LOAN AGREEMENT
This Agreement is made this 23, day of, 2000, by and between WILLOW SPRINGS
RANCH, LLC, a New Mexico limited liability company, and BANK MIDWEST, NA, a
national banking corporation.
Borrower proposes to acquire a certain tract of land in Xxxxxxx County New
Mexico, more particularly described on Exhibit A (Property).
Borrower has requested that Lender advance funds to complete the acquisition of
the Property and to pay a loan fee to Lender, and Lender has agreed to make such
funds available to Borrower, subject to the terms and conditions contained
herein.
The purpose of this Agreement is to provide the terms and conditions upon which
the funds will be made available.
The parties hereto, intending to be legally bound, hereby agree as follows:
1. DEFINITIONS. The following words and terms will for the purposes of this
Agreement have the meanings set forth below:
o BORROWER: Willow Springs Ranch, LLC, a New Mexico limited liability
company.
o ADVANCE: the initial advance of loan proceeds, in the amount of
$2,293,200.00.
o EVENTS OF DEFAULT: the occurrences listed in Paragraph 18 of this
Agreement.
o GUARANTOR: Amortibanc Management, L.C.
o GOVERNMENTAL AUTHORITY: any governmental authority and includes the
United States, the State of New Mexico, the County of Xxxxxxx, and any
political subdivision of any of the foregoing, and any agency,
department, commission, board, bureau or instrumentality of any of the
foregoing which exercises jurisdiction over the property or the
construction thereon.
o HAZARDOUS MATERIALS: any flammable explosives, radioactive materials,
hazardous wastes, toxic substances, or related materials including,
but not limited to, substances defined as "hazardous substances" in
the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, 42 U.S.C. Section 9601, ET SEQ.; the Hazardous Materials
Transportation Act of 1975, 49 U.S. C. Section 1801, ET SEQ.; the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section
6901, ET SEQ.; and those substances defined as
"Hazardous waste" in the New Mexico Hazardous Waste Act, Section
74-4-1, ET SEQ. N.M.S.A. (1978); the New Mexico Radioactive and
Hazardous Materials Act, Section 74-4A-1, ETSEQ. N.M.S.A. (1978); the
New Mexico Emergency Management Act, Section
74-4B-1, ET SEQ. N.M.S.A. (1978); the New Mexico Hazardous Waste
Feasibility Study-Act, Section 74-4C-1, ET SEQ.,N.M.S.A. (1978); in
any amendments to said statutes; in the regulations adopted pursuant
to said statutes; or substances defined as "hazardous substances" in
any other federal, state or local statute, law, ordinance, code, rule,
regulation, order, or decree regulating, relatmig to, or imposing
liability or standards of conduct concerning, any hazardous, toxic, or
dangerous waste, substance, or material, as now or at any time
hereafter in effect.
o LENDER: Bank Midwest, NA and any successor in interest, assign, or any
subsequent holder or assignee of the Note.
o LOAN: such sums of money as Borrower may from time to time request and
Lender may lend, solely for the purposes authorized under this
Agreement, up to an aggregate amount not to exceed Two Million Three
Hundred Forty Thousand Dollars ($2,340,000.00).
o LOAN DOCUMENTS: this Loan Agreement, the Note, the Mortgage and any
other document executed by Borrower in connection with this Loan.
o LOAN FEES: the loan origination fee to be paid to Lender at closing in
the amount of Forty-six Thousand Dollars($46,000.00).
o MORTGAGE: the Mortgage executed by Borrower contemporaneously herewith
in favor of Lender to secure the Note and creating a first lien
against the Property.
o NOTE: the promissory Note executed by Borrower contemporaneously
herewith in favor of Lender, in the principal sum of Two Million Three
Hundred Forty Thousand Dollars ($2,340,000.00) with interest as stated
therein.
o PARTIAL RELEASE: Release of less than all the Property from the lien
of the Mortgage.
o PROPERTY: the real estate in Xxxxxxx County, New Mexico, as more
particularly described on Exhibit "A" attached to the Mortgage.
o RELEASE AMOUNT: the greater of: 60.0% of the gross sales price of the
Release Parcel; or $85.00 per acre.
o RELEASE PARCEL: a part of the Property as to which a Partial Release
is requested or is granted.
2. DESCRIPTION OF LOAN. Subject to -all the terms and conditions hereof,
Lender agrees to lend to Borrower, and Borrower agrees to borrow from Lender a
loan (Loan) not to exceed the amount of Two Million Three Hundred Forty Thousand
Dollars ($2,340,000.00).
2.1 Interest and principal shall be payable on the Loan as set forth in
the Note.
2.2 The loan will consist of a Note representing funds to be used for the
following purposes only:
o disbursement in the sum of Two Million Two Hundred Ninety three
Thousand Two Hundred Dollars ($2,293,200.00) at closing to be
used for the purchase of the Property.
o the Loan Fee in the amount of $46,0W00.
o Lender's expenses in connection with the Loan.
3. TERM. The Note shall be due five (5) years from the date thereof
4. INTEREST RATE. The Note shall bear interest at four percentage point over
the weekly average yield on United States Treasury securities adjusted to the
constant maturity of one year (as made available by the Federal Reserve Board)
in effect 45 days prior to the date of the Note and each Rate Adjustment Date
(as defined below). The Note Rate shall be calculated on the date of the Note
(using the Index value most recently published on or prior to the closing date)
and on each anniversary of this Note thereafter (each of which is a "RATE
ADJUSTMENT DATE"). If the Index is no longer available, Lender will choose a new
index which is based upon comparable information. All interest shall be
calculated for the actual number of days elapsed over a year assumed to consist
of 360 days.
5. SECURITY FOR THE LOAN. The Loan shall be secured by:
o This Agreement, together with the assignments and such other documents
as may be provided for herein;
o The Mortgage, attached as Exhibit B;
o The Guaranty of Guarantor guaranteeing to Lender the performance of
the obligations of Borrower hereunder in the form attached as Exhibit
C
6. BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to Lender, its successors and assigns, that:
6.1 As of Closing, Borrower will be the sole owner of the Property and
will have the power and authority to own, convey, mortgage, pledge or
otherwise encumber the Property or any part thereof, to execute and
deliver to Lender the Note, the Mortgage, this Agreement and all other
documents provided for herein.
6.2 There is no action, suit or proceeding pending or to the knowledge of
Borrower threatened against or affecting Borrower or the Property
before any court or any governmental department or agency which could
result in any material adverse change in the business or condition of
Borrower. To the best of Borrower's knowledge it has complied with all
applicable statutes and regulations of all governmental authorities
having jurisdiction over it and the Property, and is not in default
with respect to any order, writ, injunction or decree of any court or
governmental agency. There is, to the best of Borrower's knowledge, no
claim against Borrower except immaterial claims arising in the
ordinary course of business. Borrower has good and marketable fee
title to the Property and except for current real estate taxes not due
and payable at the date hereof, the Property is not subject to any
encumbrance or lien of any kind, except for the Mortgage.
6.3 Borrower is not a party to any contract or agreement or subject to any
legal restriction of any kind which would materially and adversely
affect the business, properties, assets or condition, financial or
otherwise, of Borrower, and neither the execution and delivery of the
Note, the Mortgage or other security instruments by Borrower, nor the
compliance by Borrower with the terms, conditions and provisions of
this agreement, will conflict with or result in a breach of or
constitute a default under any agreement or other instrument to which
Borrower is a party or by which Borrower is bound or result in the
creation or imposition of any lien, charge or encumbrance of any
nature whatsoever upon the Property.
6.4 The advances pursuant to the terms of this Agreement will be utilized
solely in accordance with the provisions hereof
6.5 Borrower, at the time of execution hereof, is a duly organized New
Mexico limited liability company. Lender hereby consents to Borrower
changing its name so long as Borrower immediately notifies Lender of
such new name.
If any of the representations and warranties contained in this Section 6 is not
true and correct, Lender shall be relieved of its obligation to disburse any of
the Loan proceeds and notwithstanding anything to the contrary contained in the
Note, Lender may at its option immediately accelerate the maturity of the Note
and avail itself of all rights and remedies provided by law or by the terms of
the Mortgage, this' Agreement and all other documents executed by Borrower to
secure repayment of the Loan.
7. CONDITIONS PRECEDENT TO MAKING OF ADVANCES. As conditions precedent to the
making of advances hereunder:
7.1 Borrower shall have executed and delivered to Lender the Note for Two
Million Three Hundred Forty Thousand Dollars ($2,340,000.00), and the
mortgage, security agreement and assignments and other documents
provided for herein, each in form and substance satisfactory to
Lender, and the Mortgage and financing statements filed in the
appropriate records.
7.2 The Guaranty, executed by Guarantor unconditionally guaranteeing to
Lender the performance of Borrower shall have been executed and
delivered to Lender.
7.3 No event shall have occurred or failed to occur which would be a
default under this Agreement, the Mortgage, the Note, the Guaranty or
the assignments and other documents provided for herein, or which with
the passage of time or service of notice or both would constitute such
a default.
7.4 First American Title Insurance Company (Title Insurer) shall issue a
policy of title insurance insuring the Lender or its assigns for the
amount of Two Million Three Hundred Forty Thousand Dollars
($2,340,000.00) that the ~en of the Mortgage, is a first lien on the
Property, subject only to such exceptions as are approved by Lender.
Such insurance shall be issued on the standard ALTA Loan Policy form,
and shall include, INTER ALIA, coverage against filed and unfiled
mechanics liens, and a comprehensive endorsement (ALTA Form 9).
7.5 Borrower shall have provided Lender with an opinion of Borrower's
legal counsel, at Borrower's expense, with respect to the following
issues: a) Borrower has been duly organized and is in good standing
under the laws of Borrower's state of organization; b) the terms of
the Note are not usurious; c) the Default Rate is enforceable; and d)
the choice of law, venue, jury trial I waiver, and arbitration
provisions are fully enforceable. Borrower shall also provide to
Lender an opinion of counsel satisfactory to Lender that the Guaranty
of Guarantor is enforceable- according to the terms thereof Such
opinion shall also state that Guarantor has been duly organized and is
in good standing under the laws of Guarantor's state of organization.
