HomeMy WebLinkAbout904997Recording Requested by:'
WHEN RECORDED MAIL TO:
Western AgCredit, FLCA
P.O. Box 95850
South Jordan, Utah 84095-0850
Loan No. 4200032502
RECEIVED 12/3/2004 at 11:10 AM
RECEIVING # 904997
BOOK: 574 PAGE: 1
JEANNE WAGNER
IVED
INTY OLERK
PI'i 3:
;3
LINCOLN COUNTY CLERK, KEMMERER, WY ,,;, -,
N E R
REAL ESTATE MORT( ;AGE,
FIXTURE FILING AND SECURITY AG R EEMENT
THIS MORTGAGE is made this 13th day of M~y, 2004 between KENNETH W. ('OOK; NANETTE COOK; and ORIS COOK RANCH,
a Limited Partnership hereinafter called "Mortgagor", and Western AgCredit, l,l?_A_ hereinafter called "Mortgagee", a corporation, existing
and operating under the Farm Credit Act of 1971, as amended, having its principal pl:~cc of business in South Jordan, Utah.
WITNESSETH: That Mortgagor IRREVOCABLY GRANTS, BARGAINS, SELl. S, CONVEYS AND ASSIGNS unto Mortgagee together with
right of entry and possession the following described real property situated in the Counb of Lincoln., State of Wyoming:
FOR DESCRIPTION OF REAL PROPERTY SEE EXHIBIT "A" ATTACHED II I.'.ll ETO AND MADE A PART HEREOF
TOGETHER WITH: all buildings, structures, equipment, fixtures (including trees, x, mes and shrubs) and improvements of every kind and
description now or hereafter constructed or placed thereon; all standing timber and tm~bcr to be cut located thereon; all existing and future water
rights, however evidenced, including irrigation and watering eqmpment and systems, ditches, laterals, conduits, and rights-of-way used to convey such
water or to drain the above-described property, all of which fights are hereby made appurtenant to the property, and all pumping plants, electfical
generators, wind machines, and fencing and storage tanks, now or hereafter used in connccnon with the property, all of which are hereby declared to
be fixtures; all existing and future grazing rights, leases, permits and licenses; all mi. gas, and mineral leases, permits and rights used with the
property; all tenements, hereditaments, easements, rights-of-way and appurtenances m [l~e property; and all right, title, and interest at any time of
Mortgagor (or any of its bailees, agents, or instrumentalities), whether now existing or hereafter arising or acquired, whether direct or indirect, whether
owned legally, of record, equitably or beneficially, whether constituting real or personal pre perry (or subject to any other characterizations), whether
created or authorized under existing or future laws or regulations, and however arising m, 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 the
term(s). The term "water" includes water rights and right to water or whatever rights m money, proceeds, property or other benefits are exchanged or
received for or on account of any Water Assets or any conservation or other nonuse of water, including whatever rights are achieved by depositing
one's shares of any Water Assets in any water bank or with any water authority, or any uther water reallocation rights:
a. All water (including any water inventory in storage), water rights and entitlements, other rights to water and other fights to receive water or
water rights of every kind or nature whatsoever including (i) the groundwater on, under, pumped from or otherwise available to the Property, whether
as the result of groundwater rights, contractual rights or otherwise, (ii) Mortgagor's right to remove and extract any such groundwater including any
permits, rights or licenses granted by any governmental authority or agency or any righls granted or created by any use, easements, 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, decreed or otherwise and whether or not pursuant to pemfit or other governmental authorization, or the right to
store any such water, (iv) any water, water right, water allocation, distribution righL 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 6f any private water compan y, n mt u al 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 transfer any 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 ptfint 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 xvatcr or Water Asset;
d. All rights, claims, causes of action, judgments, awards, and other judicial, arbiter or administrative relief in any way relating to any water or
Water Asset;
e. All storage and treatment rights for any water or any other Water Asset, whether on or off the Property or other property of Mortgagor, together
with all storage tanks, and other equipment used ~r usable in connection with such slomge and any water bank deposit credits, deposit accounts or
other fights arising on account of the storage or nonuse of any watei' or any water or an3 other Water Asset;
*ASN 132~ (10- ate Mortgage, F~xture Fd~ng and Security Agreefl~~ .... :::' ':~
f. All rights to transport, carry, allocate or otherwise deliver water or other Water .-\sscts by any means wherever located;
g. All guaranties, warranties, marketing, management or service contracts, indemnib, agreements, and water right agreements, other water related
contracts and water reallocation fights, all insurance policies regarding or relating to any \Vater Asset;
h. All rents, ~ssues, profits, proceeds and other accounts, instruments, chattel paper, comract rights, general intangibles, deposit accounts, and other
rights to payment arising from or on account of any use, nonuse, sale, lease, transff~ o~ other disposition of any Water Asset.
