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HomeMy WebLinkAbout906192Recording Requested by: WHEN RECORDED MAIL TO: Western AgCredit, FLCA P.O. Box 95850 South Jordan, Utah 84095-0850 RECEIVED 1/31/2005 at 4:17 PM RECEIVING# 906192 BOOK: 578 PAGE: 144 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER WY Loan No. 0637101501 REAl, ESTATE MORTGAGE, FIXTURE FILING AND SECURITY AGREEMENT THIS MORTGAGE is made this .18t.h day of January, 2005 between JULIAN LAND & LIVESTOCK CO., a Wyoming Corporation hereinafter called "Mortgagor", and Western AgCredit, FLCA 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 future water fights, however evidenced, including irrigation and watering equipment and systems, ditches, laterals, conduits, and rights-of-way used to convey such water or to drain the above-described property, all of which rights are hereby made appurtenant to the property, and all pumping plants, electrical generators, wind machines, and fencing and storage tanks, now or hereafter used in connection with the property, all of which are hereby declared to be fixtures; all existing and future grazing rights, leases, permits and licenses; all oil, gas, and mineral leases, permits and rights used with the property; all tenements, hereditaments, easements, rights-of-way and appurtenances to the property; and all fight, 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 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 the term(s). The term "water" includes water fights and fight 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, including Whatever rights are achieved by depositing one's shares of any Water Assets in any water bank or with any water authority, or any other water reallocation rights: a. All water (including any water inventory in storage), water rights and entitlements, other rights to water and other fights to receive water or water rights of every kind or nature whatsoever including (i) the groundwater on, under, pumped fiom or otherwise available to the Property, whether as the result of groundwater rights, contractual fights or otherwise, (ii) Mortgagor's fight to remove and extract any such groundwater including any permits, rights or licenses granted by any governmental authority or agency or any rights granted or created by any use, easements, covenant, agreement or contract with any person or entity, (iii) any fights 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 authohzation, or the right to store any such water, (iv) any water, water right, water allocation, distribution fight, 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 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 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 administrative relief in any way relating to any water or Water Asset; e. All storage and treatment fights 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 or usable 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 Water Assets by any means wherever located; *ASN 1324 (10-Ii??: ~7!:!` }?Jate Mortgage Fixture Filing and Security Agreemen.5~ig;;,;{~:!;!~[:~ : ' i'age I o/' 6) 0145 g. All guaranties, warranties, marketing, management or service contracts, inden'mity agreements, and water right agreements, other water related contracts and water reallocation rights, all insurance policies regarding or relating to any Water Asset; h. All rents, issues, profits, proceeds and other accounts, instruments, chattel paper, contract fights, general intangibles, deposit accounts, and other rights to payment arising 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), nonuse, sale, lease, transfer or disposition of any kind of any water or any other Water Asset subject to a lien in favor of Mortgagee. That assignment shall be perfected automatically without appointment of a receiver or Mortgagee becoming a mortgagee in possession and Mortgagee shall have the right, before or after the 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. Except as otherwise agreed in writing by Mortgagee, Mortgagee may apply any such collection (and any rents, issues, profits and proceeds) to any indebtedness owed to 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, power and authority given to and conferred upon Mortgagor by Paragraph B.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 further, grants to Mortgagee all of the rights and remedies ora secured party under the Uniform Commercial Code and other applicable state law, which rights are cumulative. FIXTURE FILING -,- This Mortgage shall also be deemed to be a fixture filing under the 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 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 Amount 1/18/2005 1/1/2035 $400,000.00 (2) The payment of such additional loans or advances, including advances under a revolving line of credit, with interest thereon, as hereafter may be made to 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 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 loans or advances shall recite that it is to be secured by this Mortgage; (3) the payment of any substitute notes, renewals, reamonizations, and extensions of all indebtedness secured by this Mortgage; (4) the performance of every obligation and agreement of Mortgagor whether contained or incorporated by reference in this Mortgage, or contained in any loan document or guaranty executed by Mortgagor in favor of Mortgagee, 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 thereon 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: 1. 