flora Mortgagor to Mortgagee or no commitment to make loans or advances. ' ..... ~
A. TO PROTECT TIlE SECURITY OF THIS MORTGAGE, MORTGAGOR AGP, EES:
1. To use loan proceeds solely lbr the purposes set forth in the loan application(s) or agreements; to comply with the Farm Credit Act of
1971, as amended, and/or the regulations of tile Farm Credit Administration, now existing or as hereafter amended.
2. To keep the Property in good condition, working order and repair; care for tile Property in accordance with standards of good husbandry
and to keep all trees, vines and crops on said land properly coltivated, 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 horticnllural ar viticultural tree, vine or shrnb planted thereon without tim prior wlitten consent of Mortgagee, except in the
ordinary course of business; to coral)Icrc or restore proml)tly and in good and workmanlike manner any building which may be
*ASN 1324 (10 ,ii .. ._.!. stale Mortgage, Fixlure riling and Security Agreeme~:.:~?.;:;:~[:;'. ~.Page 2 of 6)
constructed, damaged or destroyed tl~ereon; to comply with all laws, covenants and restrictions affecting the Property; not to commit or
pernli! waste thereof; not to commit, snffer or permit any act upon the Property itl violation of law; to do all other acts which flora the
character or use of the Property may be reasonably necessary, the specific enumerations herein not excluding the general; to observe and
perform all obligations of Mortgagor under any lease of the Property.
To p, ovide, maintain and deliver to Morlgagee fire and all other types of insurance of tire type and in amounts as Mortgagee may require,
with loss payable clauses solely in favor of Mortgagee. In the event of loss, the insurance proceeds, or any part lhereof, 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 tbe event that the Mortgagor shall fail to provide satisfactory hazard insnrance, /vlmtgagee may procure, on Morlgagor's behalf,
insurance m favor of Mortgagee alone. If insurance cannot be secured by. Mortgagor io provide the required coverage, such inability
shall constitute an event of default herennder.
4. To apl)ear in and litigate any action or proceeding puq)orting to affect the security hereof, the title to the Property, or the rights or powers
of Mortgagee; Mortgagee may appear in and litigale any such action or proceedings, including any bankruptcy, partition or
condemnation proceeding, affecting the Property, or Mortgagee's interest therein, in which event Mollgagor agrees to pay all costs and
expenses thereof, including attorney's fees and costs of secnrmg evidence of title.
5. To pay 0n or before the due date all taxes and assessments affecting the Property, including all assessments opon water company stock
and all renls, assessments and charges for water, appurtenanl to or used in connection with the Property; to pay, when due, all
eocumbrances, chmges, and liens, on the Property or any part thereof, which at anytime appear to be prior or superior hereto.
6. In case of any suil 1o foreclose this Mortgage or to collect any charge arising out of the debt hereby secmed, or of any suil which tbe
lvlortgagee may deem necessary to prosecute or defend to effect or protect the lien herein, including any proceeding m bankluptcy, or if
lvlortgagee retains an attorney to advise lvlortgagee in connection with this Mortgage or any other agreement related to the indebtedness
secured by this Mortgage, Morlgagor agrees to pay a reasonable sum as attorney's fees and .al/ costs and legal expenses in connection
with said shit, and further agrees to pay the reasonable costs of searching the records and abstracting or insuring the fille, and such stnns,
costs and expenses shall be secured hereby and shall be included in any decree of foreclosure. The fees and costs described berein and
elsewhere m this iVlortgage shall be in addifion to those set forth in the loan agreement or any olher written agreement between
lVlortgagor and Mortgagee.
Shoold Mortgagor fail to make any pay~nent or to do any act as provided for in this Mortgage, tbeu Mortgagee, but without obligation to
do so and without notice to or demand npon Mortgagor and withont releasing Mortgagor from any obligation hereof, may: make or do
the same in snch manner and to such extent as either may deem necessary to protect the Property, lvlortgagee being aothorized to enter
upon tile Property for such purposes; commence, appear m and litigate any action or proceeding purporting to affect tile security hereof
or the rights or powers of lvlortgagei~, including any bankrnptcy 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 st,perior hereto; and m exercising any such
powers, incur any liability, expend whatever amounts in its absolnte discretion it may deem necessary therefore, including attorney's,
accountant's, and appraisal fees, environmental fees, and costs of securing evidence of titlel and all amounls so expended shall be
obligations of Mortgagor secnred by this Mortgage. Nothing contained herein shall prohibit Mortgagee from entering the Property, at a
reasonable time and npon reasonable notice to Mortgagor, withou! incurring or assuming any obligations or liabilities whatsoever, for the
sole purpose of inspecting the Property.