Absolute Assignment of All Revenue From Water Assets - Mortgagor'hereby al~solutely and unconditionally assigns to Mortgagee all proceeds,
rents, issues and profits from any use (apart from watering plants on the Property o~ other ordinary uke on the Properly), nonuse, sale, lease, transfer
or disposition of any kind of any water or any other Water Asset suhject to a ~cn in favor of Mortgagee. That assignment shall be perfected
automatically without appointment of a receiver or Mortgagee becoming a mortgagee m possession and Mortgagee shall have the right, before or
after the occurrence of any default or event of default, to notify any account debtor to pay all amounts owing with respect to those proceeds, rents,
issues and profits directly to Mortgagee. Excel3t as otherwise agreed in writing b3 IMortgagee, Mortgagee may apply any such collection (and any
rents, issues, profits and proceeds) to any indebtedness owed to Mortgagee in an), order, priority or manner desired by Mortgagee.
MORTGAGOR ABSOLUTELY AND UNCONDITIONALLY ASSIGNS, transffrs, 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"); SUBJEt"I ,' IIOWEVER, to the right, power and authority g~ven to and
conferred upon Mortgagor by Paragraph B.3 hereofi
PERSONAL PROPERTY SECURITY AGREEMENT- All of the Property wil bc 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 wlthotit limitation any Water Assets or fixtures), is deemed to
constitute, is adjudicated to be, or declared to be personal properly, this Mortgage sh'all also be deemed to be a security agreement. Mortgagor does
hereby create and grant to Mortgagee a security interest in all such personal propcrb described herein; and further, grants to Mortgagee all of the
rights and remedies of a secured party under the Uniform Commercial Code and othe~ ~ pplicable state law, which rights are cumulative.
FIXTURE FILING - This Mortgage shall also be deemed to be a fixture filing unde~ Iht Uniform Commercial Code and is to be recorded in the
county real estate records.
FOR THE PURPOSE OF SECURING: (1) payment of the indebtedness or oblig.mons evidenced by the following promissory note(s) and/or
guaranties executed by Mortgagor and/or others to the Mortgagee at the times, in thc manner and with interest as therein set forth (notes may contain
variable or adjustable rate provisions):
Dated Maturity Face Amount Dated Maturity Face Amount
5/13/2004 12/1/2033
$175,000.00
(2) The payment of such additional loans or advances, including advances under a rcvtflving line of credit, with interest thereon, as hereafter may be
made to Mortgagor, or Mortgagor's successors or assigns, and/or to parties whose obligation Mortgagor is guaranteeing, evidenced by a promissory
note or otherwise and any obligations evidenced by any guaranties executed by Morlgagor n thvor 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 loans or advances shall recite that it is to be secured by this Mortgage; (3) the payment of any substitute notes, renewals,
reamortizations, and extensions of all indebtedness secured by this Mortgage; (4) mc performance of every obligation and agreement of Mortgagor
whether contained or incorporated by reference in this Mortgage, or contained in a% loan document or guaranty executed by Mortgagor in favor of
Mortgagee, with respect to any loan, advance, or guaranty secured by this Mortg:~gc; and (5) the payment of all sums expended or advanced by
Mortgagee under or pursuant to the terms of this Mortgage, together with interest thcreo~] as herein provided. The continuing validity and priority of
this Mortgage as security for future loans, advances, or guaranties shall not be imlxm cd 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, MORTGA(;()R AGREES:
1. To use loan proceeds solely for the purposes set forth in the loan apphcation(s) or agreements; to comply with the Farm Credit Act of
1971, as amended, and/or the regulations of the Farm Credit Adminislr, fitm, now existing or as hereafter amended.
To keep the Property in good condition, working order and repair; care Ibr the Pre perty in accordance with standards of good husbandry
and to keep all trees, vines and crops on said land properly cultivated, ~ gated, fertilized, sprayed, and fumigated; not to remove, destroy
or suffer the removal or destruction of any building, fence, canal, well ,. mhcr improvements or fixtures thereon; not to remove, replace
or alter any horticultural or viticultural tree, vine or shrub planted thc~ con without the prior written consent of Mortgagee, except in the
ordinary course of business; to complete or restore promptly and m good and workananlike manner any building which may be
constructed, damaged or destroyed thereon; to comply with all laws. c,,x chants and restrictions affecting the Property; not to commit or
permit waste thereof; not to commit, suffer or permit any act upon thc P~ opcrty tn violation of law; to do all other acts which from the
character or use of the Property may be reasonably necessary, the specific cnmnerations herein not excluding the general; to observe and
perform all obligations of Mortgagor under any lease of the Property.