The opinion shall include other matters which are customary in similar
loan transactions.
7.6 Borrower shall have delivered to Lender a survey of the property
complying with the standards of the American Land Title Association
and the American Cong-ress of Surveyors and Mappers, and Lender shall
be satisfied, in its absolute discretion, that the survey reveals no
condition which it believes adverse to Lender's interest.
7.7 Borrower shall have obtained the following insurance in form, in
amounts and with companies approved by Lender and shall have delivered
to Lender certificates therefor and evidence of payment in full of the
premiums thereon:
o Comprehensive Public Liability Insurance, including Bodily Injury
and Property Damage, with limits of at least One Million Dollars
($ 1, 000, 000. 00) per person, Two Million Dollars
($2,000,000.00) per occurrence.
o Insurance against such other hazards as may be reasonably
required by the Lender.
All such policies shall contain the agreement of the insurer that it will
endeavor to give not less than thirty (30) days prior notice to Lender in the
event of cancellation and shR11 otherwise comply with the applicable provisions
of the Mortgage.
8. PARTIAL RELEASE OF MORTGAGE. Subject to the release conditions set forth
below, Borrower may request Partial Releases from time to time. Upon
satisfaction of the conditions stated below, Lender will release its lien on the
Release Parcel.
8.1 Lender shall have received the Release Amount (as defined below)
applicable thereto;
8.2 Borrower shall not be in default with respect to any interest payment
on the Note;
8.3 The proposed sale of the Release Parcel must be an arms-length sale
transaction to an unaffiliated third party, unless Lender otherwise
consents in writing to the sale;
8.4 No Event of Default -shall exist under the Loan Documents;
8.5 The remaining portion of the Premises that is not being released shall
be in compliance with all applicable laws, including without
limitation, applicable subdivision, zoning, and land use laws;
8.6 If requested by Lender, Borrower shall obtain at Borrower's expense
updated surveys covering the Release Parcel and/or the unreleased
portion of the Premises, and cause to be issued a down-dated title
endorsement covering the unreleased portion of the Premises;
8.7 Borrower shall make written request at least 10 days prior to the date
upon which the release is requested; and
8.8 Borrower shall pay all costs related to the analysis, preparation, and
filing of any release documentation, including a release fee to Lender
in the amount of $ 100. 00.
The payment of the Release Amount shall not affect the amount or due date of any
regularly scheduled payments under the Note, except to the extent the principal
balance OUTSTANDING UNDER the Note affects the computation of a new payment
amount on the next Rate Adjustment Date. The Release Amount may be changed by
Lender if Borrower re-plats or further subdivides the Premises.
9. CONTINUING OBLIGATIONS OF BORROWER. The Borrower agrees, so long as any
principal or interest remains outstanding under the Loan:
9.1 Borrower shall keep, at its expense, adequate records and books of
account with respect to its business and the Property in form and
content reasonably acceptable to Lender. Borrower shall permit Lender
and its employees, agents, accountants, and attorneys to examine and
make extracts from
Borrower's records and books at such. reasonable times as Lender may
request.
9.2 Borrower shall keep Lender informed on a timely basis of any
substantive or material change in the financial condition of the
Borrower, and to provide annual financial statements of Borrower and
Guarantor to Lender. Borrower and Guarantor shall provide copies of
federal income tax returns within ten days of filing.
9.3 Borrower shall provide Lender copies bf. a) Borrower's financial
statements, which have been certified by Borrower, within 45 days
after the end of each fiscal year, or more frequently upon Lender's
reasonable request; b) copies of an), audited Financial statements
prepared for Borrower promptly upon completion thereof, which shall be
represented by Borrower's accountants as either compiled, reviewed, or
audited; and c) Borrower's annual federal and state tax returns, with
all schedules attached, within 20 days after filing with the taxing
authorities. Financial statements shall include at least a balance
sheet dated within 90 days of the date 6f Lender's request, a profit
and loss or income and expense statement for the most recent calendar
year and the partial year, if any, to the date of the balance sheet, a
statement of all contingent liabilities as of the date of the balance
sheet, cash flow statements, and all other financial information
reasonably requested by Lender, all in form and content reasonably
satisfactory to Lender. If one company, business, or entity represents
10% or more of Borrower's income or assets, the financial statements
of the company, business, or ; entity shall be attached to the
affected statements.
9.4 Borrower shall maintain liability insurance on the Property as
required herein and in the Mortgage.
9.5 Borrower shall deliver to Lender such additional *information as
Lender may reasonably require.
9.6 Borrower shall promptly pay when due any and all taxes, assessments
and governmental charges upon the Property.
9.7 Borrower shall promptly pay when due all lawful claims, whether for
labor, material or otherwise, which might or could, if unpaid, become
a lien or charge on any of its property or assets.
9.8 Borrower shall keep adequate records, *in accordance with generally
accepted accounting practices, consistently applied, of all of its
transactions, so that at any time, and from time to time, its true and
complete financial condition may be readily determined and to, upon
request, make such records available for Bank's inspection during all
business hours.
9.9 Borrower shall maintain its existence and promptly comply with all
laws, statutes, ordinances and governmental regulations applicable to
it or any of its property, business operations, transactions.
9.10 Borrower shall maintain the Property and all of its tangible property
in good condition and repair and make all necessary replacements
thereof.
9.11 Borrower shall promptly pay all reasonable costs, fees and expenses
paid and incurred by Lender incident to the Loan Documents and related
documents (including reasonable attorney's fees).
9.12 Borrower shall promptly inform Lender of any litigation, or any claim
or controversy which might become the subject of litigation, against
Borrower or affecting Borrower's property if such litigation or
potential litigation might, in the event of an unfavorable outcome,
have a material adverse effect an Borrower's financial condition, or
might cause an Event of Default.
10. ADVANCES. Subject to all the provisions of this Agreement, the Loan
represented by the Note shall be advanced as follows:
o An initial advance in the amount of $2,293,200.00.
o sums payable by Borrower to Lender under this Agreement.
11. IMMUNITY. No part of the commitment of Lender to make advances hereunder
shall at any time be subject or liable to attachment or levy at the suit of any
creditor of Borrower or Guarantor or any agent, contractor, subcontractor or
supplier of Borrower. Lender shall not be liable to any materialman, contractor,
or subcontractor, laborer or others for services, labor or materials employed
upon, furnished or delivered to the Property.
12. USE OF PROPERTY. Borrower shall not allow the manufacture, storage,
transmission, presence or disposal of any hazardous, nuclear or toxic waste or
substance contamination (Hazardous Material) on the Property. In the event that
Lender is held liable in any way for any Hazardous Material on the Property,
Borrower hereby agrees to indemnify and hold Lender and successors and assigns
harmless from any and all such liability.
13. LENDER NOT PARTNER OF BORROWER. Notwithstanding anything to the contrary
herein contained or implied, Lender, by issuance of any commitment letter for
the Loan, or by this Agreement, or by any action pursuant thereto or hereto,
shall not be deemed a partner or joint venturer with the Borrower, and the
Borrower hereby indemnifies and agrees to defend and hold Lender harmless
(including the payment of reasonable attorney's fees) from any and all damages
resulting from such a construction of the parties' relationship. The
requirements herein, and the restrictions imposed in this Agreement, are for the
sole protection and benefit of Lender.
14. COSTS. All costs incurred by the Lender in the preparation of this
Agreement, the Note, the Guaranty, the Mortgage, and all other documents
required to be executed by Borrower hereunder (including attorneys' fees), the
making of any advance of the Loan, review of all documents or the enforcement of
this Agreement, shall be paid by Borrower.
15. EVENTS OF DEFAULT. The occurrence of any of the following events shall be
an "Event of Default":
15.1 Default shall be made in making any payment on the Note when the same
shall become due and payable, subject to any applicable grace period.
15.2 A failure to perform or pay when due any other obligation, covenant,
representation, warranty, or agreement under the terms of any Loan
Document in strict accordance with the terms and provisions thereof
15.3 The occurrence of any default under any other promissory note,
guaranty, security document, agreement, or loan document executed by
Borrower and owned by Lender at the time of default.
15.4 A Claim of Lien shall be filed against the Property and not canceled
or released within ten (10) days from the date of notification to
Borrower of filing.
15.5 Borrower shall fail to perform any other term or condition of this
Agreement or default shall be made under any other agreement made to
secure payment of the Note.
15.6 The occurrence of any default under'any other promissory note,
guaranty, security document, agreement, or loan document executed by
Borrower and owned by Lender at the time of default.
15.7 The appointment of a trustee, receiver, or liquidator for Borrower,
Guarantor, or any surety, or the Property.
15.8 Lender's loss, in part or in whole, of any benefits granted to it
under the Guaranty for any reason, including but not limited to losses
arising from the giving of any notice or the filing of any action by
any person to: a) challenge any term of anyGuaranty, or b) limit,
reduce, or discharge any liability or obligation of any Guarantor.
15.9 The occurrence of any change in Borrower's ownership or management-
without Lender's prior written consent, which consent will not be
unreasonably withheld or delayed.
15.10 The occurrence of any of the following with respect to Borrower,
Guarantor, or the Property: a) the imposition of any lien or other
similar encumbrance; b) the issuance of any garnishment, attachment,
levy, or any other form of execution; or c) the entry of a material
adverse judgment by a court having jurisdiction. 7
15.11 Borrower, Guarantor, or any surety: a) -making an assignment for the
benefit of creditors; b) filing a voluntary proceeding seeking
protection from creditors under any bankruptcy or other law; c)
becoming the subject of an involuntary proceeding under any bankruptcy
or other similar law, which is not dismissed within sixty days or d)
making an admission of its inability to pay its debts generally as
they become due.
15.12 Borrower shall transfer ownership of any interest in the Property
(including lease of any portion of the Property for a term of one year
or more) except as provided herein.
15.13 Borrower subjects the Property to any lien inferior to that of the
Mortgage.