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 Adnfinistration, now existing or as hereafter amended. To keep the Property in good condition, working order and repair; care for the Property in accordance with standards of good husbandry and to keep all trees, vines and crops on said land properly cultivated, irrigated, fertilized, sprayed, and fumigated; not to remove, destroy or suffer the removal or destruction of any building, fence, canal, well or other improvements or fixtures thereon; not to remove, replace or alter any horticultural or viticultural tree, vine or shrub planted thereon without the prior written consent of Mortgagee, except in the ordinary course of business; to complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged or destroyed thereon; to comply with all laws, covenants and restrictions affecting the Property; not to coma-nit or permit waste thereof; not to commit, suffer or permit any act upon the Property in violation of law; to do all other acts which from the character or use of the Property may be reasonably necessary, the specific enumerations herein not excluding the general; to observe and perform all obligations of Mortgagor under any lease of the Property. 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 by Mortgagee, at its option, to the reduction of the indebtedness hereby secured or to the restoration or repair of the property damaged. *ASN 1324 (10-01) Real Estate Mortgage, Fixture Filing and Security Agreement (p;ag¢ 2 ~f6) In the event that the Mortgagor shall fail to provide satisfactory hazard insurance, Mort§agee may procure, on Mortgagor's behalf, insurance in favor of Mortgagee a~one. If insurance cannot be secured by 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 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 event Mortgagor agrees to pay all costs and expenses thereof, 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, assessments and charges for water, appurtenant to or used 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 protect the lien herein, including any proceeding in bankruptcy, or if Mortgagee retains an attorney to advise Mortgagee in connection with this Mortgage or any other agreement related to the indebtedness secured by this Mortgage, Mortgagor agrees to pay a reasonable sum as attorney's fees and all costs and legal expenses in connection with said suit, and 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 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 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 appears 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 securing evidence of title, and all amounts so expended shall be obligations of Mortgagor secured by this Mortgage. Nothing contained herein shall prohibit Mortgagee from entering the Property, at a reasonable time and upon reasonable notice to Mortgagor, without 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 the 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 amount of capital stock or participation certificates, to the principal balance of the indebtedness secured hereby and shall accrue interest as herein set forth. All such sums shall be 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, wan'ants and covenants as follows: (i) No pollutants, contaminants (including oil or other petroleum products), toxic or hazardous substances, or solid or hazardous wastes, as such terms are defined under any federal, state or local Environmental Law, regulation or ordinance (hereinafter "Contaminants") have been, are being or will be generated, manufactured, produced, stored, disposed of, discharged, released threatened to be released, or otherwise allowed to migrate or escape 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 authority 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 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 listing or proposed listing of the Property or any adjacent property and shall provide Mortgagee with any documents in Mortgagor's possession relative thereto; (iv) No hazardous wastes, as defined under the Federal Resource Conservation and Recovery Act (42 U.S.C. Section 6901, et seq.), or any analogous state law ("Hazardous Wastes"), have been, are being or will be stored or treated in surface impoundments or other structures or facilities located on the Property that are partially or entirely below the ground surface; *ASN 1324 (l 0-~ :'}::!!'_~2 i!.~i~tate Mortgage, Fixture Filing and Security :'i :(i'itPa~e 3 of 6) '.