~- ' '*ASN 1324 (10-01) ' '~"~:'~'!:"~3~!?}' '
Real Estate Mortgage, Flxtu;;;3:qhng and Security Agreement
(Page 2 of 7)
3. To provide, maintain and delivei'ib 'Mortgagee fire and all other types ot' insurance of tg~;;~pe and in amounts as Mortgagee may require,
with loss payable clauses solely in favor of Mortgagee. In the event of I,xs, fi~e insurance proceeds, or any part thereof, may be applied
by Mortgagee, at its option, to the reduction of the indebtedness hereby ~,ccurcd or to the restoration or repair of the property damaged.
In the event that the Mortgagor shall fail to provide satisfactory ha/ard insurance, Mortgagee may procure, on Mortgagor's behalf,
insurance in favor of Mortgagee alone. If insurance cannot be secured t/y Mortgagor to provide the required coverage, such inability
shall constitute an event of default hereunder.
To appear in and litigate any action or proceeding purporting to affect Ibc security hereof, the title to the Property, or the rights or powers
of Mortgagee; Mortgagee may appear in and litigate any' such aclion or proceedings, including any bankruptcy, partition or
condemnation proceeding, affecting the Property, or Mortgagee's interest Lherein, in which event Mortgagor agrees to pay all costs and
expenses thereof, including attorney's fees and costs of securing evidence
To pay on or before the due date all taxes and assessments affecting thc ['~operty, including all assessments upon water company stock
and all rents, assessments and chai'ges for water, appurtenant to or u~cd in connection with the Property; to pay, when due, all
encumbrances, charges, and liens, on the Property or any part thereof, which at any time appear to be prior or superior hereto.
In case of any suit to foreclose this Mortgage or to collect any charge arising out of the debt hereby secured, or of any suit which the
Mortgagee may deem necessary to prosecute or defend to effect or prmcc[ fi~e lien herein, including any proceeding in bankruptcy, or if
Mortgagee retains an attorney to advise Mortgagee in connection with this Mortgage or any other agreement related to the indebtedness
secured by this Mortgage, Mortgagor agrees to pay a reasonable sum as a(torney's fees and all costs and legal expenses in connection
with said suit, and further agrees to pay the reasonable costs of searching The records and abstracting or insuring the title, and such sums,
costs and expenses shall be secured hereby and shall be included in any decree of foreclosure. The fees and costs described herein and
elsewhere in this Mortgage shall be in addition to those set forth in Lhe 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 fur 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 deem necessary to protect the Property, Mortgagee being authorized to enter
upon the Property for such purposes; commence, appear in and litigate any action or proceeding purporting to affect the security hereof
or the rights or powers of Mortgagee, including any bankruptcy proceeding affecting the Property; pay, purchase, contest, or compromise
any encumbrance, charge or lien which in the judgment of either appe:,'g to be prior or superior hereto; and in exercising any such
powers, incur any liability, expend whatever amounts in its absolute discretion it may deem necessary therefore, including attorney's,
accountant's, and appraisal fees, environmental fees, and costs of scct~ring evidence of title, and all amounts so expended shall be
obligations of Mortgagor secured by this Mortgage. Nothing contained herein shall prohibit Mortgagee from entering the Property, at a
reasonable time and upon reasonable notice to Mortgagor, without metaling 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 the provisions hereof, with interest from date of
expenditure at the same rate as is provided for in the note or notes seemed by this Mortgage. In the event that such sums are not
immediately paid, they shall be added, along with the appropriate amount of capital stock or participation certificates, to the principal
balance of the indebtedness secured hereby and shall accrue interest as hc~cin set forth. All such sums shall be secured hereby.
