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HomeMy WebLinkAbout875286 RECEIV£D LINCOLi'.I COUNT'( 0LERK 875286 by Southwe;t"['i'ile Co~npa~.. y ,as a. ~:our. tesy BOOK ~-0 PR PAGE 7 3 6 WHEN REOORDED MAIL TO: Genoa National Bank 502 Willard Avenue P.O. Box 607. .... Genoa. NE 68640-0607 FOR RECORDER'S USE ONLV HAZARDOUS SUBSTANCES CERTIFICATE AND INDEMNITY AGREEMENT THIS HAZARDOUS SUBSTANCES AGREEMENT dated August 15, 2001, is made and executed among GREGORY P BARTLETT and HEATHER L BARTLETT, BOX 475, COKEVlLLE, WY 83114 (sometimes referred to below as "Borrower'*' and sometimes as "lndemnitor"); and Genoa National Bank, 502 Willard Avenue, P.O. Box 607, Genoa, NE 68640-0607 (referred to below as "Lender"). For good and valuable consideration and to induce Lender to make a Loan to Borrower, each party executing this Agreement hereby represents and agrees with Lender as follows: PROPERTY DESCRIPTION. The word "Property" as used In this Agreement means the following Real Property located in Lincoln County, State of Wyoming: See Exhibit "A", which Is attached to this Agreement and made a part of this Agreement'as if fully set forth herein. The Real Property or Its address Is commonly known as Rural Lincoln County, Cokevllle, WY 83114. REPRESENTATIONS. The following representations are' made to Lender, subject to disclosures made and accepted by Lender in writing: Use of Property. After due inquiry and. Investlgatien, lndemnltor has no knowledge, or reason to believe, that there has been any use, generation, manufacture, storage, treatment, refinement, transportation, disposal, release, or threatened release of any Hazardous Substance by any person on, under, or about the PrQperty. ' Hazardous Substances. After due Inquiry and Investigation, lndemnltor has no knowledge, or reason to believe, that the Property, whenever and whether owned by previous Occupants, has ever contained asbestos, PCB or other Hazardous Substances, whether used in construction or stored on the Property. ' No Notices. Indemnitor has received no summons, citation, directive, letter or other communication, written or oral, from any agency or department of any county or state or the U.S. Government concerning any intentional or unintentional action or omission on, under, or about the Property which has resulted in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of Hazardous Substances Into any waters oF onto any lands or where damage may have resulted to the lands, waters, fish, shellfish, wildlife, biota, air or other natural resources. AFFIRMATIVE COVENANTS. Subject to disclosures made and accepted by Lender in writi.ng, Indemnitor covenan'ts with Lender as follows: Use of Property. Indemnifor will not use and does not intend to use the Property to generate, manufacture, refine, transport, treat, store, handle or dispose of any Hazardous Substances. Compliance with Environmental Laws. Indemn tot shall cause the Property and the operations conducted on It to comply with any and all Envlronmental Laws and orders of any governmental authorities having jurisdiction under any Environmental Laws and shall obtain, keep in effect and comply with ell governmental permits and authorizations required by Environmental Laws with respect to such Property or operations. Indemnftor shall furnish Lender with copies of ell such permits and authorizations and any amendments or renewals of them and shall notify Lender of any expiration or revocation of such permits or authorizations. Preventive, Investigatory and Remedial Action. Indemnitor shall exercise extreme care in handling Hazardous Substances if Indemnltor uses or encounters any. Indemnitor, at Indemnitor's expense, shall undertake any and all preventive, investigatory or remedial action (including emergency response, removal, containment and other remedial action) (a) required by any applicable Envlr0nmental Laws or orders by any governmental authority having jurisdiction under Environmental Laws, or (b) necessary to prevent or minimize property damage (including damage to Occupant's own property), personal Injury or damage to the environment, or the threat of any such damage or injury, by releases of or exposure to Hazardous Substances in connection with the Property or operations of any Occupant on the Property. In the event Indemnitor fails to perform any of Indemnltor's obligations under this section of the Agreement, Lender may (but shall not be · required to) perform such obligations at Indemnltor's expense. All such costs and expenses Incurred by Lender under this section and otherwise under this Agreement shall be reimbursed by Indemnitor to Lender upon demand with Interest at the Loan default rate, or In the absence of a default rate, at the Loan interest rate. Lender and Indemnitor intend that Lender shall have full recourse to Indemnitor for any sum et any time due to Lender under this Agreement. in