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HomeMy WebLinkAbout898106WHEN RECORDED MAIL TO: Western AgCri~dit, PCA P.O. BbX 9'5850 South Jordan, Utah 84095~0850 Customer No. 0007000602 Boo : 891 RECEIVED I LINCOLN COUNTY CI_ERK 'ogo Oe FIXTURE FILING AND SECURITY AGRE~'ME~" ' '~' , 5 THIS MORTGAGE is made this 23rd day of March, 2004 between FAE HOLDINGS 040303R, L.L.C., a Utah Limited Liability Company hereinafter called "Mortgagor", and WESTERN AgCREDIT, PCA hereinafter called "Mortgagee", a corporation, existing and operating under the Farm Credit Act of 1971, as amended, having its principal place of business in South Jordan, Utah. WITNESSETH:' That Mortgagor IRREVOCABLY GRANTS, BARGAINS, SELLS, CONVEYS AND ASSIGNS unto Mortgagee together with right of entry and possession the following described real property situated in the County of LINCOLN, State of WYOMING: FOR DESCRIPTION OF REAL PROPERTY SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF TOGETHER WITH: all buildings, structures, equipment, fixtures (including trees, vines and shrubs) and improvements of every kind and description now or hereafter constructed or placed thereon; all standing timber and timber to be cut located thereon; all existing and tim, re water rights, however evidenced, including irrigation and watering equipment and systems, ditches, laterals, conduits, and rights-or: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 tnachines, aud fencing and storage tanks, now or hereafter used in connection with the property, all of which are hereby declared to be fixtores; all existing and futore grazing rights, leases, permits and licenses; all oil, gas, and mineral leases, permits and rights used with the property; all tenements, hereditaments, easements, rights-of-way and appurtenances to the property; and all right, title, and interest at any time of Mortgagor (or any of its bailees, agents, or instrumentalities), whether now existing or hereafter arising or acquire(d, whether direct or indirect, whether owned legally, of record, equitably or beneficially, whether constitutiug real or personal property (or subject 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 in the broadest and most comprehensive sense of tile term(S). The term "water" inclndes water rights and right to water 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, inchlding 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 (inclnding any water inventory ill storage), water rights aod 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, uoder, 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 including any permits, rights or licenses granted by any governmental authority or agency or any rights granted or created by any nsc, easements, covenant, agreement or contract with any person or eutity, (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 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 from any entity or other person to acquire, receive, exchange, sell, lease, or otherwise trmlsfer an)' water or other Water Assets, to store, deposit or otherwise create water credits in a water bank or similar or other arrangement for allocating water, to transport or deliver water, or otherwise to deal with any Water Asset; c. All licenses, permits, approvals, contracts decrees, rights and interest to acquire or appropriate 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 purpose of the use of any water or Water Asset; d. All rights, claims, causes of action, judgments, awards, and other judicial, arbiter or adtninistrative relief in any way relating to an), water or Water Asset; e. All storage and treatment rights for an), 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 nsable in connection with such storage and any water bank deposit credits, deposit accounts or other rights arising on account of the storage or nonuse of any water or any water or any other Water Asset; f. All rights to transport, carry, allocate or otherwise deliver water or other B ater Assets by any means wherever located; (10-01) Real Estate Mortgage, Fixture Filing and Security Agreement (Page I o1'6) g. All guaranties, warranties, marketing, management or service contracts, indemnity a~gr.qements, and xvater right agreements, other water related contracts and water reallocation rights, all insurance policies regarding or relating to any ~9dter Asset; , h. All rents, issues, profits, proceeds and other accouats, instrumeats, chattel paper, contract rights, general intangibles, deposit accounts, hnd other rights to pay~nent arisiog from or on account of any use, nonuse, sale, lease, transfer or other disposition of any Water Asset. Absolute Assignment of All Revenue From Water Assets - Mortgagor hereby absolutely and unconditionally assigns to Mortgagee all proceeds, rents, issues and profits from any use (apart from watering plants on the Property or other ordinary use on the