9. Environmental Representations, Warranties and Covenants.
(a) Except as disclosed in writing to Mortgagee, or except as otherwise provided in any loan agreement between Mortgagee and
Mortgagor which specifically refers to the Property, to the best knowledge of Mortgagor after due inquiry, Mortgagor hereby further
represents, warrants and covenants as follows:
(i) No pollutants, contaminants (inc!uding oil or other petroleum products), toxic or hazardous substances, or solid or hazardous
wastes, as such terms are defined under any federal, state or k,cal Environmental Law, regulation or ordinance (hereinafter
"Contaminants") have been, are being or will be generated, m:tnuI:actured, produced, stored, disposed of, discharged, released
threatened to be released, or otherwise allowed to migrate or e,cape on, under or from the Property in such quantities or
concentrations as would violate any federal, state or local Environmental Law, regulation or ordinance or as would require
Mortgagor to report such condition to any governmental authorit3 or to undertake removal or remedial action to clean up such
contaminants;
(ii) No Contaminants are located on, in or under any property located adjacent to the Property in such quantities or concentrations
as would constitute a violation of any Environmental Law or as wotdd require the owner of the adjacent property to report such
condition to any governmental authority or to undertake removal t,r t emcdial action to clean up such Contaminants;
(iii) Neither the Property, nor any portion thereof, nor any adjacem property or portion thereof, has been or is proposed to be listed
under the Comprehensive Environmental Response, Compensatimq and Liability Act (42 U.S.C. Section 9601, et seq.), or any
analogous state law. Mortgagor shall immediately notify Mortgagee il' Mortgagor acquires any information concerning the listing
or proposed listing of the Property or any adjacent property anti shall provide Mortgagee with any documents in Mortgagor's
possession relative thereto;
*ASN 1324 (lO-6~,~,,-'.E4?ate Mortgage, Fixture Filing and Security Agreeme;'d
: "iPage 3 of 7)
(iv) No hazardous wastes, as defined under the Federal Resource ('~mscrvation and Recovery Act (42 U.S.C. Section 6901, et seq.),
or any analogous state law ("Hazardous Wastes"), have been. mc being or will be stored or treated in surface impoundments or
other structures or facilities located on the Property that are parn:d ) or entirely below the ground surface;
(v) No litigation, investigation, administrative order, conscm o~dcr, agreements, or other action, proceeding or settlement
(hereinafter "Action") has previously been brought, is now pending, or to the best knowledge of Mortgagor threatened against or
anticipated by Mortgagor, with respect to Mortgagor's use o~ mam~gcment of Hazardous Materials or Hazardous 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 .\ciion and provide Mortgagee with copies of all docmnentation
relative thereto; and
(vi) Except as disclosed in writing to Mortgagee, no underground tanks, wells (except domestic water wells), septic tanks, ponds,
pits or any other storage tanks ("Tanks") (whether currently in usc or abandoned) are or were located on or under the Property and
no Tanks are or were servirig the Property described herein. Wilh respect to any Tanks disclosed' in writing to Mortgagee,
Mortgagor shall comply with all federal, state and local laws, regulations and ordinances and any requirements of city or county fire
departments, applicable to the maintenance and use of such T;,nks, including, without limitation, Title 40 of the Code of Federal
Regulations Part ! 12.
(b) Nothing herein shall be deemed to prohibit Mortgagor from (i) using, handling or storing hazardous materials or substances, as
defined under any federal, state or local law, regulation or ordinance ("llazardous Materials") or (ii) storing or treating non~hazardous
wastes, so long as such activities are carried out (a) in a good and htt~bamllike manner in the ordinary course of business, and (b) in
compliance with all applicable environmental laws, regulations, pem~its, orders or other requirements.
(c) In the event that Mortgagor is in breach of any of its representations, wm'ranties or covenants as set forth above, Mortgagor, at its sole
expense, shall take all action required, including environmental cleanup of the Property, to comply with the representations, warranties
and covenants herein or applicable legal requirements and, in any cxcnt, shall take all action deemed necessary by appropriate
governmental authorities. Mortgagee shall have the right, but not thc 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, deffnd, protect, and hold harmless Mortgagee, its directors, officers,
employees, agents, shareholders, successors and assigns and their officc~ ~, employees or agents, from and against any and all claims, suits,
damages, liens, losses, liabilities, interest, judgments, response and cleanup costs, demands, actions, causes of action, injuries,
administrative proceedings and orders, consent agreements and orders, penalties, costs and expenses (including any fees and expenses
incurred in enforcing this indemnity, any out-of-pocket litigation cosls and the reasonable fees and expenses of counsel) of any kind
whatsoever ("Claims") paid, incurred or suffered by, or asserted agains~ Mortgagee, including but not limited to Claims arising out of
loss of life, injury to persons, trespass or damages to or contamination of property or natural resources, or injury to business, in
connection with or arising out of the activities of Mortgagor on the Property, Mortgagor's predecessors in interest, third parties who have
been invited, permitted or trespassed on the Property, or parties in a contractual relationship with Mortgagor, or any of them, or which
directly or indirectly arise out of or result from or in any way connected x~ ilh thc Property, whether or not caused by Mortgagor or within
the control of Mortgagor, including without limitation: (i) the presence, usc, generation, treatment, storage, disposal, release, threatened
release, or discharge of any Hazardous Material or Contaminant at or fi'om the Property and/or the cleanup of Hazardous Materials or
Contaminants within, on or under the Property; (ii) Mortgagor's breach of' ~,ny of the representations, warranties and covenants contained
herein; and (iii) Mortgagor's violation or alleged violation of any applicable Environmental Law, regulation or ordinance.
(e) Mortgagor's representations, warranties, covenants and indemnities contained herein shall survive the occurrence of any event
whatsoever, including without limitation the payoff of any promissory nolo(s) secured hereby, the release or foreclosure of this Mortgage,
the acceptance by Mortgagee ora deed in lieu of foreclosure, or any transfer or abandonment of the Property.