performing any such obligations of Indemnitor, Lender shall at all times be deemed to be the agent of Indemnitor and shall not by reason of such performance be deemed to be assuming any responsibility of Indemnltor under any Environmental Law or to any third party. Indemnltor hereby Irrevocably appoints Lender as Indemnitor's attorney-in-fact with full power to perform such of Indemnitor's obligations under this section of the Agreement as Lender deems necessary and appropriate. Notices. Indemnitor shall immediately notify Lender upon becoming aware of any of the followlng: (1) Any spill, release or disposal of a Hazardous Substance on any of the PropertY, or In connection with any of Its operations If such spill, release or disposal must be reported to any governmental authority under applicable Environmental Laws. (2) Any contamination, or Imminent threat of contamination, of the Property by Hazardous Substances, or any violation of Environmental Laws in connection with the Property operations conducted on the Property. (3) Any order, notice of violation, fine or penalty or other similar action by any governmental authority relating to Hazardous Substances or Environmental Laws and the Property or the operations conducted on the Property. (4) Any Judicial or administrative Investigation or proceeding relating to Hazardous Substances or Environmental Laws and to the Property or'the operations conducted on the Property. (5) Any matters relating to Hazardous Substances or Environmental Laws that would give a reasonably prudent Lender cause to be concerned that the value of Lender's security interest in the Property may be reduced or threatened or that may Impair, or threaten to impair, lndemnitor's ability to perform any of its obligations under this Agreement when such performance Is due. Access to Records. Indemnitor shall deliver to Lender, at Lender's request, copies of any and all documents In Indemnitor's possession or to which It has access relating to Hazardous Substances or Environmental Laws and the Property and the operations conducted on the Properly, Including without limitation results of laboratory analyses, site assessments or studies, environmental audit reports and other consultants' studies and repods. HAZARDOUS SUBSTANCES AGREEMENT Loan No: 86 (.~'.~r-~ f~- (Continued) Inspections. Lender reserves the right to inspect and Investigate the Property and operations on It at any time and from time to time, and Indemnltor shall cooperate fully with Lender In such Inspection and investigations. If Lender at any time has reason to believe that Indemnitor or any Occupants of the Property are not complying with all applicable Environmental Laws or with the requirements of this Agreement or that a material spill, release or disposal of Hazardous Substances has occurred on or under the Property, Lender may require Indemnitor to furnish Lender at Indemnitor's expense an environmental audit or a site assessment with respect to the matters of concern to Lender. Such audit or assessment shall be performed by a qualified consultant approved by Lender. Any Inspections or tests made by Lender shall be for Lender's purposes only and shall not be construed to create any responsibility or liability on the part of Lender to any Indemnltor or to any other person. INDEMNITOR'S WAIVER AND INDEMNIFICATION. Indemnitor hereby indemnifies and holds harmless Lender and Lender's officers, directors, employees and agents, and Lender's successors and assigns and their officers, directors, employees and agents against any and~a[I claims, demands, losses, Ifabilltles, costs and expenses (including without limitation attorneys' fees at trial and on any appeal or petition for review) incurred by such person la) arising out of or relating to any investigatory or remedial action involving the Property, the operations conducted on the Property or any other operations of Indemnltor or any Occupant and required by Environmental Laws or by orders of any governmental authority having Jurisdiction under any Environmental Laws, or lb) on account of Injury to any person whatsoever or damage to any property arising out of, in connection wlth, or In any way relating to (I) the breach of any covenant contained In this Agreement, (Il) the violatiOn of any Environmental Laws, (lil) the use, treatment, storage, generation, manufacture, transport, release, spill disposal or other handling of Hazardous Substances on the'Property, (iv) the contamination of any of the Property by Hazardous Substances by any means whatsoever ({ncluding without limitation any presently.existing contamination of the Property), or (v) any costs Incurred by Lender pursuant to this Agreement. In addition to this indemnity, Indemnttor hereby releases and waives all present and future clalms against Lender for indemnity or contribution in the event Indemnitor becomes liable for cleanup or