Property), nonnse, sale, iease~ 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 antomatically without appointment of a receiver or Mortgagee becoming a mortgagee in possession and Mortgagee sball have the right, before or after the occurrence 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 auy 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 from any lease, mineral lease, or agreement pertaining thereto (collectively the "Rents"); SUBJECT, HOWEVER, to the right, poxver and authority given to and Conferred upon Mortgagor by ParagraphB.3 hereof. PERSONAL PROPERTY SECURITY AGREEMENT - All of the Property will be considered to the fullest extent of the law to be real property for purposes of this Mortgage. To the extent that any of the Property, (including without limitation any Water Assets or fixtures), is deemed to constitute, is adjudicated to be, or declared to'be personal property, this Mortgage shall also be deemed to be a security agreement. Mortgagor does hereby create and grant to Mortgagee a security, interest in 'all such personal property described herein; and 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 cumnlative. FLX~TURE FILING - Tbis Mortgage shall also be deemed to be a fixture filing under the Uniform Cotnmercial Code and is to be recorded in the county real estate records. FOR THE PURPOSE OF SECURING: (I) payment of the indebtedness or obligations evidenced by the following promissory note(s) and/or guaranties executed by Mortgagor and/or others to the Mortgagee at the times, in the manner and with interest as therein set forth (notes may contain variable or adjustable rate provisions): Dated Maturity Face Amount Dated Maturity Face Amoont MARCH 23~ 2004 JANUARY 1, 2005 I$1~500,000.00 (2) The payment of such additional loans or advances, including advances onder a revolving line of credit, with interest thereon, as hereafter may be made to Mortgagor, or Mortgagor's snccessors 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 Mortgagor in favor of Mortgagee; PROVIDED HOWEVER, THAT, such additional loans advances guaranty obligations shall be secured by this Mortgage only if the promissory note, guaranty, or other document evidencing such Ioaus or advances shall recite that it is to be secured by tlris Mortgage; (3) the payment of any substitute notes, renewals, reamortizations, and extensions of all indebtedness secured by this Mortgage; (4) the performance of ever), 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, 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 the terms of this Mortgage, together with interest thereoa as herein provided. The continuing validity and priority of this Mortgage as security for 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 PROTECT THE SECURITY OF THIS MORTGAGE, MORTGAGOR AGREES: I. To use loan proceeds solely for 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 the Farm Credit Adtninistration, now existiug or as hereafter mnended. To keep the Property in good condition, working ~ rder and repair; care for Ibc Property in accordance witlr 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 itnprovements or fixtures thereon; not to remove, replace or alter any horticultural or viticultural tree, vine or shrub planted thereon without the prior written consent of Mortgagee, except in the ordiuary course of business; to complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged or destroyed tbereou; to comply with all laws, covenants and restrictions affecting the Property; aot to commit or permit waste thereol'; not to commit, suffer or permit any act npon the Property in violation of law; to do all other acts which from the character or use of the Pro perty may be reasonably necessary, the specific enumerations hereto not excludi ag the general; to observe and perform all obligations of Mortgagor under any lease of the Property. 3. To provide, maintain and deliver to Mortgagee fire and all other types of insurance of the 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 thereof, may be applied (10-01) Real Estate Mortgage, Fixture Filing and Security Agreemen! (Page 2 of 6) 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 satisfhctory hazard insurance, Mortgagee may procure, on Mortgagor's belial/; insm:hnce in favor of Mortgagee alone. If insurance cannot be secured by Mortgagor to provide the required coverage, such ioability shall constitute an event ofdethult hereunder. To appear in and litigate any action or proceeding purporting to affect the security hereof, the title to the Property, or the rights or powers of Mortgagee; Mortgagee may appear in and litigate any such action or proceedings, including any bankruptcy, partition or condemnation proceeding, affecting the Property, or Mortgagee's interest therein, in which eveut Mortgagor agrees to pa), all costs and ex penses thereo1} including attorney's fees and costs of securing evidence of