To pay immediately and xvithout demand all sums expended by Mortgagee pursuant to lite provisions hereof, with inlerest from date of
expenditure at the same rate as is provided for io the note or notes secured by this Mortgage. In the event tidal such sums are not
immediately paid, they shall be added, along with the appropriale 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 secnred hereby.
9. Environmental Representations, Warranties and Covenants.
(al Except as disclosed in Writing to /Vlortgagee, or except as other~vise provided in any loan agreement bev. veen Mortgagee and
Mortgagor wliich specifically refers to the Property, to the best 'htowledge of Mortgagor after due inquiry, Mortgagor hereby further
represents, warrants and covenants as folloxvs:
(il No pollutants, contaminants 0ncluding oil or other petroleu,n products), toxic or hazardous substances, or solid or hazardons
wastes, as such lerms are defined under any federal, state or local Environmental Law, regulation or ordinance (hereinafter
"Contaminants") have been, are being or will be generated, mannfactured, produced, stored, disposed of, discharged, released
threatened to be released, or otherxvise allowed to nfigrate or escape oil, under or flora the Property in such quantities or
concentrations as would violate any federal, state or local Environmental Law, regulation or ordinance or as woold reqnire
Mortgagor to report such condition to any governmental authority or to undertake removal or remedial action to clean tip snch
contaminants;
(ii) No Contaminants are Iocaled on, m or nnder any property Iocaled adjacent to the Property in such quantities or concentrations
as would constitute a violation of any Environmental Laxv or as xvould reqnire the owner of Ihe 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 any adjacent proper ty or portion thereof, has been or is proposed to be listed
under the Comprehensive Environmental Response, Compensalion and Liability Act (42 U.S.C. Section 9601, et seq.), or arty
analogous state la~v. Mortgagor shall immediately notify Mortgagee if Mortgagor acquires any reformation concerning the listing
*ASN 1324 (10 01) Real Estate Mmtgage, Fixture Filing and Security Agreement (Page 3 9!'6)
or proposed listing of the Property or any adjacent property and shall provide Mortgagee with any documents m Mortgagor's
possession relative thereto;
(iv) No hazardous wastes, as defined under the 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 surface impoundments or
other structures or lhcilities located on the Property that are partially Or entirely below tile ground surface;
(v) No litigaiion, investigation, 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 Mmtgagor thleatened against or
anticipated by Mortgagor, with respect to Mortgagor's use or management of Hazardous Materials or Hazardous \Vaslcs 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 underg,'ound tanks, wells (except domestic water wells), septic tanks, ponds,
pits or any olher storage tanks ("Tanks") (whether currently in use or abandoned) are or were located on or t, nder the Property and
no Tanks me or were serving tile Property described herein. With respect to any Tanks disclosed in wliting to Mortgagee,
Mmtgagor shall comply with all federal, state and local laws, regulations and ordinances mrd any requirements of city or county fire
departments, applicable ~o the maintenance and use of such Tanks, including, without lmritation, Title 40 of tl~e Code of Federal
Regulations Part 112.
(b) Nothing herein shall be deemed to prohibit Mortgagor from (i) osmg, 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 trealing non-hazardous
wastes, so long as suclr activities are carried out (a) m a good and husbanfltike manner in the ordinary course of business, and (b) m
compliance with all applicable environmental laws, regulations, pemfits, orders or other lecluirements.
(c) In tile event that Mortgagor is m breach of ally of its representations, warranties or covenants as set forth above, Mortgagor, at its sole
expense, shall take all actiou required, including environmental cleanup of lhe Property, to comply with Ihe representations, warranties
and covenants herein or applicable legal requirements and, in any event, shah 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 hmeunder.