other costs under any Environmental Laws. PAYMENT: FULL RECOURSE TO INDEMNITOR. Indemnitor Intends that Lender shall have full recourse to Indemnitor for Indemnltor's obligations under this Agreement as they become due to Lender. Such liabilities, losses, claims, damages and expenses shall be reimbursable to Lender as Lender's obligations to make payments with respect thereto are incurred, without any requirement of waltlng for the ultimate outcome of any litigation, claim or other proceeding, and Indemnitor shalJ pay such Ilablilty, losses, claims, damages and expenses to Lender as so Incurred within thirty (30) days after written notice from Lender. Lender's notice shall contain a brief itemization of the amounts incurred to the date of such notice. In addition to any remedy available for failure to pay periodically such amounts, such amounts shall thereafter bear interest at the Loan default rate, olin the absence of a default rate, at the Loan Interest rate. SURVIVAL. The covenants contained in this Agreement shall survive lA) the repayment of the Indebtedness, lB) any foreclosure, whether judicial or nonjudicial, of the Properly, and lC) any delivery of a deed In lieu of foreclosure to Lender or any successor of Lender. The covenants contained in this Agreement shall be for the benefit of Lender and any successor to Lender, as ho[der of any security interest In the Property or the Indebtedness secured thereby, or as owner of the Property following foreclosure or the delivery of a deed in lieu of foreclosure. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement: Amendments. 'What is written in this Agreement is lndemnitor's entire agreement with Lender concerning the matters covered by this Agreement. To be effective, any change or amendment to this Agreement must be In writing and must be signed by whoever will be bound or obligated by the change or amendment. Attorneys' Fees; Expenses. If Lender institutes any suit or action to enforce any of the' terms of this Agreement, Lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys' fees at trial and upon any appeal. Whether or not any court action is involved, and to the extent net' prohibited by law, all reasonable expenses Lender incurs that In Lender's opinion are necessary at any time for the protection of its interest or the enforcement of its rights shall become a part of the Indebtedness payable on demand and shall bear Interest at the Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph include, without limitation, however subject to any limlts under applicable law, Lender's attorneys' fees and Lender's legal expenses, whether or not there Is a lawsuit, Including attorneys' fees and expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collectlon services, the cost of searching records, obtaining title reports (including foreclosure reports), surveyors' reports, and appraisal fees and title insurance, to the extent permitted by applicable law. Indsmnitor also will pay any court costs, in addition to all other sums provided by law. Caption Headings. Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of this Agreement. Notices. Any notice required to be given under'this Agreement shalt be given In writing, and shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited In the United States mail, .as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Agreement. Any person may change his or her address for notices under this Agreement by giving formal written notice to the other person or persons, specifying that the purpose of the notice is to change the person's address. For notice purposes, Indemnitor agrees to keep Lender informed at all times of Indemnitor's current address. Unless otherwise provided or required by law, If there is more than one Indemnitor, any notice given by Lender to any Indemnitor Is deemed to be notice given to all IndemnJtors. It will be Indemnitor's responsibility to tell the others of the notice from Lender. Governing Law. This Agreement will be governed by and Interpreted In accordance with federal law and the laws of the State of Nebraska. This Agreement has been accepted by Lender In the State of Nebraska. Choice of Venue. If there is a lawsuit, Indemnltor agrees upon Lender's request to submit to the jurisdiction of the courts of Nance County, State of Nebraska. Joint and Several Liability. Ali 0bligat one of In~emnftor under this Agreement shall be joint and several, and all references to Indemnitor shall mean each and every Indemnltor. This means that each Indemnltor signing below is responsible for all obligations In this Agreement. No Waiver by Lender. Indemnitor understands Lender will not glve up any of Lender's rights under this Agreement unless Lender does so in writing. The fact that Lender delays or omits to exercise any right will not mean that Lender has given up that right. If Lender does agree In writing to give up one