title. To pay on or before the due date all taxes and assessments affecting the Property, including all assessments upon water company stock and all rents, assessntents and charges for water, appurtenant to or used in connection with the Property; to pay, whe,1 due, all encumbrances, charges, and liens, on the Property or any part thereofi 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 any suit which the Mortgagee may deem uecessary 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 (his Mortgage or any Other agreeme,tt related to the indebtedness secured by this Mo,'tgage, Mortgagor agrees to pay a reasonable suni 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 thc records and abstracting or insuring the title, and snch stnns, costs and expenses shall be secured hereby aud shall be included in any decree of foreclosnre. The fees and costs described herein and elsewhere in this Mortgage shall be in addition to those set forth in the loan agreement or any other written agreement between Mortgagor and Mortgagee. 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 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 dee~m necessary to protect the Property, Mortgagee being authorized to enter upon the Property for such purposes; commence, appear in and litigate any action or proceediug 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 absolnte discretion it may deem necessary tberetbre, including attorney'sl accountant's, and appraisal fees, environmental fees, and costs of securing evidence of title, and all amoonts so expended shall be obligations of Mortgagor secured by this Mortgage. Nqthing contained herein shall prohibit Mortgagee from entering the Property, at a reasonable time and upon reasonable notice to Mortgagor, witbout incurring or assuming any obligations or liabilities whatsoever, for the sole purpose of inspecting the Property. To pay immediately and without demand all sums expended by Mortgagee pursuant to tile provisions hereof, with interest from 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 amot, nt of capital stock or participation certificates, to the principal balance of the indebteduess secured hereby and shall accrue interest as herein set fo,-th. All such st, ms shall be secured hereby. 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 fi~rther represents, warrants and covenants as follows: (1) No pollutants, contaminants (including oil or other petroleum products), toxic or hazardous substances, or solid or bazardot, s wastes, as such terms are defined under any federal, state or local Environmental Law, regnlation or ordinance (hereinafter "Contaminants") have been, are being or will be generated, manufactured, produced, stored, disposed of, discharged, released tbreatened to be released, or otherwise allowed to migrate or escape on, under or from the Property in snch 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 governmental authority or to uudertake removal or remedial action to clean up such contaminants; (ii) No Contaminants are located on, in or under any property located adjacent to tile Property in such qnantities or concentrations as would constitute a violation of any 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 any 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 any information concerning the listiug or proposed listing of the Property or any adjacent property and shall provide Mortgagee with any documents in Mortgagors possessiou relative thereto; (iv) No hazardous wastes, as defined trader the Federal Resource Conservation and Recovery Act (42 U.S.C. Section 6901, et seq.), or any analogons state law ("Hazardous Wastes"), have been, are being or will be stored or treated in surface impoundments or other structures or facilities located on the Property that are partially or entirely below the ground surface; (10-01) Real Estate Mo~gage, Fixture Filing and Security Agreement (Page 3 of 6) 10. , '.(./, '~....~. :, (v) No litigation, 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 Mortgagor threatened against or auti¢ipated by Mortgagor, with respect to Mnrtgagor's nsc or management of Hazardous Materials or Hazardons Wastes or the environmental condition of the Property, including any underlying groundwater. Upon learning thereof, Mortgagor shall immediately notify Mortgagee of any such Action or threatened Action and provide lVlortgagee with copies of all documentation relative thereto; and (vi) Except as disclosed iu writing to Mortgagee, no underground tanks, wells (except domestic water wells), septic tanks, ponds, pits or ally 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 tile 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 ally requirements of city or county fire departrnents, applicable to the maintenance and use of such Tanks, including, without limitation, Title 40 of the Code of Federal Regnlations Part 112. (b) Nothing herein