(d) Mortgagor and its su/zcessors and assigns shall indemnify, defend, protect, and hold harmless Mortgagee, ils directors, officers,
employees, agents, shareholders, successors and assigns and their officers, employees or: agents, dom and against any and all claims, suits,
idamages, liens, losses, liabilities, interest, jndgments, response and cleanup costs, delrrands, actions, causes of action, injuries,
administrative proceedings and orders, consent agreemeots and orders, penalties, costs and expenses (including any fees and expenses
incurred in enforcing this indelnnity, any out-of-pocket litigation costs and the reasonable fees and expenses of counsel) of any kind
whatsoever CClam~s") paid, incun'ed or suffered by, or asserted against Mortgagee, including bnt not limited to Claims mising 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 m interest, third parties who have been
invited, permitted or trespassed on the Property, or parties in a contractual relatiooship 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 Moltgagor 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 Coman,nant at or from the Property and/or the cleaoup of Ilazardous Materials or
Contaminants within, on or under tile Property; (ii) Mortgagor's breach of any of tile representations, warranties and covenants contained
berem; and (iii) Mortgagor's violation or alleged violation ofaoy applicable Environmental Law, regulatimr or ordinance.
(e) Mortgagor's represenlations, warranties, covenants and indemnities contained herein shall snrvive tile occurrence of any event
whatsoever, including without limitation the payoff of any promissory note(s) secured hereby, the release or foreclosure of this Mortgage,'
tile acceptance by Mortgagee of a deed in lieu of foreclosure, or any transfer or abandomnenl of the Property.
(f) The term "Environnlental Law" shall mean any federal, state or local law, statute, ordinance, or regulation, now in effecl or hereilrafter
enacted, pertaining to health, industrial hygiene, or the environmental conditions on, under or about the Property, iucludiirg but not
limited to enactments requiring the removal or containment of asbeslos-containing materials in private buildings.
(g) Mortgagor shall permit, or cause any tenant of Mortgagor to peanit, Mortgagee or its agents, or independent contraclors to eoter and
respect the Property at any reasonable time for purposes of determining, as Mortgagee deems necessary or desirable: (i) tile existence,
location and oature of any Hazardous Materials or llazardous Wasles on, under or aboul the Property, (ii) tile existence, location, nature,
magnitude and spread of any Ilazardons Materials or Hazarduus Waste that has been spilled, disposed o[ discharged or released on,
under or about the Property~ or (iii) whether or not Mortgagor and aoy tenaot of Mortgagor is in compliance with applicable
Environmeutal Law. If Mortgagor or its tenants fail to comply dally with the temrs of this subdivision (g), Mortgagee may obtain
affirmative injunctive relief to compel such compliance.
10.
Grazing Rights. If any portion of the Property described in this Mortgage is used by lVlortgagor tis the basis for obtaining grazing permits
or other grazing rights issued by any govermnemal agency, inclnding wilhout limitations tile Forest Service, U.S. Depamnent of
Agriculture or the Bm-eau of Land Management, U.S. Department of Interior, Mortgagor covenants and agrees as follows:
*ASN 1324 (1( ........ state iMortgage, Fixlu,e Filing and Secu,'ity Agree,,,i,~':51~ ' ..0'~i~e'4 of 6)
(a) Said grazing permits or other rights are in good standing and have not been modified, reduced or limiled m auy other'respecl, except
as fully disclosed in writing to Mortgagee:
(b) Mortgagor will perform all obligations imposed as a requirement of exercise of said grazing permits or oIlier rights and Will cmnply
with all laws, roles and regulalions applicable thereto;
(c) Mortgagor will take sucli timely action as may be required to cause the renewal or reissuance of said grazing permits or olher rights
flora time to time as they expire during tile tern~ thereof. Mortgagor agrees and acknowledges thai tile failure to renew or cause the
reissuance of ally said permits for any reason, whether tile result of an act or omission of Mortgagor or for reasons beyond Mortgagor's
control, is an event of default hereuoder and lvlortgagee shall have lhe right to exercise tile righls hereinafter set forth ill ihis lVlortgage;
and
(d) Mortgagor agrees to pay all fees, charges, rents or other paymenls accruing under said permits or any renewals lhereof prior to
delinquency. In Ihe event lVlortgagor fails to pay any such payment, the amount unpaid shall become a prat of tile indebtedness secured
by this Mortgage and shall be immediately due and payable.