(f) The term "Environmental Law" shall mean any federal, state or local law, statute, ordinance, or regulation, now in effect or
hereinafter enacted, pertaining to health, industrial hygiene, or the em ironmental conditions on, under or about the Property, including
but not limited to enactment~ requiring the removal or containment of asbestos-containing materials in private buildings.
(g) Mortgagor shall permit, or cause any tenant of Mortgagor to pemfik 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 tm, under or about the Property, (ii) the existence, location, nature,
magnitude and spread of any Hazardous Materials or Hazardous Waste that has been spilled, disposed of, discharged or released on,
under or about the Property, or (iii) whether or not Mortgagor mid any tenant of Mortgagor is in compliance with applicable
Environmental Law. If Mortgagor or its tenants fail to comply full)' with the terms 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 Mortgagor as the basis for obtaining grazing permits
or Other grazing rights issued by any governmental agency, including without limitations the Forest Service, U.S. Department of
Agriculture or the Bureau of Land Management, U.S. Department of lnlcrior, Mortgagor covenants and agrees as follows:
(a) Said grazing permits or other rights are in good standing and have m~l been modified, reduced or limited in any other respect, except
as fully disclosed in writing to Mortgagee:
[ '[i~S-N- 1324 (10-01) Real Estate Mortgage, Fixtu~::~i~iling and Security Agreement
(Page 4 of 7)
..... 0 ',o
(b) Mo.gagor will perfo~ all obngations imposed as a requirement of cxt'rc,se of safd it=lng pe~its or other ri~hl~a~ ~11 comply
with all laws, rules and regulations applicable thereto;
(c) Mortgagor will take such timely action as may be required to cause Ire r¢.ewal or reissuance of said grazing permits or other rights
from time to time as they expire during the term thereof. Mortgagor a:.ces and acknowledges that the failure to renew or cause the
reissuance of any said permits for any reason, whether the result of an acl o~ t.n~ssion of Mortgagor or for reasons beyond Mortgagor's
control. ~s an event of default hereunder and Mortgagee shall have the righl ~o exercise the rights hereinafter set forth in this Mortgage;
and
(d) Mortgagor agrees to pay all fees, charges, rents or other payments ~,ccruing 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 ~n connection with any taking or condemnation t. i ~jt.'y to the Property by reason of public use, or for damages
resulting from private trespass or injury to the Property, is absolutely anti tmconditionally assigned and shall be paid to Mortgagee. under
the terms and conditions of this Mortgage pertaining to Rents. Upon reccq~t of such money Mortgagee may apply the same on the
indebtedness secured hereby. Mortgagor agrees to execute such furthc~ documents as may be required to effect the assignments herein
made as Mortgagee may reqmre.
At any time. without affecting the liability of any person for the paymcnl of the indebtedness secured hereby, and without otherwise
affecting the security hereof, Mortgagee may (a) consent to or join m thc making of any map or plat of the Property; (b) grant any
easement or create any restriction thereof; (c) subordinate this Mortgage; (ti) 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 purposes only, collect and receive the Rents as
they come due and payable; the Rents are to be applied by Mortgagor Io Ifc payment of the principal and interest and all other sums due
or payable on any promissory note or guaranty secured by this Morlgage 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 perst,n, 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, enter upon and take possession of the Property or any
pan thereof, in his own name, sue for or otherwise collect such rents, iss.es and profits, including those past due and unpaid, and apply
the same, less costs and expenses of operation and collection, includi,g ~easonable attorney's fees, upon any indebtedness secured
hereby, and in such order as Mortgagee may determine; also perfom~ such acts of repair, cultivation, irrigation or protection, as may be
necessary or proper to conserve the value of the Property; also lease the s~,ne or any part thereof for such rental, term, and upon such
conditions as its judgment may dictate; also prepare for harvest, remove, ami 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 hereumM' o~' invalidate any 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 sums
secured hereby shall immediately become due and payable at the option of the Mortgagee and in accordance with applicable state law. In
the event of default, Mortgagee may employ counsel to enforce paymcnl of the obligations secured hereby, may foreclose and, if
applicable, sell the Property by advertisement and sale, and in accordance x~ith other applicable state law, and may exercise such other
rights and remedies granted by law and equity, which rights and remedies shall be cumulative and not exclusive. Mortgagee may resort
to and realize upon the security hereunder and any other real or personal i.'operty security now or hereafter held by Mortgagee for the
obligations secured hereby in such 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 sex'ct'al consolidated or independent judicial actions or lawful
nonjudicial proceedings, or both. If the obligation secured by this Mt,'lg~ge 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 permitted by applicable law. All remedies are cumulative and none are exclusive; no election by Mortgagee
to pursue one remedy or item of collateral shall be 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 anti pc. form 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 Property is located. Nothing contained herein shall be construed to provide that the substantive law of the state in
which the Property is located shall apply to Mortgagee's rights and Mor~gagor's obligations hereunder or under the promissory note(s) or
guaranties described herein, which are and shall continue to be governed by the substantive law of the state in which the promissory
note(s) or guaranties were executed.