-'-0!47 (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 anticipated by Mortgagor, with respect to Mortgagor's use or management of Hazardous Materials or Hazardous Wastes or the environmental condition of the Property, including any underlying groundwater. Upon learning thereof, Mortgagor shall inzmediately notify Mortgagee of any such Acti6n or threatened Action and provide Mortgagee with copies of all documentation relative thereto; and (vi) Except as disclosed in writing to Mortgagee, no underground tanks, wells (except domestic water wells), septic tanks, ponds, pits or any 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 the 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 any requirements of city or county fire departments, applicable to the maintenance and use of such Tanks, including, without limitation, Title 40 of the Code of Federal Regulations Part 112. (b) Nothing herein shall be deemed to prohibit Mortgagor from (i) 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 carded out (a) in a good and husbandlike manner in the ordinary course of business, and (b) in compliance with all applicable environmental laws, regulations, permits, orders or other requirements. (c) In the event that Mortgagor is in breach of any of its representations, warranties 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 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, 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 costs and 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, 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 with the Property, whether or not caused by Mortgagor or within the control of Mortgagor, including without limitation: (i) the presence, use, generation, treatment, storage, disposal, release, threatened release, or discharge of any Hazardous Material or Contaminant at or from the Property and/or the cleanup 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 violation of any applicable Environmental Law, regulation or ordinance. (e) Mortgagors representations, warranties, covenants and indemnities contained herein shall survive the occurrence of any event whatsoever, including without limitation the payoff of any promissory note(s) secured hereby, the release or foreclosure of this Mortgage, the acceptance by Mortgagee of a 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 environmental conditions on, under or about the Property, including but not limited to enactments requiring the removal or containment of asbestos-containing materials in private buildings. (g) Mortgagor shall permit, or cause any tenant of Mortgagor to permit, Mortgagee or its agents, or independent contractors to enter and inspect the Property at any reasonable time for purposes of determining, as Mortgagee deems necessary or desirable: (i) the existence, location and nature of any Hazardous Materials or Hazardous Wastes on, under or about the Property, (ii) the existence, location, nature, 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 and any tenant of Mortgagor is in compliance with applicable Environmental Law. If Mortgagor or its tenants fail to comply fully 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 perrnits 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 Interior, Mortgagor covenants and agrees as follows: (a) Said grazing permits or other rights are in good standing and have not been modified, reduced or limited in any other respect, except as fully disclosed in writing to Mortgagee: (b) Mortgagor will perform all obligations imposed as a requirement of exercise of said grazing permits or other rights and will comply with all laws, rules and regulations applicable thereto; *ASN 1324 (10-01) Real Estate Mortgage, Fixture Filing and Security Agreement * iPa'ge 4 of 6) -0 48 (c) Mortgagor will take such timely action as may be required to cause the renewal or reissuance of said grazing permits or other rights fi.om 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 permits for any reason, whether the result of an act or omission of Mortgagor or for reasons beyond Mortgagor's control, is an 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 hyJhis Mortgage and shall be immediately due and payable. i ~iS M~TUALLY ~RrEED ~i~;~~; ~Any award o~dam~a~co~eciioa~ith-a~y taking or conde~ation or in'u to the Pro e b reason of ublic , { ..... :~..'-tt~/~;.W-14,"~,~,,~., r ........ ~, ~ . . . ~ ~ P ~ y p use or for damages resum~-~~¢-~p~l~ tropeS, ~s absolutely and unconditionally asm~ed and shall be paid to Mortgagee, under the te~ and conditions of this Mortgage pertaining to Rents. Upon receipt of such money Mortgagee may apply the same on the indebtedness secured hereby. Mortgagor a~ees to execute such further documents as may be required to effect the assi~ments herein made as Moagagee may require. 