of Lender's rights, that does not mean Indemnitor will not have to comply with the other provisions of this Agreement. Indemnltor also understands that if Lender does consent to a request, that does not mean that Indemnitor will not have to get Lender's consent again if the sltuatlon happens again. [ndemnitor further understands that just because Lender consents to one or more of Indemnttor's requests, that does not mean :Lender will be required to consent to any of }ndemnltor's future requests. Indemnltor waives presentment, demand for payment, protest,, and notice of dishonor. Indemnitor hereby waives notice of acceptance of this Agreement by Lender. Notices. Any notice required to be given udder this Agreement shall be given in writing, and shah be effective when actually delivered, when actually received by telefacslmile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Agreement. Any person may change his or her address for notices under this Agreement by giving formal written notice to the other person or persons, specifying that the purpose of the notice is to change the person's address. For notice purposes, Indemnitor agrees to keep Lender informed at there Is more than one Indemnitor, any notice given by Lender to any Indemnitor is deemed to be notice given to all lndemnltors, It wilt be Indemnitor's responsibility to tell the others of the notice from Lender. Severablllty. If a court finds that any provision of this Agreement is not valid or sh°uld not be enforced, that fact by ~tself will not mean that the rest of this Agreement will not be valid or enforced. Therefore, a court will enforce the rest of the provisions of this Agreement even if a provision of this Agreement may be found to be invalid or unenforceable. Successors and Assigns. Subject to any limitations stated in this Agreement on transfer of Indemnitor's interest, thts Agreement shall be binding upon and Inure to the benefit of the parties, their successors and assigns. If ownership of the Property becomes vested In a person other than Indemnitor, Lender, without notice to Indemnltor, may deal with Indemnit0r's successors with reference to this Agreement and the Indebtedness by way of forbearance or extension without reieaslng Indemnitor from the obligations of this Agreement or liability under the Indebtedness. Time Is of the Essence. Time Is of the essence In the performance of this Agreement. HAZARDOUS SUBSTANCES AGREEMENT Loan No: 86 (~,-~(~ (Continued) 7 3 ~ Page 3 DEFINITIONS. The followlng words shall have the following meanings wl~en used in this Agreement: Agreement. The word "Agreement" means this Hazardous Substances Agreement, as this Hazardous Substances Agreement may be amended or modified from time to time, together with ail exhibits and schedules attached to this Hazardous Substances Agreement from time to time. Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statutes, regulations and ordinances relating to the protection of human health or the environment, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorfzation Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable state or federaJ laws, rules, or regulations adopted pursuant thereto. ' ~ ~ Hazardous Substances, The words "Hazardous Substances" mean materials that, because of their quantity, concentration or physical, chemical or Infectlous characteristics, may cause or pose a present or potential hazard to human health or the environment when Improperly used, treated, stored, disposed Of, generated, manufactured, transported or otherwise handled. The' words "Hazardous Substances" are used In their very broadest sense and Include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances" also includes, without limitation, petroleum and petroleum . by-products.or.any fraction thereof and asbestos. ' Indebtedness; The word "indebtedness" means all principal, Interest, and other amounts, costs and expenses payable under the Note or Related Documents, together with all renewals of, extensions of, modifications of, consolidations of and substitutions for the Note or Related Documents and any amounts expended or advanced by Lender to discharge Indemnitor's obligations or expenses incurred by Lender to enforce Indemnitor's obligations under thfs Agreement, together with interest on such amounts as provided in this Agreement. Lender. The word "Lender" means Genoa National Bank, its successors and assigns. The words" , or company that acquires any Interest in the Note. successors or assigns mean any person Occupant. The word "Occupant" means individually and collectively all persons or entitles occupying or utilizing the Property, whether as owner, tenant, operator or other occupant. Property. The word "Property" means all of Indemnitor's right, title and interest in and to alt the Property as described In the "Property Description" section of this Agreement. Real Property. The words "Real Property" mean the real property, interests and rights, as further described In this Agreement. EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES HAVING READ ALL THE PROVISIONs OF THIS AGREEMENT, AND EACH AGREES TO ITS TERMS. NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS AGREEMENT EFFECTIVE. THIS AGREEMENT7 DATED AUGUST 15, 2001. BORROWER~ ~ ..... i . . GO~Y P.B(..