6. The failure on the part of the Mortgagee to promptly enforce any right hc~'ctmder shall not operate as a waiver of such right and the
waiver by Mortgagee of any default shall not constitute a waiver of a% t. her subsequent defaults. Subsequent acceptance of any
payment by the holder hereof shall not be deemed a waiver &any default by Mortgagor, or of Mortgagee's rights hereunder as the result
of any sale, agreement to sell, conveyance, or alienation, regardless ol' holder's knowledge of such default, sale, agreement to sell,
conveyance, or alienation at the time of acceptance of such payment.
*ASN 1324 (10- te Mortgage, Fixtu~'e Filing and ~ ' ' ~!ii:~?,i;i::i~ ' '? i~ii~
~eeunty Agreeme~,:/-~.~.'~:,',~ '~!~!' ':~Page 5 of 7)
This Mortgage applies to, inures to the benefit of, and binds all panics hereto, their heirs, legatees, devisees, administrators, executors,
successors and assigns. The term Mortgagee shall mean the holder and m~ner of any note secured hereby; or, if the note has been
pledged, the pledgee thereof. In this Mortgage, whenever the context so reqtzires, the masculine gender includes the feminine and/or
neuter, and the singular number includes the plural. All obligations of gh,rtgagor hereunder are joint and several.
(a) In the event the herein-described Property, or any part thereof, o,' any interest therein, is sold, agreed to be sold, conveyed, alienated or
transferred, including any water transfer as defined in subsection (b) bclmv, by Mortgagor, or by operation of law or otherwise, except by
inheritance, without Mortgagee's prior written consent, all obligations scculcd hereby, irrespective of the maturity dates, at the option of
the holder hereof, and without demand or notice, shall immediately bcc,m~c due and pa~;able. Failure to exercise such option shall not
constitute a waiver of the fight to exercise this option in the event of subscq,ent sale, agreement to sell, conveyance or alienation.
(b) A water transfer is any transfer, assignment, sale, exchange, girl, cacumbrance, pledge, hypothecation, alienation, grant of option to
purchase, or other disposition of, directly, indirectly or in trust, voluntm ily or involuntarily, by operation of law or otherwise, or the entry
into a binding agreement to do any of the foregoing with respect to all or any part of (i) the groundwater on, under, pumped 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 governmental authority or agency and any righls granted or created by any easement, covenant, agreement or
contract with any person or entity, (iii) any rights to which the Prope~t3 is entitled with respect to surface water, whether such right is
appropriative, riparian, prescriptive or otherwise and whether or not pul suunt to permit or other governmental authorization, or the right
to store any such water, (iv) any water, water right, water allocation, disu ibulion right, delivery right, water storage right, water allocation,
or other water-related entitlement appurtenant or otherwise applicable tt~ flic 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
company, or other non-governmental entity, or (v) any shares (or an y ~ h~s under such shares) of any private water company, mutual
water company, or other non-governmental entity pursuant to which Mor,gagor or the Property may receive any rights.
In the event any one or more of the provisions contained in this Mortgage or m any promissory note(s) hereby secured shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such nvalidity, 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 lhcrcin.
10, Borrower releases and waives all rights under and by virtue of the homestead exemption laws of Wyoming.
BORROWER WAIVES ALL RIGHTS OF HOMESTEAD EXEMPTION IN THE PR( H'I,~RTY AND RELINQUISHES ALL RIGHTS OF CURTESY AND
DOWER IN THE PROPERTY.
KENNETH W. COOK
~A~i~ COOK - '
ORIS COOK RANCH, a Limited Partnership
ORIS K. COOK, Trustee of THE ORIS K. COOK
FAMILY LIVING TRUST, dated October 25, 2000,
General ;artn~ .
KENNETH W. COOK, General Partner
Notary Acknowledgment:
STATE OF WYOMING )
SS.
COUNTY OF LINCOLI)]
On this 2 8 .t~y of MAY ,20 0 4, before mc, thc undersigned Notary Public in and for said County and State,
personally appeared KENNETH W. COOK and NANETTE COOK [~('~'personally known to me] [( ) proved to me on the basis of satisfactory
evidence] to be the person(s) whose name(s) are subscribed to this instrument and acknowledged m me that they executed it.
WITN¥SS m) hund aik]\official seal
Notar~ Public' m and for said Cou~t~ ~d
*ASN 1324 (10-01] Real Estate Mortgage, Fixtu. ~ ,.iling and Secufi~ A~eement '~ ..