15.14 The material falseness of any statement, warranty, or representation
when given or made by Guarantor or Borrower to Lender or any such
statement, warranty, or representation becoming materially false at
any time when any portion of the Loan remains outstanding, or any:
fraud committed by Guarantor, Borrower, or any partners, shareholders,
members or other owners of Borrower or Guarantor in connection with
the procurement, processing, funding or servicing of the Loan.
15.15 The occurrence of any default under any document executed by Borrower
which: a) is owned by any person other than Lender; and b) constitutes
a lien on the Property (no permission for creation of such liens being
implied).
15.16 A determination by Lender in good faith~ that there has been a
material decline in the value of the Property. For purposes of this
subsection, a material decline shall not have occurred until such
time, if any, as the value of the Property is less than 110. 0% of the
then outstanding principal balance of the Loan.
15.17 A violation, whether discovered or asserted before or after closing,
of any federal, state, or local law, rule, regulation, or order issued
by a governmental agency or court which would or could have a material
adverse impact on Borrower's business or properties (including without
limitation the Property) including but not limited to: a) any
provisions of the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, or any similar law which prohibits or
restricts the storage, maintenance, or discharge of hazardous
materials or waste, or b) any provisions of the Americans with
Disabilities Act of 1990 or any similar federal, state, or local law
imposing requirements relating to the accessibility of buildings or
structures to persons with disabilities.
In every such case, Lender, subject to the rights of notice and cure set forth
in Section 16, in Lender's discretion may declare immediately due and payable,
with interest, all monies advanced hereunder and accordingly accelerate payment
of the Note, notwithstanding any contrary terms of payment stated therein;
The remedies herein provided for shall be in addition to and not in substitution
for the rights and remedies which would otherwise be vested, in Lender in law or
equity or under the Note or the Mortgage, all of which rights and remedies are
specifically reserved by Lender, and the failure by Lender to exercise the
remedies herein provided shall not preclude the resort to any other remedy or
remedies, nor shall the exercise of the remedies herein provided prevent the
subsequent or concurrent resort to any other remedy or remedies which by law or
equity shall be vested in Lender for the recovery of damages or otherwise in the
event of a breach of any of the undertakings of Borrower hereunder. No delay or
omission by Lender in exercising any right or remedy accruing upon the happening
of an Event of Default shall impair any such right or remedy or shall be
construed as a waiver of any such default; and every right and remedy hereby
conferred upon Lender may be exercised from time to time and as often as shall
be deemed
expedient by Lender. No waiver of any Event of Default shall extend to or affect
any other Event of Default.
16. NOTICES AND RIGHTS TO CURE. Borrower shall have the right to cure any
payment default within 10 days following the due date. Borrower shall have the
right to cure any non-payment Event of Default within 20 days following the date
of Lender's notice of default to Borrower except for the Events of Default
described in Sections 15.10-15.14 hereof, for which no notice and right to cure
shall be given.
17. Notices. All written notices in connection with the Mortgage, this
Agreement or otherwise which may be given-by Lender shall be.deemed to have been
properly given if - mailed by registered or certified mail or delivered to-..
BORROWER: WILLOW SPRINGS RANCH LLC
c/o Amortibanc Management, LLC
0000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xx 00000
Attn: Xxxxxx X. Xxxxxxxx, Vice President
LENDER: BANK MIDWEST, NA -
X.X. Xxx 00000
Xxxxxx Xxxx, Xx 00000-0000
Attn: Xxxx X. Xxxxxx, Vice President
18. LENDER HELD HARMLESS. The Borrower shall indemnify and hold Lender harmless
from any and all loss or damage of whatsoever kind and from any suits, claims,
or demands, including Lender's reasonable legal fees and expenses, on account of
any matter or thing arising out of this Agreement or in connection herewith
except the malfeasance or negligence of Lender. This obligation shall survive
completion of the Improvements and repayment to Lender of the Loan.
19. CESSATION OF INTEREST; FUNDS AVAILABILITY; SETOFF. Upon: a) the occurrence
of an Event of Default in payment of the Note, and until such time as such Event
of Default is cured pursuant to the terms of the Loan Documents. or b) the
occurrence of an Event of Default for which no right to cure is permitted (as
set forth in the "Right to Cure" section hereof), Lender shall have no
obligation to: i) pay interest upon any funds kept by Borrower on deposit with
Lender, regardless of the form of deposit or account involved, and whether or
not the Loan Documents require any affected fund's to be maintained on deposit,
and/or ii) disburs6 to Borrower, or on Borrower's behalf or re quest, any of
such funds. Interest will begin to accrue upon affected deposits and accounts
and funds will be fully available to Borrower upon completion of cure of the
Event of De fi, ult during any applicable grace or cure period provided for in
the Loan Documents. During the existence of any Event of Default, and followin
the expiration of any applicable grace or cure period provided for 9 in the Loan
Documents, Lender shall have the right to immediately set off any such funds and
apply them in reduction of the sums due to Lender under the Loan Documents.
Lender may implement such procedures from time. to time as may assist Lender in
the exercise of the rights granted above. The foregoing provisions shall not
limit any other rights or remedies Lender may have under applicable law or by
separate agreement.
20. BORROWER'S ASSIGNMENT. This Agreement may not be assigned by Borrower.
Pending consummation of the terms of this Agreement and as long as the Loan is
outstanding, there shall be no transfer of title to the Property without the
prior written consent of Lender, except as provided in this Agreement.
21. INDEMNITY. Notwithstanding any exculpation or other limitation or liability
agreed to herein or in the documents evidencing the Loan, Borrower shall
indemnify Lender against any liability, loss, cost, damage or expense
(including, without limitation, reasonable attorneys' fees) arising from:
o the imposition or recording of a lien~ by any local, state or federal
government or governmental agency or authority pursuant to any
federal, state or local statute or regulation relating to hazardous or
toxic wastes or substances or the removal thereof (Cleanup Laws);
o claims of any private parties regarding violations of Cleanup Laws;
and
o costs and expenses incurred by Lender in connection with the removal
of any such lien or in connection with Borrower's or Lender's
compliance with any statute, regulation or order issued pursuant to
any Cleanup Laws by any local, state or federal government or
governmental agency or authority.
22. WAIVER OF RIGHT TO TRIAL BY JURY. Lender and' Borrower hereby waive any
right to trial by jury of any claim, demand, action or cause of action (a)
arising under the Loan or any Loan Document or (b) in any way connected with or
related or incidental to the dealings of the parties hereto in respect of the
Loan or any of the Loan Documents or any transactions related hereto or thereto;
in each case, whether now existing or hereafter arising and whether in contract,
tort, equity or otherwise. Lender and Borrower hereby agree that any such claim,
demand, action or cause of action, to the extent not cognizable in arbitration,
shall be decided by court trial without. a jury and that either mortgagor or
beneficiary may file a copy of this Loan Agreement with any court as written
evidence of the waiver of the right to trial by jury.
23. MISCELLANEOUS. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the Lender and the successors and
permitted assigns of Borrower. Except with the prior written consent of Lender,
Borrower shall not assign, convey, transfer, or further encumber any interest
which it may have under this Agreement or the property. This Agreement may not
be modified or amended except by a written Agreement duly executed by the
parties hereto or their successors or assigns. Time is of the essence in respect
of Borrower's obligations hereunder. In the event of any inconsistency between
this Agreement and the provisions of any other document executed simultaneously
herewith, the provisions of this document shall control.
The parties hereto have executed this Agreement as of the day and year first
above written.