~Tr~. fl ,"l'n~i~idua'l¥~ "';'"'"';';'? I 1, ndlvld'~ally - LENDER: X Authorized Signer INDIVIDUAL ACKNOWLEDGMENT STATE OF Wyom±ng ) )SS COUNTY OF Lincoln ) On this day before me, the undersigned Notary Public, Personally appeared GREGORY P BARTLETT and HEATHER L BARTLETI', A married person each In his or her own right and as spouse of the other, to me known to be the individuals described in and who executed the Hazardous Substances Agreement, and acknowledged that they signed the Agreement as their free and voluntary act and deed, for the uses and purposes therein mentioned. Given under.my hand and official seal this lb~th day of ~ust ,20 01 . ~BL~'YS,~IONJ. · ~IOTNWI't~JC t Notary Public In and for the/State of wyoming ~.~ ~ ~ Residing at Kemmerer, Wyomi,n~ My commlsalon expkesFebruary 2, 2002 HAZARDOUS SUBSTANCES AGREEMENT Loan No: 86 ~*~,~>f,~,.. (Continued) ,~:~r~,(~,;~ , ( Page 4 LENDER ACKNOWLEDGMENT STATE OF ) ) SS COUNTY OF ) On this day of appeared ,20 , before me, the undersigned Notary Public, personally _ and known to me to be' the authorlzed agent for the Lender that executed the within and foregoing instrument and acknowledged said Instrument to be the free and volun[ary act and deed of the said Lender, duly authorized by the Lender through Its board of d[rectors or otherwise, for the uses and purposes therein mentioned, and on oath stated that he or she is authorized to execute this said instrument and that the seal affixed Is the corporate seal of said Lender. Notary Public In and for.the State of Residing at My commission exptres EXHIBIT A 7 Legal Description for Gregory P. Bartlett and Heather. L. Bartlett T23N Rll9W of the 6th P.M., Lincoln County, Wyoming Resurvey Tract No. 49: That Portion lying Eastward of the centerline of Oregon· Short Line Railroad Company (Union Pacific Railroad Company) right-of-way, more particularly described as follows: Beginning at Comer No.~l of said Tract No. 49; thence S 0032' W, 100.50 chains to Corner No. 2 thereof; thence West 20.00 chains to Comer No. 1 of Tract No. 45 of said Township and Range; thence West 18.82 chains along the South boundary of said Tract No. 49 to its intersection with the center line of the right-of-way of said railroad company; thence N 10042, E, 61.36 chains along said center line to a North boundary line of said Tract No: 49; thence East 8.1:2 chains to Corner No. 5 of said Tract No. 49, Identical with Comer No. 4 of Tract 57 of said Township and Range; thence N 0°27, W, 40.10 chains to Corner No. 6 of said Tract 49 identical.with Comer No. 3 of Tract 57;~ thence N 89043, E, 20.56 chains to Corner No. 1 of said Tract 49 identical with Corner No. 2 of said Tract 57, to the point of beginning. ALSO Resurvey Tract No. 45: That portion lying Eastward of the centerline of the Oregon Short Line Railroad Company (Union Pacific Railroad Company) right-of-way, more particularly described as follows: Beginning at Comer No. 1 of said Tract 45; thence South 40.00 Chains to Comer NO. 2 thereof; thence West 20.00 chains to Comer No. 3 of said Tract 45; thence West 6.38 chains on a line to the Intersection of said line with the centerline of the right- of-way of said railroad Company; thence N 10°42' E, 40.71 chains to the North boundary of said Tract 45; thence East 18.82 chains to Corner No. 1 of said Tract 45 to the point of beginning. T23N Rll9W of the 6th P.M., Lincolu County, Wyoming,' continued Section 17: Lots 15 and 32; Section 20: Lots 1, 17, 18 and 29; Section 21' SIAS~A; Section 14: Lot 23; Section 23' Lots 3 and 4, E1/2NWIA; Section 29: SEIANEIA and NEIASE~A; Lots 1, 4 and 16; Eib of Lots 18 and 27 and more particularly described as follows: Commencing at the Northeast Corner of Lot 18, running thence West 756.36 feet; thence South 2029.5 feet to the North boundary of Tract 42; thence East 756.36 feet to the Southeast Comer of Lot 27, Section 29; thence North 2029.5 feet to the place of beginning. Section 31: Lots 32 and 34; LESS AND EXCEPT any land contained in Warranty Deeds recorded January 4, !929 in Book 16 of Deeds on pages 68, 164 and 165 of the records of Lincoln County Clerk. T22N Ril9W of the 6th'P.M., Lincoln County, Wyoming Secti6n 6: Lots 9, 10, 17, 20, 21 and 35; that portion of EIhEIh lying Westerly from the centerline of the Oregon Short Line Railroad Company (Union Pacific Railroad Company) right-of-way. LESS AND EXCEPT any land contained Warranty Deed recorded September 3, 1915 in Book 2 of Deeds on page 347 of the records of Lincoln County Clerk.