shall be deemed to prohibit Mm'tgagor 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 ont (a) in a good and husbandlike manner in the ordinary course of business, and (b) in compliance with all applicable enviromnental laws, regulatious, permits, orders or other requirements. (c) In the event that Mortgagor is in breach of any of its representations, warranties or covenants as set forth above, Mortgagor, at its sole expense, shall take all action required, including enviromnental cleanup of the Property, to comply 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 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, defend, protect, and hold harmless Mortgagee, its directors, officers, employees, agents, shareholders, successors and assigns and their officers, employees or agents, fi'om and against any and alJ claims, suits, damages, liens, losses, liabilities, interest, judgments, response and cleannp costs, demands, actions, causes of action, injuries, administrative proceedings and orders, consent agreelnents and orders, penalties, costs and expenses (including any fees and expenses incurred in enforcing this indemnity, any out-of-pocket litigatiou costs aud 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, injuly to persons, trespass or damages to or contamination of property or natural resources, or injury to business, in conuection 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 tile Property, or parties in a contractual relationship with Mortgagor, or any of them, or which dh'ectly or iudirectly 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 preseuce, use, generation, treatment, storage, disposal, release, threatened release, or discharge of any Hazardous Material or Contaminant at or from the Property and/or the cleanop of Hazardous Materials or Contaminants within, on or under the Property; (ii) Mortgagor's breach of any of the representations, warranties and covenants contained herein; and (iii) Mortgagor's violation or alleged violatiou of any applicable Environmental Law, regulation or ordinance. (e) Mortgagor's representations, warranties, covenauts and indemnities contained hereiu shall snrvive the occnrrence of any event whatsoever, including without limitation the payoff of any promissory note(s) secured hereby, the release or foreclosure of this Mortgage, the acceptance by Mortgagee of a deed in lieu of foreclosure, or any transfer or abandonmenl of the Property. (f) The term "Environmental Law" shall mean auy federal, state or local law, statute, ordinance, or regnlation, now in effect or hereinafter enactect, pertaining to health, industrial hygiene, or the euviromnental conditions on, under or about the Property, including but not limited to enactments requiring the removal or contaimnent of asbestos-containing materials in private buildings. (g) Mortgagor shall permit, or cause auy teuant of Mortgagor to permit, Mortgagee or its agents, or independent contractors to enter and inspect the Property at any reasonable time for purposes of determining, as Mortgagee deems necessary or desirable: (i) the existence, location and nature of any Hazardous Materials or Hazardous Wastes oil, under or about the Property, (ii) the existence, location, nature, magnitude and spread of auy Hazardous Materials or Hazardons Waste that has beet] spilled, disposed of, discharged or released on, under or about the Property, or (iii) whether or not Mortgagor and any tenant of Mortgagor is ill compliance with applicable Environmental Law. If Mortgagor or its tenants fail to comply fidly with tile terms of this subdivision (g), Mortgagee inay obtain affirmative injunctive relief to cmnpel such compliance. Grazing Rights. If ally portion of tile Property described ill this Mortgage is used by Mortgagor as the basis for obtaining grazing permits or other grazing rights issued by any goverumental agency, including without limitations the Forest Service, U.S. Department of Agriculture or the Bureau of Land Management, U.S. Department of Interior, Mortgagor covenants and agrees as follows: (a) Said graziug permits or other rights are m good standing and have not been modified, reduced or limited in any other respect, except as tully discl'osed in writing to Mortgagee: (b) Mortgagor will perforln all obligations imposed as a requiremenl of exercise of said grazing permits or other rights and will comply with all laws, rules aud regulations applicable theretol (10-01) Real Estate Mortgage, Fixture Filing and Security Agreement (Page 4 of 6) (c) Mortgagor will take such timely action as may be required to canse the renewal or reissuance of said graziog permits or at from time to time as they expire during the term thereof Mortgagor agrees and acknowledges that the failure to renew or cause the reissuance of any said pemfits for any reason, whether the result of an act or omission of Mortgagor or for reasons beyond Mortgagor's control, is au event of default hereunder and Mortgagee shall have the right to exercise the rights hereinafter set forth in this Mortgage; and (d) Mortgagor agrees to pay all fees, charges, rents or other payments accruing under said permits or any renewals thereof prior to delinquency. In the event Mortgagor 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 injury to tile 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. 