Borrower: WILLOW SPRINGS RANCH, LL C, a New Mexico limited liability company
By: Amortibanc Management, L.C.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, Vice President
Lender: BANK MIDWEST, NA, a national banking corporation
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Xxxx X. Xxxxxx, Vice President
EXHIBIT A
CIENEGA RANCH LEGAL DESCRIPTION
parcel of land being the North part of the XXXXX XXXXXXXXXX XXXXX NO. 34,
lying north of Interstate Highway 25,
connsisting of the following PROJECTED SECTIONS:
Part of 7, 8, 9, 10,15, 16, 21, 28 and 33, and all of 17, 18, 19, 20, 29, 30, 31
and 32 of T5S, R1W, NMPM;
Part of 7, 8, 9, 10, 11 and 12 and all of 00 - 00 xx X0X, X0X, NMPM;
Part of 12, 13, 24, 25 and 36, T5S, R3W, NMPM;
Part of 5, 7, 8, and 18 and all of 6 of T6S, R1W, NMPM;
Part of 13-14, 22-24,-27-28 and 33 and all of 1-1-2,- 1 &~21 and 29-32,
T68,-R2W, NMPM;
Part of 2,11, 13, 14, 24, 25 and 36 and all of 1 and 12 of T6S, R3W, NMPM;
Part of 0-0 xxx 00 xx X0X, X0X, NMPM;
Part of 1 of T7S, RW, NMPM;
within Xxxxxxx County, New Mexico and being more particularly described as
follows:
Beginning at corner 1, the NW corner and stone monument at the NW corner of
the XXXXX XXXXXXXXXX XXXXX NO. 34
marked "Ads NWC";
Thence S 89(Degree) 38' 15" E, a distance of 4784.10 feet to corner 2, a
stone monument (marking unclear);
Thence S 89(Degree) 50'52" E, a distance of 2573.51 feet to corner 3, a
stone monument (marking unclear);
Thence S 89(Degree) 0608" E, a distance of 2600.48 feet to corner 4, a stone
monument (unmarked);
Thence N 89(Degree) 17'59" E, a distance of 53.71 feet to corner 5, a stone
monument marked "l 9" (19 mile);
Thence S 89(Degree) 38'47" E, a distance of 5268.46 feet to corner 6, a stone
monument (unmarked);
Thence S 88(Degree) 43'09" E, a distance of 28.78 feet to corner 7, a stone
monument (unmarked);
Thence S 89(Degree) 31'41 " E, a distance of 5238.00 feet to corner 8, a stone
monument (unmarked);
Thence S 88(Degree) 22' 41 " E, a distance of 38.80 feet to corner 9, a stone
monument (unmarked);
Thence S 89(Degree) 16' 20" E, a distance of 5268.84 feet to corner 10, a stone
monument (unmarked);
Thence S 89(Degree) 12'01 " E, a distance of 38.97 feet to xxxxx 11, a xxxxx
monument (unmarked);
Thence S 89(Degree) 17'49" E, a distance of 5296.75 feet to corner 12, a stone
monument (unmarked);
Thence S 89(Degree) 24'42" E, a distance of 5215.34 feet to corner 13, a 1970
brass cap monument marked PAG 14M;
Thence S 89'(Degree)1 V07" E, a distance of 52.29 feet to corner 14, a 1970
brass cap monument marked X00 X0X, X0 X0X & PAG;
thence S 89(Degree) 39'49" E, a distance of 2617.47 feet to corner 15, a 1970
brass cap monument marked 1/4 S7 & PAG;
thence S 89(Degree) 39'09" E, a distance of 2543.03 feet to corner 16, a 1970
brass cap monument marked PAG 13M;
Thence S 89(Degree) 15'23" E, a distance of 68.03 feet to corner 17, a 1970
brass cap monument marked S7, S8 & PAG;
Thence S 89(Degree) 28' 18" E, a distance of 2597.78 feet to xxxxx 18, a 1970
brass cap monument marked 1/4 S8 & PAG;
Thence S 89(Degree) 27' 38" E, a distance of 2557.83 feet to corner 19, a 1970
brass cap monument marked PAG 12M;
Thence S 89(Degree) 22'50" E, a distance of 38.33 feet to corner 20, a 1970
brass cap monument marked S8, S9 & PAG;
Thence S 89(Degree) 22' 12" E, a distance of 2797.50 feet to xxxxx 21, a 1970
brass cap monument marked 1/4 S9 & PAG;
Thence S 89(Degree) 27' 07" E, a distance of 2686.59 feet to corner 22, a stone
monument (unmarked);
Thence S 87(Degree) 45'00" E, a distance of 110.07 feet to corner 23, a 1970
brass cap monument marked S9, S10 & PAG;
Thence S 89(Degree) 27' 48" E, a distance of 2446.18 feet to corner 24, the NE
corner and 1970 brass cap monument at the NE corner
of the XXXXX XXXXXXXXXX XXXXX NO. 34 marked NE CO PAG;
Thence S 00(Degree) 40'48" W, a distance of 1795.04 feet to corner 25, a 1970
brass cap monument marked
S10, S15 & PAG;
Thence S 00(Degree) 42' 14" W, a distance of 756.73 feet to corner 26, a 1970
brass cap monument marked PAG 1 OM;
Thence S 00(Degree) 5641 " W, a distance of 3783.91 feet to corner 27, a 1936
USDA Biological Survey brass cap monument marked
A, BDG, AG and S1 5, T5S, R1 W;
Thence N 89(Degree) 17' 17" W, a distance of 2264.23 feet to xxxxx 28, a 1979
USF&W brass cap monument marked NWC BDAG;
Thence S 18(Degree) 18'58" W, a distance of 16387.89 feet to corner 29, a 1979
USF&W brass cap monument marked WC BDAG;
Thence S 22(Degree) 47'40" W, a distance of 1473.66 feet to corner 30, a stone
monument (unmarked);
Thence S 23(Degree) 24' 10" W, a distance of 4762.61 feet to xxxxx 31, a 1936
USDA Biological Survey brass cap monument marked
AGBL, BDAG, and TR A4 COR 14;
Thence N 89(Degree) 37' 16" W, a distance of 2809.06 feet to xxxxx 32, a 1979
USF&W brass cap monument marked BL BDAG;
Thence S 29(Degree) 08' 59" E, a distance of 2479.91 feet to corner 33, a 1/2"
rebar;
Thence S 40(Degree) 52'56" W, a distance of 11426.97 feet to corner 34, a 3/8"
rebar;
Thence N 46(Degree) 051 09" W, a distance of 3574.13 feet to xxxxx 35, a 1/2"
rebar with plastic cap
marked "Xxxxxxxxx 9060";
Thence S 41(Degree) 14'41 " W, a distance of 37925.96 feet to corner 36, the
south corner and 1925 brass cap monument marked
PAG 8M;
Thence N 13(Degree) 00'22" W, a distance of 542.55 feet to corner 37, a 1925
brass cap monument marked S7, S18 & PAG
thence N 13(Degree) 07'11"W, a distance of 4797.66 feet corner 38, a 1925 brass
capmonument marked PAG 9M;
Thence N 13(Degree) 04'14"W, a distance of 637.69 feet to corner 39, a 1926
brass cap monument marked S6 & S7;
Thence N 13(Degree) 04'42"W, a distance of 565.28 feet to corner 39, a 1926
brass cap monument marked S1 & PAG
Thence N 13(Degree) 07'23"W, a distance of 4133.73 feet to corner 41, a 1925
brass cap monument marked PAG 10M;
Thence N 12(Degree) 51'17"W, a distance of 762.87 feet to corner 42, 1 1944
brass cap monument marked S1 and S36;
Thence N 12(Degree) 47'53"W, a distance of 1912.93 feet to corner 43, a 1944
brass cap monument marked PAG 10 1/2M;
Thence N 12(Degree) 48'02" W, a distance of 803.51 feet to corner 44, a 1960
brass cap monument marked 1/4 S36 & PAG;
Thence N 12(Degree) 47'55" W, a distance of 2716.60 feet to corner 45, a 1960
brass cap monument marked S36, S25 & PAG;
Thence N 12(Degree) 50'14" W, a distance of 1831.65 feet to corner 46, a 1944
brass cap monument marked PAG 11 1/2M;
,thence N 12(Degree) 47'34" W, a distance of 871.01 feet to corner 47, a 1960
brass cap monument marked 1/4 S25 & PAG;
Thence N 12(Degree) 48'43" W, a distance of 1805.08 feet to corner 48, a 1944
brass cap monument marked PAG 12M;
Thence N 12(Degree)" 56'37 W, a distance of 898.13 feet to corner 49, a 1960
brass cap monument marked S25, S24 & PAG;
Thence N 12(Degree) 58'33" W, a distance of 1749.79 feet to corner 50, a 1960
brass cap monument marked PAG 12 1/2M;
Thence N 12(Degree) 5640" W, a distance of 994.55 feet to corner 51, a 1960
brass cap monument marked 1/4 S24 & PAG;
Thence N 12'(Degree) 57' 46"W, a distance of 1653 , 75 feet tar corner 52, a
1960 brass cap monument marked PAG 13M;
Thence N 13(Degree) 10'55" W, a distance of 1091.72 feet to corner 53, a 1960
brass cap monument marked S24, S1 3 & PAG;
Thence N 13(Degree) 10'58" W, a distance of 1441.75 feet to corner 54, a 1960
brass cap monument marked S1 3, S14 & PAG;
Thence N 13(Degree) 09'20" W, a distance of 138.33 feet to xxxxx 55, a 1960
brass cap monument marked PAG 13 1/2M;
Thence N 13(Degree) 11' 04" W, a distance of 1147.15 feet to corner 56, a 1960
brass cap monument marked 1/4 S14 & PAG;
Thence N 13(Degree) 10' 18" W, a distance of 1524.35 feet to corner 57, a 1960
brass cap monument marked PAG 14M;
Thence N 13(Degree) 23'04" W, a distance of 1196.08 feet to xxxxx 58, a 1960
brass cap monument marked S1 4, S1 1 & PAG;
Thence N 13(Degree) 22'58" W, a distance of 1541.80 feet to corner 59, a 1960
brass cap monument marked PAG 14 1/2M;
Thence N 13(Degree) 23'27" W, a distance of 1188.01 feet to corner 60, a 1960
brass cap monument marked 1/4 S1 1 & PAG;
Thence N 13(Degree) 23'03" W, a distance of 1550.75 feet to xxxxx 61, a 1960
brass cap monument marked PAG 15M;
Thence N 10(Degree) 52' 40" W, a distance of 706.81 feet to corner 62, a 1960
brass cap monument marked S 11 & PAG A;
Thence N 00(Degree) 40'22" E, a distance of 452.54 feet to corner 63, a 1960
brass cap monument marked S1 1, S2 & PAG;
Thence N 00(Degree) 38'30" E, a distance of 652.88 feet to corner 64, a 1960
brass cap monument marked PAG 5M;
Thence N 00(Degree) 52'48" E, a distance of 1986.81 feet to xxxxx 65, a 1960
brass cap monument marked 1/4 S2 & PAG;
Thence N 00(Degree) 51'46" E, a distance of 657.58 feet to xxxxx 66, a 1960
brass cap monument marked PAG 4 1/2M;
Thence N 00(Degree) 53' 05" E, a distance of 606.43 feet to corner 67, a 1960
brass cap monument marked S2, S36 & PAG;
Thence N 00(Degree) 32' 01 " E, a distance of 2038.09 feet to corner 68, a 1960
brass cap monument marked PAG 4M;
Thence N 00(Degree) 41'06" E, a distance of 8550.83 feet to xxxxx 69, a stone
monument marked "CC";
ThenceIN 00(Degree) 37'24" E, a distance of 5246.68 feet to corner 70, a stone
monument marked "PC";
Thence N 00(Degree) 34'04" E, a distance of 5672.11 feet to corner 71, a 1914
brass cap monument marked S13 and S1 2;
Thence N 00(Degree) 26' 35" E, a distance of 1839.45 feet to corner 1, the point
of beginning. and parcel contains 50,496.340 acres, more or less.
Less than and excepting Parcels 1 and 2.