IT IS MUTUALLY AGREED THAT:
Any axvard of damages in connection with any taking or coodemnation or it0ury to the Property by reason of public use, or for damages
resulting from private trespass or injury to tile Property, is absolutely and unconditionally assigned and shall be paid to Mortgagee, under
the ternls and conditions of this Mortgage pertaining to Rents. Upon receipt of such money Mortgagee may apply the same on tile
indebtedness secured hereby. Mortgagor agrees to execute such further docunrents as may be required lo effect the assignments herein
made as Mortgagee may require.
At any time, without affecting {he liability of any person fol- tile payment of the indebtedness secured hereby, and without othem, ise
affecting the security hereof, Mortgagee may (a) consent to or join ill tile nraking of any map or plat of thc lhoperty; (b) grant any
easement or create ally restriction thereof; (c)st, bordinate this Mortgage; (d) extend or nrodify the term of thc loan or loans secmed
hereby; and (e) release without warranty, all or any part of the P~operty.
Prior to any default by Mortgagor in tile pa)anent, observance, perfom~ance and discharge of any condition, obligation, covenant, or
agreement of Mortgagor contained herein, Mortgagor may, tbr collection and distribution purposes only, collect and receive the Rems as
they'come due and payable; the Rents are to be applied by Mortgagor lo tile payment of the principal and interest and all other stnns due
or payable on any promissory note or guaranty secured by this Mortgage aud to the payment of all other sums payable under this
IVlortgage and, thereafter, so long as the aforesaid has occurred, tile bahmce shall be distributed to the account of Mortgagor. Upon any
such default, Mortgagee may at any time without notice, either in person, by agent, or by a receiver to tie appointed by a Conrt, and
without regard to the adequacy of any security lbr the irrdebtedoess hereby secured, enter upon and take possession of the Property or auy
part thereof, in his own name, sue for or otherwise collect such rents, issues and profits, inch~dmg those pasl due and unpaid, anti apply
tile same, less costs and expenses of operation and collection, including reasonable attorney's fees, upon any indebtedness scented
hereby, and in such order as Mortgagee may determine; also perfoml such acts of repair, cnllivation, irrigation or protection, as may be
necessary or proper to conserve the value of the Propelty; also lease tile same or any part thereof for such rental, term, and upon such
conditions as ils judgment may dictate; also prepare for harvest, remove, and sell ally crops that may be growing upon the Property, and
apply the proceeds thereof upon tile indebtedness secured hereby.
The entering upon and taking possession of the Property, tile collection of such rents, issues, and profits, or the proceeds of fire and other
insurance policies, or conrpensation or awards for any taking of or damage to tile Property, and the applicalion or release thereof as
aforesaid, shall not cure or waive any defaull or notice ofdefault hereunder or invalidate ally act done pursuant to such notice.
Upon default by Mortgagor in payment of any indebtedness secured hereby or in performance of any agreement hereunder, all snms
secured hereby shall immediately become doe and payable at tile option of tile Mortgagee and in accordance with applicable state law. In
the event of default, Mortgagee may employ counsel to enforce payment of the obligations secured hereby, may foreclose and, if
applicable, sell the Pioperty by advertisement and sale, and in accordance with oiher 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 anti realize upon tile security hereunder and any other real or personal property security now or hei-eafler held by Mortgagee for the
obligalions secured hereby in such order and manner as Mortgagee may, m its sole discretion, determine. Resort to any or all such
security may be taken concurrently or soccessively and itl one or several consolidated or independent jndicial actions or lawful
oonjudicial proceedings, or both. If the obligation secured by this Mortgage is also secured by personal property, fixtures or crops,
IVlortgagee may enforce its security interest ill the personal property, fixtures and crops and its lien onder this Mortgage in any manner
and in any ruder or sequende pernfitted by applicable law. All remedies are cunmlative aud none are exclusive; no electiou 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 tile liability of Mortgagor or any guarantor to pay and perfom~ in full all obligations to Mortgagee. The procedures
governing tile enforcement by Mortgagee of its foreclosure and provisional remedies against Mortgagor shall be governed by lhe laws of
the state in xvbich the Property is located. Nothing contained herein shall be construed to provide lhat tile substanlive law of Ibc state in
which tile Property is located shall apply to Mortgagee's rights and Mortgagor's obligations hereunder or under the promissory note(s) or
guaranties described hereto, which are and shall continue to be governed by the substantive law of tile state in which tile plomissory
note(s) or guaranties were executed.