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 purposes only, collect and receive the Rents as they come due and payable; the Rents are to be applied by Mortgagor to the payment of the principal and interest and all other 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, enter upon and take possession of the Property or any part thereof, in his own name, sue for or otherwise collect such rents, issues and profits, 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 indebtedness 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 same or any part thereof for such rental, term, and upon such conditions as its judgment may dictate; also prepare for harvest, remove, and 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 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 payment of the obligations secured hereby, may foreclose and, if applicable, sell the Property by advertisement and sale, and in accordance with other applicable state law, and may exercise such other fights 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 property 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 several consolidated or independent judicial actions or lawful nonjudicial proceedings, or both. If the obligation secured by this Mortgage is also secured by personal property, fixtures or crops, Mortgagee 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 and perform in full all obligations to Mortgagee. The procedures governing the enforcement by Mortgagee of its foreclosure and provisional remedies against Mortgagor shall be governed by the laws of the state 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 Mortgagor's obligations hereunder or under the promissory note(s) or guaranties described herein, which are and shall continue to be governed by the substantive law of the state in which the promissory note(s) or guaranties were executed. The failure on the pan of the Mortgagee to promptly enforce any right hereunder shall not operate as a waiver of such right and the waiver by Mortgagee of any default shall not constitute a waiver of any other subsequent defaults. Subsequent acceptance of any payment by the holder hereof shall not be deemed a waiver of any default by Mortgagor, or of Mortgagee's fights hereunder as the result of any sale, agreement to sell, conveyance, or alienation, regardless of holder's knowledge of such default, sale, agreement to sell, conveyance, or alienation at the time of acceptance of such payment. 7. This Mortgage applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The term Mortgagee shall mean the holder and owner of any note secured hereby; or, if the note has been *ASN 1324 (10-~?~ ~:k~i:~.~iate Mortgage, Fixture Filing and Security ^greemeL?'i':!Si~;~:;;{ii- ' ' ' -:i · :~.iqi~e 5 of 6) pledged, the pledgee thereof. In this Mortgage, 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. 8. (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 transfer, assignment, sale, exchange, gift, encumbrance, pledge, hypothecation, alienation, grant of option to purchase, or other disposition of, directly, indirectly or in trust, voluntarily 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 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 store 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 company, 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. 9. In the event any one or more of the provisions contained in this Mortgage or in any pron'fissory note(s) hereby secured shall for any reason be held to be invalid, illegal or unenforceable in any 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. 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 PROPERTY AND RELINQUISHES ALL RIGHTS OF CURTESY AND DOWER IN THE PROPERTY. Signature(s): JULIAN LAND & LIVESTOCK CO., a Wyoming Corporation TRUMAN D. JULIAN, Presit~ MARIE ~RJLIAN, Secretary Notary Acknowledgment: STATE OF WYOMING ) SS. COUNTY OF LINCOL~ On this 3'] ~ +day of J'anua ry 20 0 5 , before me, the undersigned Notary Public in and for said County and State, personally appeared TRUMAN D. JULIAN and MARIE JULIAN [( ) personally known to me] [( ) proved to me on the basis of satisfactory evidence] to be the person(s) who executed the within instrument as PRESIDENT and SECRETARY, or on behalf of the corporation therein named, and acknowledged to me that the corporation executed the within instrument pursuant to its by-laws or a resolution of its board of directors. ¢ UNTY OF ~ STATE OF t LINCOLN ~ wYoMING Notary Public in and for said County and State *ASN 1324 (10-0l) Real Estate Mortgage, Fixture Filing and Security Agreement ~ (Page 6 of 6) EXHIBIT "A" Parcel 1 - Angelo Place-" T20 N, R1 t7W, 6tn P.M., Wy.omin~. S~ection 7: W1/2NEl/4, Ei/2NW1/4, Tract 37, Lot 2 (formerly SWt/4NW1/4) T20N, RllSW, .6t" P.M. Wyom~ Se'"--ction 12:SEI/4NEI/4 Section 13: El'/2SElI4, SW1/4SEl/4 Section 24: NW1/4NWI/4, NW1/4NEI/4 Rock Creek- T22N, R118W,'6"' P.M., Wyoming;. Section 17: W1/2NEI/4, NWt/4, Wl/2SElI4, SWl/4 Section 18,: El/2SE1/4 Section 19:El'/2NEl/4 Section 20: W1/2NE1/4, NWl/4 Collett Place- T21N, Rt 19W, 6t.h_ P.M., W¥omir~g: Section 11:Nl/2 Section 12: W1/2NWl/4, NWI/4SWI/4 Section 23: SW1/4NEI/4, NWI/4SEI/4, El/2SWl/4 Section 26:NWl/4NWI/4 And also that parcel of land lying within the boundaries of the S1/2SW1/4, SWl/4SE1/4, Section 2, T21N, R119W, 6"~ P.M., Wyoming; said parcel of land generally described as the land lying between the southerly boundary line of the right of way of the Oregon Short Line Railroad Company, and the southerly boundary line of said Section 2 within the boundaries of the aforesaid subdivisions of the public survey. Said parcel being more generally described by metes and bounds as follows, to-wit: Beginning at the Southwest Corner of said Section 2, thence N0*5'W, 738.7 feet along the westedy boundary line of the Oregon Short Line Railroad Company; thence S80o47'E, 4,015.7 feet along said southerly boundary line of the Oregon Short Line Railroad Company to its intersection with the easterly boundary line of the SW1/4SE1/4 of said Section 2; thence S0"7~/, 95.5 feet along said easterly boundary line up to its intersection with the southerly boundary line of said Section 2; thence West, 3,962.6 feet along said southerly boundary line to the Southwest Corner of said Section 2, the place of beginning T23N, R116W, 6~ P.M., Lincoln Co. unty, Wyoming: Section 21: NEI/4SWI/4, NWi/4SEI/4 Section 22': W1/2SWl/4, NEI/4SWI/4, El/2NE1/4, SW1/4SElI4 Section 23: WI/2SWl/4, NEi/4SW1/4 Section 28: S1/2SWl/4. Sl/2NWl/4 Section 33: NI/2SWi/4, NE1/4NWi/4 T23N, .RI 16W, 6"' .P.M., Lincoln Cognt¥, Wyoming: Section 21: S1/2SW1/4, ,SE1/4SElI4 Section 22: NWI/4SEI/4, SEl/4SE114 Seotion 26:NEI/4NWI/4 Section 28:NEI/4SWI/4 Section 33:W1/2NWl/4 T23N, R116W, 6t~ P.._M., Lincoln C.ounty, Wy0. min,q: Section 2!: NElt4SEI/4 Section 22: Section 23: Section 26: Section 28: Section 33: SE1/4SW1/4, NEI/4SEI/4 SE114SWt/4, E1/2NE1/4, SWI/4NEI/4, SE1/4 NEI/4NE1/4, SWI/4NEI/4, NWI/4NE1/4, SE1/4NWII4 NWi/4SWI/4, NEI/4NW1/4 SEI/4NWI/4 T22N, R116W, 6~' P.M.j Lincoln County, W¥ominq: Section 2: Lots 1, 6, 7 and N1/2SE1/4 Section 11: Lots 5, 6, 11, 12, 13, 14, 22, 23, 24, 25 Section 14: Lots 2, 3, 10, 11 T21N, R11.8W .6'h P.M..., Lincoln County, Wyomin¢:t: Section 14: SWI/4NEI/4, S1/2NWl/4 Section 15:SEI/4NEI/4 Section 20: NE1/4, N1/2SE114, SEI/4SE1/4, NE1/4SW1/4 Section 21: E1/2NE1/4, SEl/4, $1/2SWl/4 Section 29:NEI/4NE1/4 Parcel 2- County of Lincoln, State of Wyoming Township 23 North, Range 115 West, 6th .P..M. Section 19; Lots 15, 16 Section 30: Lots 5, 6, 15, 16 Township 23 North, Range 116 West, 6th P.M, Section 24: ElI2SEI/4, SW1/4SE1/4, SE1/4SW1/4 Section 25: NWl/4NEI/4, E1/2NE1/4, NEI/4SE1/4, W1/2NW1/4, N1/2SWl/4 Lots 1, 4, 5 Section 26: SEI/4NEI/4, NEI/4SEI/4, Lot 1 PAGE 2 OF 3 Parcel 3- County of Lincoln, State of Wyoming Township 22 North, Range 115 West, 6th..P,M. Section 6 '. Section 7: Section 8: Section 18: Section 19: Lots 4, 5, 6, 7, E1/2SW1/4, SE1/4 Lots 1, 2, 3, 4, NE1/4, NE1/4SE1/4 NWl/4NW1/4, NW1/4SW1/4 Lots 1, 2 Lots. 1, 2 Township 22 North, Range ! 16 West, 6th P.M. Section 1 · Section 12: Section 13: Section 24: Lots 3, 4, NE1/4SWl/4, El/2 Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, E1/2NE1/4 E1/2SE1/4 Lots 1, 2, 5, O, 7, 8, 10, 11, 15, 16, 17, E1/2E1/2, W1/2SE1/4 Lot 5, NE1/4 TOGETHER WITH the right to the following described water registered with the State of Wyoming Department of Water Resources: Permit No(s). 10836 for .6 acre-feet of Reservoir (stock) from Beachler Creek; 10838 for .23 acre-feet of Reservoir (stock) from Dry Hollow Creek; 10839 for .23 acre-feet of Reservoir (stock) from Beachler Creek; 36036 for 47 acre-feet of Reservoir from Twin Creek; 3309 for 135.9 acre-feet of Reservoir from Twin Creek; 62386 for Well water; 36027 for .29 cfs of flow (Cash Ditch) from Buyer Creek; 8925 for .27 cfs of flow from Twin Creek; 8929 for .80 cfs of flow from Buyer Creek; 8926 for .10 cfs of flow from S..Twin Creek; 8930 for .37 cfs of flow from Buyer Creek; 8931 for .42 cfs of flow from S. Twin Creek; 8932 for .96 cfs of flow from S. Twin Creek; 65 for flow from Rock Creek; 14128 for .94 cfs of flow from Rock Creek; 14129 for .57 cfs of flow from Rock Creek; 14130 for .24 cfs of flow from Rock Creek; 36384 for .26 cfs of flow from Rock Creek; 1569 for well (domestic) water; 14150 for .44 cfs of flow from Collett Creek; and 14149 for .71 cfs of flow from Collett Creek. ALSO TOGETHER WITH AND INCLUDING TWO (2) SHARES of stock in ROCK SPRINGS GRAZING ASSOCIATION. ALSO TOGETHER WITH AND INCLUDING all U.S. Bureau of Land Management grazing privileges within the CUMBERLAND FLATS (NORTH BLAZON) allotment, TWIN CREEK allotment, ANGELO allotment, COLLETT CREEK allotment, OYSTER RIDGE allotment, POMEROY BASIN allotment, CARTER LEASE allotment, ROCK CREEK allotment, SAWMILL allotment, and EIGHTEEN MILE allotment. ALSO TOGETHER WITH AND INCLUDING all U.S. Forestry grazing privileges within the DEVILS HOLE allotment, SAMS ALLEN CREEK allotment, ELK CREEK allotment, LAKE MOUNTAIN allotment, INDIAN CREEK allotment, SOUTH FONTENELLE allotment, BASIN CREEK allotment, and GREEN KNOLL allotment in the BRIDGER-TETON NATIONAL FOREST.