LEGAL DESCRIPTION OF EXCEPTED PARCEL 1
A parcel of land within the North part of the XXXXX XXXXXXXXXX XXXXX NO. 34,
lying north of Interstate Highway 25,
consisting of the following PROJECTED SECTIONS:
Part of 9,10,11, 12,16, 22, 24, 25 and 36 and all of 13,14,15, 23, 26 and 35 of
T5S, R2W, NMPM; within Xxxxxxx County, New Mexico and being more particularly
described as follows:
36" W, a distance of 35.19 feet; 26" E, a distance of 86.34 feet;
Beginning at the NW corner and stone monument on the Xxxx xxxx xx Xxxxxxx 0,
X0X, X0X NMPM at the North line of the
XXXXX XXXXXXXXXX XXXXX NO. 34;-'
Thence S 88(Degree) 43'09" E, a distance of 28.78 feet to a stone monument
(unmarked);
Thence S 89(Degree) 31'41 " E, a distance of 5238.00 feet to a stone monument
(unmarked);
Thence S 88(Degree) 22'41 " E, a distance of 38.80 feet to a stone monument
(unmarked);
Thence S 89(Degree) 16'20" E, a distance of 5268.84 feet to a stone monument
(unmarked);
Thence S 89(Degree) 12'01 " E, a distance of 38.97 feet to a stone monument
(unmarked);
Thence S 89(Degree) 1749" E, a distance of 5296.75 feet to a stone monument
(unmarked);
Thence S 89(Degree) 24'42" E, a distance of 5215.34 feet to a 1970 brass cap
monument marked PAG 14M;
Thence S 89(Degree) 1 V07" E, a distance of 52.29 feet to a 1970 brass cap
monument marked X00 X0X, X0 X0X & PAG on the
East line of Section 12;
Thence S 00(Degree) 08' 10" W, along the east line of Projected Sections 12,13
and 24, a distance of 10947.26 feet;
Thence N 89(Degree) 32'05" W, a distance of 2660.13 feet;
Thence S 00(Degree) 08' 10" W, a distance of 12354.88 feet to the South 1/4
corner of Projected Section 36;
Thence N 89(Degree) 32' 05" W, a distance of 7942.96 feet to the XX xxxxx of
Projected Section 35;
Thence N 00(Degree) 08' 10" E, a distance of 10560.31 feet to the SE corner of
Projected Section 22;
Thence N 89(Degree) 32'05" W, a distance of 2653.72 feet to the South 1/4 corner
of Projected Section 22;
Thence N 00(Degree) 08' 10" E, a distance of 2640.05 feet to the center of
Projected Section 22;
Thence N 89(Degree) 32'05" W, a distance of 2653.72 feet to the West 114 xxxxx
of Projected Section 22;
Thence N 00(Degree) 08' 10" E, along the West line of Projected Sections 22 and
15, a distance of 6391.68 feet to the centerline of
a dirt road, and following said road on the next 32 courses;
Thence S 73(Degree) 57'39" W, a distance of 70.90 feet;
Thence S 80(Degree) 50'23" W, a distance of 288.32 feet;
Thence N 81(Degree) 0 46' 54" W, a distance of 56.02 feet;
Thence N 44(Degree) 58'27"W, a distance of 91.19 feet;
Thence N 65(Degree) 13'09" W, a distance of 44.30 feet;
Thence S 36(Degree) 24'
Thence S 01(Degree) 14'
Thence S 10(Degree) 26' 17" W, a distance of 75.93 feet;
Thence S 76(Degree) 28'36" W, a distance of 144.91 feet;
Thence S 79(Degree) 03' 17" W, a distance of 151.46 feet;
Thence N 75(Degree) 08' 50" W, a distance of 115.55 feet;
Thence S 82(Degree) 12' 12" W, a distance of 120.91 feet;
Thence S 54(Degree) 16'41 " W, a distance of 65.75 feet;
Thence S 33(Degree) 39'07" W, a distance of 66.93 feet;
Thence S 47(Degree) 51'05" W, a distance of 77.81 feet;
Thence S 69(Degree) 43'05" W, a distance of 188.81 feet;
Thence S 80(Degree) 21'02" W, a distance of 81.59 feet;
Thence N 85(Degree) 31'20" W, a distance of 128.60 feet;
Thence N 79(Degree) 47' 57" W, a distance of 197.79 feet;
Thence N 81(Degree) 37'32" W, a distance of 89.90 feet;
Thence N 86(Degree) 18'35" W, a distance of 223.12 feet;
Thence N 89(Degree) 24' 13" W, a distance of 403.10 feet;
Thence S 87(Degree) 45'42" W, a distance of 242.58 feet;
Thence N 89(Degree) 01'43" W, a distance of 254.84 feet;
Thence N 84(Degree) 11'24" W, a distance of 434.03 feet;
Thence N 82(Degree) 31'30" W, a distance of 169.85 feet;
Thence N 84(Degree) 29'37" W, a distance of 437.02 feet;
Thence N 83(Degree)56'52" W, a distance of 273.23 feet;
Thence N 80(Degree) 06'30" W, a distance of 201.49 feet;
Thence N 75(Degree) 53'20" W, a distance of 362.88 feet;
Thence N 76(Degree) 03'49" W, a distance of 364.44 feet;
Thence N 71(Degree) 44' 55" W, a distance of 51.03 feet;
Thence leaving said road and proceeding N 000 08' 10" E, along the West line of
Projected Sections 16 and 9, a distance of
3815.95 feet to the point of beginning. Said Excepted Parcel 1 contains
6,807.714 acres, more or less.
Legal Description of Expected parcel 2 Revised June 1, 2000
A parcel of land within the North part of the XXXXX XXXXXXXXXX XXXXX NO. 34,
lying north of Interstate Highway 25,
consisting of the following PROJECTED SECTIONS,
Part of 6, 7 and 18 of TSS, R1 W and part of 1, 12,13, and 24 of T6S, R2W, NMPM;
within Xxxxxxx County, New Mexico and-being -more particularly described as
follows:
Beginning at a USF&W Brass Cap monument marked XX XXXX within the NE 1/4 of
Projected Section 7 on the East line
of the herein-described parcel and at an angle point on the boundary between the
XXXXX XXXXXXXXXX GRANT NO. 34
and the Bosque Del Apache National Wildlife Refuge;
Thence S 29(Degree) 08'59" E, a distance of 2479.91 feet to a 1/2" rebar;
Thence S 40(Degree) 52, 56" W, a distance of 11426.97 feet to a 3/8" rebar:
Thence N W 05'09" W, a distance of 500.00 feet,
Thence N 0(Degree)0 16' 40 " E, a distance of 8972.50 feet,
Thence S 89(Degree) 32'05" E, a distance of 1879.06 feet;
Thence N 00(Degree) 16'40" E, a distance of 5929.84 feet to a point on the North
line of Township 6 South-,
Thence S 89(Degree) 32'05" E, along said line, a distance of 4701.36 feet;
Thence S 00(Degree) 16' 40' W, a distance of 4390.29 feet to the point of
beginning.
Said Exempted Parcel 2 contains 1,515.793 acres, more or less.
PROMISSORY NOTE
$2,340,000.00
DATE: JUNE 27, 2000
SOCORRO, NEW MEXICO
For value received, the undersigned (Borrower) promises to pay to the order of
BANK MIDWEST, N.A., a national banking corporation (Bank) at its principal
office in Kansas City, Missouri, or at such other address as Bank may
subsequently designate in writing, the principal sum of Two Million Three
Hundred Forty Thousand Dollars ($2,340,000.00) in lawful money of the United
States of America, together with interest and payable as hereinafter provided.
1. DEFINITIONS: As used in this Note, the following words and phrases have the
meanings set forth below:
o BANK: Bank Midwest, N.A. a national banking corporation, its
successors in interest and assigns, and any subsequent holder or
assignee of this Note.
o BORROWER: the undersigned and all permitted successors in interest and
permitted assigns.
o CONTRACT INTEREST RATE: the outstanding balance of the principal
hereof shall bear interest at a variable rate per annum calculated by
adding four percentage points to the weekly average yield on United
States Treasury securities adjusted to a constant maturity of one year
(as made available by the Federal Reserve Board) in effect 45 days
prior to the Rate Adjustment Date (as defined below). The Contract
Interest Rate shall be calculated on the date of the Note (using the
Index value most recently published on or prior to the closing date)
and on each anniversary of this Note thereafter (each of which is a
"RATE ADJUSTMENT DATE"). If the Index is no longer available, Lender
will choose a new index which is based upon comparable information.
All interest shall be calculated for the actual number of days elapsed
over a year assumed to consist of 360 days.
o DEFAULT INTEREST RATE: the rate of interest which the Borrower agrees
to pay on the principal sum of this Note during the continuance of any
default under this Note or any other Loan Document. The Default
Interest Rate will be the Contract Rate, plus five (5) percentage
points.
o LOAN AGREEMENT: Loan Agreement, dated June 27, 2000, between Bank and
Borrower, as amended.
o LOAN DOCUMENTS: this Note, the Mortgage, and any other document
evidencing, securing, or executed in connection with the indebtedness
evidenced hereby.
o MATURITY DATE: the fifth anniversary of the date of this Note, and is
the date on which Borrower agrees to pay in full all indebtedness then
evidenced by this Note.
o MORTGAGE: the real estate Mortgage executed by Borrower in favor of
Bank to secure this Note and creating a first lien against the
Property.
o PROPERTY: the real estate located in Xxxxxxx, County, New Mexico,
described in the Mortgage.
Terms not otherwise defined herein shall have the meaning assigned in the Loan
Agreement.
2. PAYMENT: Payment of principal and accrued interest shall be made on a
quarterly basis, with the first payment due October 1, 2000. Quarterly payments
shall be in an amount calculated to fully amortized the principal and all
accrued interest over a term of twenty years, beginning on the date of the Note.
3. ADJUSTMENT OF INTEREST RATE: On each anniversary hereof, Bank shall
calculate the amount of the quarterly payment required for the succeeding year,
based on the Contract Rate and principal outstanding on that date, and shall
promptly give notice to Borrower of the amount of the quarterly payment for the
succeeding year.
4. PREPAYMENT: Borrower may prepay this Note, in whole or in part, without
penalty.
5. MATURITY DATE: This Note shall mature June 27, 2005. On the Maturity Date,
Borrower agrees to pay in full, without prior notice or demand, all indebtedness
then evidenced by this Note, including the unpaid principal balance, accrued and
unpaid interest, and any assessed and unpaid late charges.
6. APPLICATION OF PAYMENTS: Except for payments made for partial releases
pursuant to Section 8 of the Loan Agreement, which shall be applied to
principal, all payments on this Note, including prepayments, will be applied
first to any expenses of Bank, then to any assessed late charges, then to
accrued interest and finally, where applicable, to principal; provided their
payments with respect to a Release Parcel (as defined in the Loan Agreement)
will be applied solely to principal.