2.'-' At any time, without affecting the liability of any person for the payment of the indebtedness secured hereby, and without otherwise affecting the security hereof, Mortgagee may (a) consent to or join in the making of any map or plat of the Property; (b) grant any easement or create any restriction thereof; (c) subordinate this Mortgage; (d) extend or modify the term of the loan or loans secured hereby; and (e) release without warranty, all or any part of the Property. Prior to any default by Mortgagor in the payment, observance, performance and discharge of any condition, obligation, covenant, or agreement of Mortgagor contained herein, Mortgagor may, for collection and distribution pnrposes only, collect and receive the Rents as they come due aud payable; the Rents are to be applied by Mortgagor to the payment of the principal and interest and all otber sums due or payable on any promissory note or guaranty secured by this Mortgage and to the payment of all other sums payable under this Mortgage and, thereafter, so long as the aforesaid has occurred, the balance 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 be appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby secured, cuter upon and take possession of the Property or any part thereat; in his own name, sue for or otherwise collect such rents, issues and p,'ofits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorney's fees, upon any inde-btedness 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 stone or any part thereof for such rental, term, and upon such conditions as its judgment may dictate; also prepare for harvest, remove, aud 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 notice of default hereunder or invalidate any act done pursuant to such aotice. Upon defanlt by Mortgagor in payment of any indebtedness secured hereby or in performance Of any agreement hereunder, all sums secured hereby shall immediately become due and payable at the option of the Mortgagee and in accordance with applic, able state law, In tbe event of default, Mortgagee may employ counsel to enforce paylnent of the obligations secured hereby, may lbreclose and, if applicable, sell the Prope~ by advertisement and sale, and in accordance with other applicable state law, and may exercise snch other rights and remedies granted by law and equiW, which rights and remedies shall be cumulative and not excl0'di~e.' Mortgagee may resort to and realize upon the security hereunder and any other real or personal propeay security now or hereafter held by Mortgagee fur the obligations secured hereby in snch order and manner as Mortgagee may, in its sole discretion, determine. Resort to any or all such security may be taken concurrently or successively and in one or several consolidated or independent judicial actions or law~l nonjudicial proceedings, or both. If the obligation secured by this Morlgage 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 any manner and in any order or sequence pertained by applicable law, All re~nedies are cumulative and oone are exclusive; no election by Mortgagee to pnrsue one remedy or item of collateral shall be deemed to be a release or waiver of any other item of collateral or a release or modification of the liability of Mortgagor or any guarantor to pay and perlbm~ 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 in which the Prope~y is located. Nothing contained herein shall be construed to provide that thc substantive law of the state in which the Prope~ is located shall apply to Moagagee's rights and Mo[tgagor~a 0,bljgations hereunder or under the promissory note(s) or guaranties described herein which are and shall continue to be governed by tb~u.~'~lh~C5Fi~[~[E'i'fi~h c~ tm prom ssory note(s) or guarantmes were executed ~ , ~.. .. · ~- ............ ~ /~ :,..-.. o~.. / The failure on the part of the Mo,gagee to promptly enforce any ri~l~t'l~e~h3.¢;':l:[i.~,~i~'O~at~a~.'~.,~,,..,.¥ .W'a[Y¢+f such right and the waiver by Moagagee of any dehult shall not constitute a waiver m dhy' other';ubs~fl~;tJ;~eIhnlr~""',$~,f~u~nt.... --.~,.... __ acceptance of any payment by the holder hereof shall not be deemed a waiver or any det'gult by. Mortga}0~i;,r'}& M~a~-~5~.h'gh[~ereunder as the result of any sale~ agreement to sell, conveyance, or alienation, regardless of holder's knowledge of such dehult, sale, agreement to sell, conveyance, or alienation at the time of acceptance of such payment. 