The failure on tile part of the lVlortgagee to promptly enforce any right hereunder shall not operate as a waiver of such right aud the
waiver by IVlmtgagee of any default shall not constilute a waiver of any other subsequent defaults. Subsequent acceptance of ally
*ASN 1324 (I 0 01) Real Estate Mortgage, Fixture Filing and Securily Ag, cement "o, (llage 5 of 6)
payment by the holder hereof'shall not be deemed a Waiver o[any de£aull by Mortgagor, or of Mortgagee's rights bereunde, as the result
o£ any sale, ag, eement to sell, conveyance, or alienation, regardless of holder's knowledge o£ such default, sale, agreernenl to sell,
conveyance, or alienation at the time of acceptance, of such payment.
Tins Mortgage applies to, iht,res to the benefit of, and brads all parties hereto, tbeir heirs, legatees, devisees, administrators, executors,
successors and assigns, Tile term Mortgagee shall mean the holder and owner of any hole secured hereby; m, if the note has been
pledged, tile pledgee tbereof In ibis Mortgage, whenever tile context so requires, tile masculine gender includes tile fen, nme and/or
neuter, and tile singular number, includes the plural. All obligations of Mortgagor hereunder are joint and seveial.
(a) In the event the herein-described Property, or any parl thereof, or any interest therein, is sold, agreed to be sold, conveyed, alieoated or
transfe,Ted, including any water transfer as defined in subsection (b) below, by Mortgagor, or:by operation of law or othenvise, except by
inheritance, without Mortgagee*s prior whiten consent, all obligations secured hereby, i~Tespective of tile malurity dates, at tile option of
the holder hereof, and without demand or notice, sball immediately become due and payable. Failure to exe,cise such option sball not
constitute a waiver oftbe right to exercise this option in the event of subsequent sale, agreement to sell, conveyance or alienation.
(b) A water transfel is any transfer, assignment, sale, exchange, gift, encumbrance, pledge, hypothecation, alienation, grant of option to
purchase, or other disposition of, directly, indirectly or itl trust, voluntarily or involuntarily, by operation of law or otherwise, or the entry
into a binding agreement to do any of tile foregoing with respect to all or any part of (i) the groundwater on, under, pumped from or
othe,wise available to the Property, (ii) Mortgagor's right to remove and extract any such groundwater including any permits, rights or
licenses granted by any govermnental aulhority or agency and any rights granled or created by any easement, covenant, agreement or
conlract with any person or entity, (iii) any rights to which lhe Property is entitled with respect to surface waler, whether such rigbl is
approprialive, riparian, prescriptive or otherwise and whether or not pursuant to permit or other governmental aufllorizalion, or Ihe right
to slore any such water, (iv) any water, water right, water allocation, distribution right, delivesy right, water storage right, water allocation,
or other water-related entitlement appurtenant or otherwise applicable 1o lhe Properly by virtue of Ibc Properiy's being situated within lhe
boundaries of any district, agency, or other governmental entity or within tile 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 compmly, mutual
water company, or other non-governmental entity pmsuant to which Ivlortgagor or lhe Property may receive any rights.
In the event any one or more o,}' 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 unenforceabilily shall not affect any other
provision of Ibis Mortgage or said p'o n ssory note(s), but this Mortgage and said promissory note(s) shall be conslrued as if such invalid,
illegal or unenforceable provision bad never been contained herein or therein.
I0. Borrower releases and waives all rights nnder and by virtue of the homestead exemption laws of Wyoming
11.
Bon-ower further agrees that tile load(s) secured by this instrument will be in default should any loan proceeds be used for a propose that
will contribute to the excessive erosion of highly erodible land or lo the conversion of wetland to produce or to make possible the
production of an agricultural commodity, as further explained in 7 CFR Part 1940, Subpart G, Exhibit M.
IN BARNEST'~I qsx(~ as CALVIN E. BARNES
Notary Aclmowledgqnent:
COUNTY OF -0---- )
")& day o,- OcU lar'-
appeared .~IN BAR~ as CALVIN E. BA~ES [( ) personally knox~ to me] [( ) proved Io me on the basis of salisl:aclo~ evidenceI Io be Ihe
person(s) whose name(s) is subscribed lo this instrument and acknowledged lo mc that he executed it.