7. LATE CHARGES: A late charge equal to five percent (5%) of the amount of any
quarterly payment not paid within fifteen (15) days after it is due will be
automatically assessed without prior notice or demand.
8. ACCELERATION: Upon the occurrence of any Event of Default, as defined in
the Mortgage or Loan Agreement, Bank will have the option to accelerate maturity
and demand immediate payment of all indebtedness evidenced by this Note and to
foreclose any liens created by the Loan Documents, subject only to the notice
and opportunity to cure requirements set forth in the Mortgage. Bank's failure
or delay in exercising any remedy upon Borrower's default will not constitute a
waiver of that or any other default and, without limitation, Bank's acceptance
of partial payments on the Note will not constitute a waiver of any default.
9. NOTICE: Any notice required or permitted to be given to Borrower will be in
writing and may be hand delivered or mailed by registered or certified mail,
return receipt requested, to the following address (unless Borrower subsequently
gives Bank written notice of a change of address):
BORROWER:
WILLOW SPRINGS RANCH LLC
c/o Amortibanc Management, LLC
0000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xx 00000
Attn: Xxxxxx Xxxxxxxx, Vice President
If any written notice is mailed, it-will- be deemed effective- on the earlier of
actual receipt or on the third (3rd) calendar day following date of mailing.
10. DEFAULT RATE OF INTEREST: Upon the occurrence of any event of default under
the Loan Documents and upon Borrower's failure to cure the default after any
required written notice, this Note will thereafter bear interest at the Default
Interest Rate in lieu of the Contract Interest Rate during the continuance of
such default.
11. COURT COSTS, ATTORNEY FEES AND EXPENSES: If this Note is placed in the
hands of an attorney f9r collection, Borrower agrees to pay all court costs and
reasonable attorney fees incurred by Bank,. and Borrower further agrees to pay
all expenses incurred by Bank of every nature in connection with the collection
of the indebtedness evidenced by this Note and the management, operation and
preservation of the Property and all. other collateral securing this Note.
12. GOVERNING LAW: This Note will be governed as to validity, interpretation,
construction, effect, enforceability and in all other respects by the laws of
New Mexico. Borrower consents to the personal jurisdiction of any court located
within Xxxxxxx County, New Mexico, with respect to any lawsuit to collect this
Note or involving the Property or the rights and obligations of Bank and
Borrower under the Loan Documents. Borrower agrees if any of them are, or
become., nonresidents of New Mexico, service of process may be had upon them
anywhere outside the State of New Mexico with the same effect as if personal
service had been made within the State of New Mexico.
13. SEVERABILITY: If a court of competent jurisdiction determines that any
provision of this Note or any other Loan Document is invalid or unenforceable,
then the remaining provisions of this Note and the other Loan Documents will
continue in full force and effect.
14. ADDITIONAL COVENANTS: Except as otherwise provided in this Note, Borrower
hereby waives presentment, protest and demand, notice of protest, demand and
dishonor and notice of nonpayment of this Note and hereby agrees that no
extension of the time for payment of this Note, no waiver of any default, no
release of any security for this Note and no indulgence of any sort will operate
to release, discharge, modify, change or affect the original liability of
Borrower under this Note or an 'other Loan Document.
Borrower: Willow Springs Ranch, LLC, a New Mexico limited liability company
By: Amortibanc Management, LC
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, Vice President
EXHIBIT B
MORTGAGE
This mortgage (Mortgage) made by WILLOW SPRINGS RANCH, LLC, a New Mexico
limited liability company (Mortgagor) to BANK MIDWEST, NA (Mortgagee, which term
includes its successors in interesTand assigns and any subsequent holder or
assignee-of the Note secured by this Mortgage).
RECITALS:
Mortgagor is the owner of the fee simplemiterest in certain real estate situate
in Xxxxxxx County, New Mexico (Property), as more particularly described on
Exhibit A, including all water rights, if any, appurtenant thereto.
Mortgagor and Mortgagee will enter into a Loan Agreement (Loan Agreement) under
the terms of which Mortgagee will agree to advance certain proceeds to
Mortgagor.
Mortgagor will execute a Promissory Note (Note) in the principal sum of Two
Million ThreeHundred Forty Thousand Dollars ($2,340,000.00) to evidence all
amounts which Mortgagee may disburse under the Loan Agreement.
Terms defined in the Loan Agreement shall have the same meaning herein.
Mortgagor, *in consideration of the foregoing and the mutual covenants and
agreements contained herein and in the Loan Agreement and Collateral Documents,
does hereby assign the Property to Mortgagee, with mortgage covenants.
This Mortgage is given upon the statutory mortgage condition and the covenants
and agreements contained herein and in the Loan Agreement and Collateral
Documents, for the breach of which it is subject to foreclosure as provided by
law. Mortgagor further covenants and agrees as follows:
1. PAYMENT OF NOTE.
Mortgagor covenants to pay when due all quarterly interest payments, principal,
late charges, and all other payments required by the Note.
2. TAXES, ASSESSMENTS AND CHARGES.
Mortgagor covenants to pay when due all taxes of every kind and nature,
including real and personal property taxes and income, franchise, withholding,
profit and gross receipts taxes, all general and special assessments, levies,
permits, 'inspection and license fees, all water and sewer rents and charges,
all gas, electric, utility or other public charges imposed upon or assessed
against it or the Property, or any part thereof, or upon revenues, rents,
issues, income and profits of the Property arising from the use, occupancy or
possession of the Property.
3. RENTS:
As part of the consideration for the Indebtedness, Mortgagor absolutely and
unconditionally assigns and transfers to Mortgagee all Rents. The rents,
revenues and other income of the Property, due, past due, or to become due by
virtue of any lease or other agreement for the occupancy or use of all or any
part of the Property, regardless of to whom such rents, revenues and other
income are payable (Rents). Mortgagor authorizes Mortgagee or Mortgagee's agents
to collect, and xxx for aAd compromise Rents and directs
each tenant of the Property to pay all Rents to Mortgagee or Mortgagee's agents.
However, prior to notice given by Mortgagee to Mortgagor of an Event of Default,
Mortgagor shall collect and receive all Rents for the account of Mortgagor.
Mortgagor and Mortgagee intend that this, assignment of Rents to be immediately
effective and to constitute an absolute assignment and not an assignment for
additional security only. Upon delivery of notice by Mortgagee to Mortgagor of
any Event of Default, and without the necessity of Mortgagee entering upon and
taking and maintaining control of the Property directly, by agent or by a court
appointed receiver, Mortgagee shall immediately be entitled to all Rents as they
become due and payable, including but not limited to Rents then due and unpaid,
and all Rents shall immediately upon delivery of such notice be held by
Mortgagor as trustee for the benefit of Mortgagee only. Mortgagee shall be
deemed to have exercised its rights to the Rents only if, at any time after the
occurrence during the existence of an Event of Default, it has given Mortgagor
notice of such exercise. Commencing upon delivery of such notice, each tenant of
the Property shall upon Mortgagee's written demand to such tenant pay all Rents
to Mortgagee or Mortgagee's agents, without any obligation on the part of* any
tenant to inquire filrther as to the existence of an Event of Default, and such
tenant shall not be obligated to pay to Mortgagor any amounts which are actually
paid to Mortgagee or Mortgagee's agents in response to such a demand. Any such
demand by Mortgagee shall be delivered to each tenant personally, by mail or by
delivering such demand to each rental unit. Mortgagor. shall not interfere, and
shall cooperate, with Mortgagee's collection of such Rents.
4. INSURANCE.
Mortgagor covenants to procure and maintain fire and extended coverage insurance
on all improvements now or hereafter constructed on the Property in an amount at
least equal to the aggregate principal sum of the Note, or One Hundred Percent
of the insurable value of the improvements, whichever is less, with endorsement
for. vandalism and malicious mischief In addition, Mortgagor agrees to procure
and maintain public liability insurance with minimum limits of One Million
Dollars ($ 1,000,000.00) per person, Two Million Dollars ($2,000,000.00) per
occurrence, for personal injury or death and for property damage. Mortgagor
covenants to pay all premiums on insurance coverage required hereby when due and
to deposit with Mortgagee the fire and extended coverage policy, together with
endorsements naming Mortgagee as an additional insured or loss payee under a
standard mortgagee clause. Mortgagor must further deposit with Mortgagee a
certificate of public liability insurance in the amounts stated above. All
insurance policies required hereby must be written by insurance companies
reasonably acceptable to Mortgagee, shall not contain any exceptions to coverage
not approved by Mortgagee, and must contain a provision requiring at least
thirty (30) days prior written notice of cancellation to Mortgagee.
5. APPLICATION OF INSURANCE PROCEEDS.
In the event of any loss or damage to the Property which is covered by insurance
required to be maintained by this Mortgage, Mortgagee shall have the option, in
its sole discretion, to apply such insurance proceeds toward payment of the
indebtedness evidenced by the Note and secured by the Loan Documents or toward
the repair and restoration of the Property to substantially the same condition
as existed prior to the loss or damage to the extent reasonably practicable.
6. APPLICATION OF CONDEMNATION PROCEEDS.
If there is a total condemnation or taking of the Property, Mortgagee shall,
after deduction of the costs and expenses of collection, apply all condemnation
proceeds toward payment of the indebtedness evidenced by the Note. If there is a
partial condemnation or taking of the Property, Mortgagee shall have the option,
in its sole discretion, to apply such partial condemnation proceeds, in whole or
in part, toward payment of the indebtedness evidenced by the Note or toward the
repair and restoration of the Property, or toward both. Mortgagee shall hold any
such condemnation proceeds which are held for repair and
restoration without payment of interest or earnings thereon and shall disburse
such proceeds pursuant to its normal and customary requirements and procedures
for construction lending and such further requirements as Mortgagee may
reasonably impose in its discretion.