7. This Mortgage applies Ia, inures to tbe benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The term Mortgagee shall meander aud owner of any note secured hereby; r,~_ tbth~_ note bas been (I 0-01) Real Est',,i'te~:iOib'rtgage, Fixtm'e Filing and Sect~rity Agreement ....... (Page 5 of 6) pledged, the pledgee thereof. In this IVlortgage, 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, all obligations secured hereby, irrespective of the maturity dates, at the option of the holder hereof, and without demand or notice, shall immediately become due and payable. Failure to exercise such option shall not constitute a waiver of the right to exercise this option in the event of subsequent sale, agreement to sell, conveyance or alienation. (b) A water transfer is any ~ransfer, assignment, sale, exchange, girl, encumbrance, pledge, hypothecation, alienation, grant of option to purchase, or other disposition of, directly, indirectly or in trust, voluntarily or involuutarily, by operation of law or otherwise, or the entry into a binding agreement to do any of the foregoing with respect to all or any part of (i) the groundwater on, under, pumped from or otherwise available to the Property, (ii) Mortgagor's right to remove and extract any such groundwater including any permits, rights or licenses granted by any govermnental authority or agency ahd 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 stm'e 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 company, mutual water compaoy, 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 ~nore 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 an3' 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. Signatur.e(s): FAE HOLDINGS 0403032R, L.L.C., a Utah Limited Liability Company By: First Americ~change Compa)>y) a ~et~re Lilnited Liability.Q6mDfny~, MANAG~I~ // // . MICHAEL A. ANDERSON Its: Vice President Notary Ackno;vledgment: STATE 0~ ~ ) · COUNTY OgO,,4,l~l ,~(~ ) evidence] to be the person(s) who executed the within instrument on behalf of the limited liability company therein named, and acknowledged to me that the limited liability company executed the within instr~ent pursuant to its articles of organization and operating agreement. WI~ESS my hand and official seal F~:~'O[A~' PUBU' ' S N [' °I O[AH I' Nota . P u b l i c in and ~C o un ty and S tate (10-01) Real Estate Mortgage, Fixture Filing and Secnrity Agreement (Page 6 of 6) STATE OF WYOMING, COUNTY OF LINCOLN PAGE ONE OF ONE osss o Exhibit A That part of the NW~SE~ of Section 25, T26N R120W of the 6th P.M., Lincoln County, Wyoming lying and being situate northerly of U.S. Highway 30. Parcel 2 T26N Rll9W of the 6th P.M., Lincoln County, Wyoming Section 19: SW~SW~; Section 30: W~/fNW~ and NW~SW~. T26N R12OW of the 6th P.M., Lincoln County, Wyoming Section 24: SE~SE~, N~SE~, SW~SE~ and Lot 3; Section 25: E~NEW, NE~SE~ and W~/fNE~. LESS AND EXCEPT the following described land: Part of Section 24, T26N R120W of the 6th P.M., Lincoln County, Wyoming described as follows: Beginning at a point which is West 2488 feet, more or less, and South 2602 feet, more or less, from the Northeast corner of said Section 24 and running thence East along and existing fence 1661 feet, more or less; thence South along an existing fence 188 feet, more or less; thence West along an existing fence 455 feeE, more or less; thence South along an existing fence 89 feet, more or less; thence West along an existing fence 511 feet, more or less; thence North along an existing fence 233 feet, more or less; thence West along an existing fence 695 feet, more or less; thence North along the East right of way line of said highway, 44 feet, more or less to the point of beginning. LESS AND EXCEPT the land described in the Order of Conveyance to the State Highway Commission of Wyoming (Case 16-6007) filed April 21, 1981 in the Office of the Clerk of District Court, Lincoln County, Wyoming. ALSO LESS AND EXCEPT the lands conveyed .to Lincoln County, .Wyoming in Warranty Deed recorded July 10, 1935 in Book 20 of Deeds on page 15 of the records of the Lincoln County Clerk. ALSO LESS AND EXCEPT the lands conveyed to Lincoln County, Wyoming in Warranty Deed recorded August 4, 1935 in Book 21 of Deeds on page 183 of the records of the Lincoln County Clerk. ALSO LESS AND EXCEPT the lands conveyed to State Highway Commission of Wyoming in Warranty Deed recorded July 9, 1991 in Book 298PR on page 361 and corrected in Warranty Deed recorded December 8, 1993 in Book 321PR on page 477 of the records of the Lincoln County Clerk. ALSO LESS AND EXCEPT the lands contained in Warranty Deed recorded October 4, 1996 in Book 389PR on page 21 of the records of the Lincoln County Clerk. ALSO TOGETHER WITH THE RIGHT TO THE FOLLOWING DESCRIBED WATER REGISTERED WITH THE STATE OF WYOMING: WATER RIGHT PERMIT t/85152 AND WATER RIGHT PERMIT t/114056. ALSO TOGETHER WITH 680 SHARES OF THE CAPITAL STOCK OF BORDER IRRIGATION COMPANY.