(Page 6 of 7)
Notary Acknowlecl~m'n~nt:
STATE OF ~t~O~NG )
SS.
COUNTY OF -T.~NCOI,N )
Onthis28t-h:layof IfAY 20 04 ,beforeme, the undersigned Nt,ia, t't, blic ~n and for said Countyand State, personally appeared
ORIS K. COOK, Trustee of THE ORIS K. COOK FAM1LY LIVING TRUST, dated ( )ca d)cr 25. 2000 and KENNETH W. COOK [( ) personally known
-to me] [( ) proved to me on Ihe basis ofsafi.~f~tory evidence] to be the person(s) who uxccutcd the within.instrument as GENERAL PARTNERS of the
parmership Iherein named, on behalf of the parmership, and acknowledged to me that thc ixu'mcrship executed it.
WITNESS/my [laud and'Off}cia] seal
Nolary Public iu ;~ ~d tar said County and State
*ASN 1324 (10-0~'~-1g.~; ~:.~mm Mortgage, Fixture Filing and Security Agreemen'i
(liage 7 of 7)
EXHIBIT
Tract 38 of Resurvey (formerly the Southwest quarter of the Southeast quarter of
Section 34), Township 25 North, Range 119 West of the 6th P.M., Lincoln County,
Wyoming
Also
Beginning at lhe quarter section comer on the North ine of Section 4 Township 24
North, Range 119 West of the 6th P.M., Lincoln County, Wyoming, being the Northeast
comer of Lot 3 in said Section 4, and running thence South 745 ~ feet, more or less, to
the North bank of the Twiss Irrigation Ditch; thence, along the Nodh bank of said ditch on
a course about South 73°25' West 1054 feet, more. or less. to a stake; thence along said
Nodh bank about Soubh 30"01' West 573 feet, more or less, to West line of said Lot 3;
thence South 257 feet, more or less, to the North bank of the Kinney Irrigation Ditch;
thence Southwesterly along the North bank of said Kinney Irrigation Ditch, lo the West
line of said Section 4; thence Northwesterly along t r,e North bank of said ditch about 210
feet to an iron stake near the Old Onyx Mill (said stak, e is South 51°00' West from the
Northeast corner of said Lot 3 about 3540 feet); thc;nco running South 25"50' West 208.7
feet: thence North 64°10' West 208.7 feet; thence North 25°50' East 208.'7 feet to a post
on the North bank of said Kinney Irrigation Ditch (and taking in one acre of ground
around and including Old Onyx Mill); thence running Northwesterly along the North and
Eastedy bank of said Kinney Irrigation Ditch to the North line of Section 5 in Township 24
North, Range 119 West; and thence F_asterly along said Nodh section lines to the
Northeast corner of said Lot 3, and place of beginning
Excepting therefrom the following described tract to-wit:
A tract of land located in Tract 104, Township 24 Nodh, Range 119 West of the 6*h P.M.,
Lincoln County, Wyoming, being more particularly described as follows:
Commencing --,it the Northeast comer of said Tract 104 thence South 89"50' West,
1334.61 feet along the North line of said Tract 104 mence South 0"10'00" East, 1263.43
feet to the point of beginning of the tract herein described, thence South 6"19'41" West,
480.00 feet; thence South 74"04'05" West, 171 87 feet; thence South 50"11'34" West,
155.07 feet; thence North 59°56'26'` West, 173.93 feet; thence North 7'~30'38'' West,
61.40 feet; thence North 0°17'09'' West, 150.00 feet. thence North 56°45'17" East,
593.80 feet, more or less to the point of beginning
Also
All of Tract 45 except that part described as follows Beginning at a point designated as
2145 of Tract 45, Township 25 North, Range 119 West, Sixth Principal Meridian,
Wyoming and running thence West 302 feet more or less to the center -of the present
state highway; thence South 11°55' East along the middle of said state highway m the
West line of Tract 42; thence North to point num[)er 5/45; thence East 39,75 chains to
corner number4; thence North D"54' East 19.68 chains to corner number 3; thence West
39.90 chains t~ comer number 2 and point of beginmng
Also
PAGE 1 OF 3
CDmmencing at Comer No. B/45 in Tract .45, Township 25 North, Range 119 West of the
~h Principal Meridian, and running thence NOrth 9° West 527 feet, thence North 42° ]East
104 feet, thence North ;37" West 104 feet, thence West 184 feet to the Oregon Short
Line Railroad right of way, thence South 10°39` East 693 feet along the East Boundary
ef the Oregon Bhort Line Railroad Company'.~ ngh~ of way, thence South t39"30' East
130 feet to the place of beginning
Also
A parcel of land situate within the Western most portion of Resurvey Tract 1134 of