7. ADVANCES.
If Mortgagor should fail to perform, in whole or in part, any one or more of the
covenants contained in the Loan Documents, Mortgagee may do, but is not
obligated to do, any and all things required of Mortgagor under any such
covenants. If any such breach of covenant or any Event of Default can be cured
by the payment of money, Mortgagee may, but is not obligated to, advance such
sums of money as Mortgagee, in its sole discretion, shall determine to be
necessary to cure such breach of covenant or Event of Default, including, but
not limited to, the payment of any tax, lien, assessment or charge asserted
against the Property, the payment of any insurance premiums required hereby, and
the payment of any amounts deemed necessary by Mortgagee to keep the Property in
good order and repair or to prevent waste. Mortgagee shall have sole discretion
as to the necessity for making any such payments and shall be without obligation
to inquire as to the validity of any tax, assessment, lien or charge asserted
against the Property. The making of any such advance will not operate as a
waiver of any right to accelerate debt maturity. The amount of any such advance
shall be added to the indebtedness secured by this Mortgage, with interest
thereon at the rate of interest provided in the Note from the date of advance
until repaid. Should Mortgagor fail, neglect or refuse to reimburse Mortgagee
for the amount of such advance with interest accrued thereon within fifteen (I
5) days of receipt of written demand from Mortgagee, Mortgagee shall have the
option to accelerate maturity and demand immediate payment of all indebtedness
secured by this Mortgage.
8. FUTURE ADVANCES.
This mortgage shall also secure repayment of future advances to Mortgagor, but
in no event in amount exceeding Three Million Five Hundred Ten Thousand Dollars
($3,5 110,000. 00) in total.
9. RIGHT TO INSPECT PROPERTY.
Mortgagee shall have the right, on reasonable notice and at all reasonable times
during usual business hours, to enter upon and inspect all portions of the
Property.
10. TRANSFER.
Except as provided in the Loan Agreement, if the Property, or any portion
thereof is sold, transferred, leased, or conveyed without the prior written
consent of Mortgagee, Mortgagee shall have the option to accelerate maturity and
demand immediate payment of all 'indebtedness then secured hereby, including
interest accrued thereon and penalties as provided by the Note. Transfer or sale
of the Property shall not release Mortgagor from its liability hereunder or
under the Note. For purposes of this provision, a transfer of the Property will
be deemed to have occurred (if the Mortgagor is a legal entity other than a
natural person) upon any sale, transfer or disposition of any nature, of fifteen
percent (15%) of the stock, partnership interest, joint venture interest or
other interest in such legal entity.
11. DEFAULT.
Upon the occurrence of any Event of Default, Mortgagee shall have the option to
accelerate maturity and demand immediate payment of all indebtedness evidenced
by the Note and secured by the remaining Loan Documents, including interest
accrued thereon and penalties, if any, provided by the Note, and to foreclose
any liens created by this Mortgage or the remaining Loan Documents.
12. FORECLOSURE AND REDEMPTION PERIOD.
If this Mortgage is foreclosed, the redemption period after judicial sale shall
be thirty (30) days. In the event of a judicial sale hereunder, Mortgagee may
become the purchaser of the Property, or any part thereof, and may bid any
indebtedness secured hereby at such sale. In the event of foreclosure, Mortgagee
shall be entitled to the appointment of a receiver to take charge of the
Property and to hold possession of the same until the foreclosure sale thereof
or until the indebtedness hereby secured is fully paid, and all rents and
profits derived from said premises, less the costs and expenses of the
receivership, shall be applied to the indebtedness secured hereby.
13. ATTORNEY'S FEES AND COSTS.
Mortgagor agrees to pay and reimburse Mortgagee for all reasonable attorney's
fees, costs and expenses paid or incurred by Mortgagee in any legal action,
proceeding or other dispute of any kind in which Mortgagee is made a party or
appears as a party plaintiff or defendant, involving the Note, this Mortgage,
the Loan Agreement, the other Loan Documents or the Property, including, but not
limited to, the foreclosure or other enforcement of the Note or Loan Documents,
any condemnation action, any action to protect Mortgagee's security or liens and
any action in bankruptcy or probate.
14. MORTGAGEE IN POSSESSION.
In addition to any other remedies available to Mortgagee under the Mortgage or
afforded by law, Mortgagee shall have the option, upon the occurrence of any
Event of Default or any breach by Mortgagor of any covenant, agreement or
warranty contained in the Note or the Loan Documents, to enter and take
possession of the Property in person, by an agent or by judicially appointed
receiver. Upon taking possession of the Property pursuant to this paragraph,
Mortgagee, its agent or receiver, may do any or all of the following acts:
14.1 manage the Property, or employ an agent to manage the Property and pay
such agent reasonable compensation;
14.2 do any and all acts reasonably necessary or with respect to the
Property to adequately protect Mortgagee's security interest under
this Mortgage; and
Any expenses incurred by Mortgagee pursuant to this paragraph shall be paid from
the proceeds and profits derived from the Property, but should such proceeds and
profits be insufficient to pay such expenses, any amounts advanced by Mortgagee,
with interest thereon at the rate of interest set forth in the Note from the
respective dates of each such advance until repaid, shall be added to the
indebtedness then secured by this Mortgage and become subject to the lien of
this Mortgage.
15. NO WAIVER.
The failure, omission or forbearance of Mortgagee in exer cising any right or
remedy under this Mortgage or afforded by law, upon the occurrence of any Event
of Default or any breach by Mortgagor of any covenant, agreement or warranty
contained in the Note or this Mortgage, or any other Loan Document, shall not
constitute an implied waiver of any such covenant, agreement or warranty and
shall not preclude Mortgagee from exercising any said right or remedy upon the
occurrence of a subsequent Event of Default or breach by Mortgagor of the same
or any other covenant, agreement or warranty. Any written or express waiver by
Mortgagee of any such Event of Default or breach by Mortgagor shall be operative
only to the extent and for the time stated
therein.
16. MODIFICATION.
No change, amendment, modification, cancellation or discharge of this Mortgage
shall be valid unless it is duly signed and acknowledged in writing by Mortgagor
and Mortgagee.
17. FURTHER INSTRUMENTS.
Mortgagor shall properly execute and deliver, or cause to be properly executed
and delivered, from time to time at the request of Mortgagee all such further
deeds, conveyances, mortgages, security agreements, financing statements,
assignments of leases now existing or hereafter entered into and covering all or
portions of the Property, transfers and such other assurances as the Mortgagee
may require for better assuring, mortgaging, pledging, assigning and confirming
unto the Mortgagee all and singular the Property and the title thereto.
18. SEVERABILITY.
If any provision of this Mortgage shall be determined to be inoperative under
law, all remaining provisions of this Mortgage shall remain in full force and
effect.
19. NOTICE.
All notices, demands or requests permitted or required to be given under the
provisions of the Note, this Mortgage or any other Loan Documents shall be
effective when delivered in accordance with the terms of the Loan Agreement to
the following address:
MORTGAGEE: BANK MIDWEST, NA
X.X. Xxx 00000
Xxxxxx Xxxx, Xx 00000-0000
Attn: Xxxx X. Xxxxxx, Vice President
MORTGAGOR: WILLOW SPRINGS RANCH LLC
c/o Amortibanc Management, LLC
0000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xx 00000
Attn: Xxxxxx X. Xxxxxxxx
20. TIME OF ESSENCE.
Time is of the essence with respect to the performance and payment by Mortgagor
of all obligations under the Note and all other Loan Documents.
21. BENEFIT.
The covenants, agreements and warranties contained in this Mortgage shall be
binding upon and inure to the benefit of the respective heirs, executors,
administrators, successors in interest and assigns of Mortgagor and Mortgagee.
In witness whereof, Mortgagor has executed and delivered this Real Estate
Mortgage this 23rd day of June, 2000.
MORTGAGOR: WILLOW SPRINGS RANCH, LLC, a New Mexico limited liability company
By: AMORTIBANC MAGEMENT, LC, MANAGER
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, Vice President
STATE OF NEW MEXICO
COUNTY OF XXXXXXX
The foregoing instrument was acknowledged before me on june 23, 2000, by
Xxxxxx X. Xxxxxxxx of Amortibanc Management, LC, Manager of Willow Springs
Ranch, LLC,on behalf of said limited liability company.