~]~-LI~'Y $,~0~ · NO~ff PUSUC
WITNES~n,y ~aod and official seal
nty and Sta,e
Hy CommJ_ss-lon Exp±res: February 2, 2006
*ASN 1324 (10;.: ,_.27 "~state Mortgage Fixture Filing and SecretD, Agreemt_..:/~:, :',:.:,'
(Pagt~ 6 of 6)
EXHIBIT A
T24N Rll4W of the 6th P.M., Lincoln County, Wyoming
Section 2: Lots 16, 17 and 18;
Section 3: Lots 12, 13, 14 and 18;
Part of Tract 49 being more particularly described as follows:
BEGINNING at Corner No. 4, .thence South 20.86 chains to Corner No. 3;
thence S 89018' E, 20.06 chains to Corner No. 2;
thence North, 41.68 chains to Corner No. 1;
thence N 89o19, W, 20.055 chains to ~ point;
thence S 0°11' E, 20.88 chains to Corner No. 4, the POINT OF BEGINNING.
Part of Tract 50 bezng more particularly described as follows:
BEGINNING at Corner No. 1, thence South 20.85 chains to Corner No. 2;
thence N 89°19' W, 20 055 chains to a point;
thence North, 20.85 chains to a point which is identical with Corner No.
2 of Tract 55;
thence S 89020' E, 20.06 chains to corner No. 1, the 'POINT OF BEGINNING.
Trace 46A, Tract 46B, TraCt 43, Tract 48, Tract 45, Tracts 44A, 44B, 44C
and 44D; :
EXCEPTING the land described in Warranty Deed recorded April 8, 1969 in
Book 86PR on page 285 of the records of the Lincoln County Clerk.
T25N RlltW of the 6th P.M., Lincoln County, Wyoming
Section 20: SE~;
Section 21: W~SW~;
Section 28: W~NW~, NW~SE~, S~SE~, N~SW~;
Section 29: NE~, NE~SE~, NW~SE~, SE~SE~, SW~SE~;
Section 33: E~NE~;
Section 34: SW~iNW~, NW~SW~;
EXCEPTING the land described in Warranty Deed recorded July 8, 1953~ in
Book 3PR on page 176 of the records of the Lincoln County Clerk.
EXCEPTING that part of the E~ of Section 29, T25N RlltW of the 6th P.M.,
Lincoln County, Wyoming, West of the West right-of/way fence along the
public road, more or less, and further described as follows:
BEGINNING at the South Quarter corner of said Section 29, N 0002, W,
3378.41 feet, at which point intersecus the West right-of-way fence along
the public road;
thence S 16~41' E, 1071.40 feet,
thence S 28°04' E, 707.11 feet;
thence S 33°34' E, 787.10 feet;
thence S 06°48' E, 1079.32 feet, to a point where the West right-of-way
fence along the public road intersects the South section line of
said Section 29;
thence N 89057' W, 1207.2 feet to, the POINT OF BEGINNING.
1 OF 2
564
TOGETHER with the right to the following described water registered with tim State of Wyoming
Department of Water Resources:
Territorial Water Right in Fontenelle Creek for 40 un/ts with a flow of .57 cfs and a Priority Date of 1879
Territorial Water Right in Fontenelle Creek for 80 units with a flow of 1.14 cfs and a Priority Dale of 1879
Ten-itorial Water Right in Fontenelle Creek for 80 umts with a flow of 1.14 cfs and a Priority Date of 1886
Tetq-itorial Water Right in Fontenelle Creek for 100 units with a flow of 1.,12 cfs and a Priority date of 1890
Permit #P1815D in Fontenelle Creek for 69 milts with a flow of .98 cfs and a Priority date of 1898
Pem~it #P608E in F0ntenelle Creek for 26.8 units with a flow of .37 cfs and a Priority date of 1900
Permit #P608E in Fontenelle Creek for 195 units with a flow of 2.78 ct's and a Priority date of 1900
Penmt #P1706E in Fontenelle Creek for 23 units with a flow of.32 cfs and a Priority date of 1907
Permit/:/P4437E in Fontenelle Creek for 29.2 milts with a flow of .31 cfs and a Priority date of 1925
Pemait #P4438E in Fontenelle Creek tbr 12.4 units with a flow of 17 cfs and a Priority Date of 1925
2 .OF :2