Township 24 North, Range 119 West of the 6th Princ pal Meridian, described in particular
as follows to wit:
Beginning at C~3mer No. 3 ef said Tract 11)4; thence South 89°40, East, 13.03 chains
along the Southern boundary of said Tract 104 to the Western boundary of the land
deeded to the San Francisco Sulphur Company as described on Page 88 of Book 18 of
the Lincoln County Deeds; thence North 27"3' East. 2,97 chains tDa point on the
Northeasterly bank of the Kinney Irrigation Ditch a meander point on said Western
boundary; thence meandering Northerly on the Northeasterly bank of said Irrigation
Ditch; North 62°1' West 9.03 chains; North ~_6°25' West 7.76 chains; North 11°3' West
8.81 chains; North 6°36, East, 10.86 chains to the Northern boundary of said Tract 1D4;
tl3ence South §9'50' West, 2.51 chains to Corner No 4 of said Tract 104; thence South
33.18 chains to the point of beginning
Also
All of Tract 48, Township 25 North, Range 119 West of the 6tn Principal Meridian, Lincoln
County, Wyoming
Al~o
That part of Tract 105, Township 24 North, Range 119 West; lying East of the present
Wyoming State Highway known as 30 North excepting a parcel of land situate within the
boundaries of Resurvey Tract No, 1135, q-ownship 24 North Range 119 West of the 6th
P.M.; said parcel of land forming a p~rtion of the r~ght of way for U.S. Highway No. 30
North, as shown in particular upon the plat of the survey for F.A.P. No. 34 Section "A' by
the Wyoming State Highway Department as follows to wit: Beginning at a point on the
South boundary line of said Tract 107 from whence corner No. 2 of Tract 105 Df said T.
& R. bears South 89=20' ~ast, 1258.~, feet; thence North 89°20' West 153.4 feet; thence
North 11°5R' West. 2.211.9 feet; thence North 89°50' East, 153.2 feet along the North
b~)undary line ~3f said Tract 105; thence South 11 '58' East 2214.4 feet to the place ef
beginning
Also
Tract ~9 Df Resurvey (formerly the Northeast ~; Southeast ~, Section .2.7; North
Southwest ~,~, NorIhwest ~ Southeast ~, Section .%) Township 25 North, Range 1
West. lincoln County, Wyoming
PAGE 2. OF 3
Excepting therefrom I~nds conveyed to Keith Cornia by :deed recorded 12-8-1989, at
9ook281PR, Page 113, re-recorded 10-28-1992, a~ Book 319PR, Page 506:
Parcel 2
-that part of Tracts zt6 and 49 within Sections 33 and 34, of -r25N, R119W, _Lincoln
County, Wyoming, being part of that tract of record in the Office of the Clerk of Lincoln
County in ;Book 325 of Photostatic Records on page 34, lying and being situated
northerly of the following described line:
BEGINNING at a point on the east line of said Tract 46. S00°47'24"W, 'the base bearing
for this survey and description, 2543.98 feet, of Corner No 1 of said Tract46, said point
being at the intersection of a fence bearing nonnwest/southeast with a fence bearing
south from said Comer No. 1; said south-bearing fence being the best current evidence
of said East line of Tract 46;
q'hence coursing said northwest/southeast fence s c fo t lows:
N39"45'07'W, 300,81 feet, to a point;
N38°15'59"W, 337.20 feet, to a point;
N42°00~49"W, 641.05 feet, to a point, and leave said fence;
q-hence NS§'1§'25"W, 878.80 feet, to a point si the intersection nfa fence bearing
north/south and fence bearing westerly;
-I-hence coursing said westerly fence as follows:
N78"40'28"W, 347.14 feet, to a point;
S82"13'1 l"W, 52§.b"7 feet, to a point;
N86-55'08"W, 736.14 feet, to a point;
SSD'42'D5"W, 261.42 feet, to a paint at the intersection of said fence with a fence
beating north/south;
q'hence N05°23'12''E, 415.33 feet, along said norm/south fence to a point:
Thence NBB'"36'57"VV, 554.96 feet, to a point;
Thence continuing N88°36'57"W, 167 feet, more or less, to the west line of saidTract49
TOGETHER WITH THE FOLLOWING WATER RIGkIT.q REGISTERED WITH THE STATE OF WYOMING
DEPARTMENT OF WATER RESOURCES:
Water Permit4~1065-E for 1.64 cfs of Irrigation Waler from S~nith's Fork with a priority dale of May30, 1903
Water Permit4t5081Efor 1.17 cfs of Irrigation Water from ~lnith's Fork with a priority date of August26, 1937
Territorial Water Right for 12.42 cfs of Irrigation Water frt.,m Smith's Fork with a priority date. of June 10, 1885
Territorial Water Right :for 6_21 cfs of Irrigation Water fi'on~ S m ith's Fork with a priority date of June 16, 1887
Page 3 o1'3