/s/ Xxxxxxx X. Xxxxxx
----------------------
Notary Public
My Commission Expires:
May 19, 2004
----------------------
EXRIBIT A
CIENEGA RANCH LEGAL DESCRIPTION
parcel of land being the North part of the XXXXX XXXXXXXXXX GRANT NO. 34, lying
north of Interstate Highway 25,
connsisting of the following PROJECTED SECTIONS:
Part of 7, 8, 9, 10,15, 16, 21, 28 and 33, and all of 17, 18, 19, 20, 29, 30, 31
and 32 of T5S, R1W, NMPM;
Part of 7, 8, 9, 10, 11 and 12 and all of 00 - 00 xx X0X, X0X, NMPM;
Part of 12, 13, 24, 25 and 36, T5S, R3W, NMPM;
Part of 5, 7, 8, and 18 and all of 6 of T6S, R1W, NMPM;
Part of 13-14, 22-24,-27-28 and 33 and all of 1-1-2,- 1 &~21 and 29-32,
T68,-R2W, NMPM;
Part of 2,11, 13, 14, 24, 25 and 36 and all of 1 and 12 of T6S, R3W, NMPM;
Part of 0-0 xxx 00 xx X0X, X0X, NMPM;
Part of 1 of T7S, RW, NMPM;
within Xxxxxxx County, New Mexico and being more particularly described as
follows:
Beginning at corner 1, the NW corner and stone monument at the NW corner of the
XXXXX XXXXXXXXXX XXXXX NO. 34
marked "Ads NWC";
Thence S 89(Degree) 38' 15" E, a distance of 4784.10 feet to corner 2, a stone
monument (marking unclear);
Thence S 89(Degree) 50'52" E, a distance of 2573.51 feet to corner 3, a stone
monument (marking unclear);
Thence S 89(Degree) 0608" E, a distance of 2600.48 feet to corner 4, a stone
monument (unmarked);
Thence N 89(Degree) 17'59" E, a distance of 53.71 feet to corner 5, a stone
monument marked "l 9" (19 mile);
Thence S 89(Degree) 38'47" E, a distance of 5268.46 feet to corner 6, a stone
monument (unmarked);
Thence S 88(Degree) 43'09" E, a distance of 28.78 feet to corner 7, a stone
monument (unmarked);
Thence S 89(Degree) 31'41 " E, a distance of 5238.00 feet to corner 8, a stone
monument (unmarked);
Thence S 88(Degree) 22' 41 " E, a distance of 38.80 feet to corner 9, a stone
monument (unmarked);
Thence S 89(Degree) 16' 20" E, a distance of 5268.84 feet to corner 10, a stone
monument (unmarked);
Thence S 89(Degree) 12'01 " E, a distance of 38.97 feet to xxxxx 11, a xxxxx
monument (unmarked);
Thence S 89(Degree) 17'49" E, a distance of 5296.75 feet to corner 12, a stone
monument (unmarked);
Thence S 89(Degree) 24'42" E, a distance of 5215.34 feet to corner 13, a 1970
brass cap monument marked PAG 14M;
Thence S 89'(Degree)1 V07" E, a distance of 52.29 feet to corner 14, a 1970
brass cap monument marked X00 X0X, X0 X0X & PAG;
thence S 89(Degree) 39'49" E, a distance of 2617.47 feet to corner 15, a 1970
brass cap monument marked 1/4 S7 & PAG;
thence S 89(Degree) 39'09" E, a distance of 2543.03 feet to corner 16, a 1970
brass cap monument marked PAG 13M;
Thence S 89(Degree) 15'23" E, a distance of 68.03 feet to corner 17, a 1970
brass cap monument marked S7, S8 & PAG;
Thence S 89(Degree) 28' 18" E, a distance of 2597.78 feet to xxxxx 18, a 1970
brass cap monument marked 1/4 S8 & PAG;
Thence S 89(Degree) 27' 38" E, a distance of 2557.83 feet to corner 19, a 1970
brass cap monument marked PAG 12M;
Thence S 89(Degree) 22'50" E, a distance of 38.33 feet to corner 20, a 1970
brass cap monument marked S8, S9 & PAG;
Thence S 89(Degree) 22' 12" E, a distance of 2797.50 feet to xxxxx 21, a 1970
brass cap monument marked 1/4 S9 & PAG;
Thence S 89(Degree) 27' 07" E, a distance of 2686.59 feet to corner 22, a stone
monument (unmarked);
Thence S 87(Degree) 45'00" E, a distance of 110.07 feet to corner 23, a 1970
brass cap monument marked S9, S10 & PAG;
Thence S 89(Degree) 27' 48" E, a distance of 2446.18 feet to corner 24, the NE
corner and 1970 brass cap monument at the NE corner
of the XXXXX XXXXXXXXXX XXXXX NO. 34 marked NE CO PAG;
Thence S 00(Degree) 40'48" W, a distance of 1795.04 feet to corner 25, a 1970
brass cap monument marked S10, S15 & PAG;
Thence S 00(Degree) 42' 14" W, a distance of 756.73 feet to corner 26, a 1970
brass cap monument marked PAG 1 OM;
Thence S 00(Degree) 5641 " W, a distance of 3783.91 feet to corner 27, a 1936
USDA Biological Survey brass cap monument marked A, BDG, AG and S1 5, T5S, R1 W;
Thence N 89(Degree) 17' 17" W, a distance of 2264.23 feet to xxxxx 28, a 1979
USF&W brass cap monument marked NWC BDAG;
Thence S 18(Degree) 18'58" W, a distance of 16387.89 feet to corner 29, a 1979
USF&W brass cap monument marked WC BDAG;
Thence S 22(Degree) 47'40" W, a distance of 1473.66 feet to corner 30, a stone
monument (unmarked);
Thence S 23(Degree) 24' 10" W, a distance of 4762.61 feet to xxxxx 31, a 1936
USDA Biological Survey brass cap monument marked
AGBL, BDAG, and TR A4 COR 14;
Thence N 89(Degree) 37' 16" W, a distance of 2809.06 feet to xxxxx 32, a 1979
USF&W brass cap monument marked BL BDAG;
Thence S 29(Degree) 08' 59" E, a distance of 2479.91 feet to corner 33, a 1/2"
rebar;
Thence S 40(Degree) 52'56" W, a distance of 11426.97 feet to corner 34, a 3/8"
rebar;
Thence N 46(Degree) 051 09" W, a distance of 3574.13 feet to xxxxx 35, a 1/2"
rebar with plastic cap marked "Xxxxxxxxx 9060";
Thence S 41(Degree) 14'41 " W, a distance of 37925.96 feet to corner 36, the
south corner and 1925 brass cap monument marked
PAG 8M;
Thence N 13(Degree) 00'22" W, a distance of 542.55 feet to corner 37, a 1925
brass cap monument marked S7, S18 & PAG
thence N 13(Degree) 07'11"W, a distance of 4797.66 feet corner 38, a 1925 brass
capmonument marked PAG 9M;
Thence N 13(Degree) 04'14"W, a distance of 637.69 feet to corner 39, a 1926
brass cap monument marked S6 & S7;
Thence N 13(Degree) 04'42"W, a distance of 565.28 feet to corner 39, a 1926
brass cap monument marked S1 & PAG
Thence N 13(Degree) 07'23"W, a distance of 4133.73 feet to corner 41, a 1925
brass cap monument marked PAG 10M;
Thence N 12(Degree) 51'17"W, a distance of 762.87 feet to corner 42, 1 1944
brass cap monument marked S1 and S36;
Thence N 12(Degree) 47'53"W, a distance of 1912.93 feet to corner 43, a 1944
brass cap monument marked PAG 10 1/2M;
Thence N 12(Degree) 48'02" W, a distance of 803.51 feet to corner 44, a 1960
brass cap monument marked 1/4 S36 & PAG;
Thence N 12(Degree) 47'55" W, a distance of 2716.60 feet to corner 45, a 1960
brass cap monument marked S36, S25 & PAG;
Thence N 12(Degree) 50'14" W, a distance of 1831.65 feet to corner 46, a 1944
brass cap monument marked PAG 11 1/2M;
,thence N 12(Degree) 47'34" W, a distance of 871.01 feet to corner 47, a 1960
brass cap monument marked 1/4 S25 & PAG;
Thence N 12(Degree) 48'43" W, a distance of 1805.08 feet to corner 48, a 1944
brass cap monument marked PAG 12M;
Thence N 12(Degree)" 56'37 W, a distance of 898.13 feet to corner 49, a 1960
brass cap monument marked S25, S24 & PAG;
Thence N 12(Degree) 58'33" W, a distance of 1749.79 feet to corner 50, a 1960
brass cap monument marked PAG 12 1/2M;
Thence N 12(Degree) 5640" W, a distance of 994.55 feet to corner 51, a 1960
brass cap monument marked 1/4 S24 & PAG;
Thence N 12'(Degree) 57' 46"W, a distance of 1653 , 75 feet tar corner 52, a
1960 brass cap monument marked PAG 13M;
Thence N 13(Degree) 10'55" W, a distance of 1091.72 feet to corner 53, a 1960
brass cap monument marked S24, S1 3 & PAG;
Thence N 13(Degree) 10'58" W, a distance of 1441.75 feet to corner 54, a 1960
brass cap monument marked S1 3, S14 & PAG;
Thence N 13(Degree) 09'20" W, a distance of 138.33 feet to xxxxx 55, a 1960
brass cap monument marked PAG 13 1/2M;
Thence N 13(Degree) 11' 04" W, a distance of 1147.15 feet to corner 56, a 1960
brass cap monument marked 1/4 S14 & PAG;
Thence N 13(Degree) 10' 18" W, a distance of 1524.35 feet to corner 57, a 1960
brass cap monument marked PAG 14M;
Thence N 13(Degree) 23'04" W, a distance of 1196.08 feet to xxxxx 58, a 1960
brass cap monument marked S1 4, S1 1 & PAG;
Thence N 13(Degree) 22'58" W, a distance of 1541.80 feet to corner 59, a 1960
brass cap monument marked PAG 14 1/2M;
Thence N 13(Degree) 23'27" W, a distance of 1188.01 feet to corner 60, a 1960
brass cap monument marked 1/4 S1 1 & PAG;
Thence N 13(Degree) 23'03" W, a distance of 1550.75 feet to xxxxx 61, a 1960
brass cap monument marked PAG 15M;
Thence N 10(Degree) 52' 40" W, a distance of 706.81 feet to corner 62, a 1960
brass cap monument marked S 11 & PAG A;
Thence N 00(Degree) 40'22" E, a distance of 452.54 feet to corner 63, a 1960
brass cap monument marked S1 1, S2 & PAG;
Thence N 00(Degree) 38'30" E, a distance of 652.88 feet to corner 64, a 1960
brass cap monument marked PAG 5M;
Thence N 00(Degree) 52'48" E, a distance of 1986.81 feet to xxxxx 65, a 1960
brass cap monument marked 1/4 S2 & PAG;
Thence N 00(Degree) 51'46" E, a distance of 657.58 feet to xxxxx 66, a 1960
brass cap monument marked PAG 4 1/2M;
Thence N 00(Degree) 53' 05" E, a distance of 606.43 feet to corner 67, a 1960
brass cap monument marked S2, S36 & PAG;
Thence N 00(Degree) 32' 01 " E, a distance of 2038.09 feet to corner 68, a 1960
brass cap monument marked PAG 4M;
Thence N 00(Degree) 41'06" E, a distance of 8550.83 feet to xxxxx 69, a stone
monument marked "CC";
ThenceIN 00(Degree) 37'24" E, a distance of 5246.68 feet to corner 70, a stone
monument marked "PC";
Thence N 00(Degree) 34'04" E, a distance of 5672.11 feet to corner 71, a 1914
brass cap monument marked S13 and S1 2;
Thence N 00(Degree) 26' 35" E, a distance of 1839.45 feet to corner 1, the point
of beginning.
and parcel contains 50,496.340 acres, more or less.
Less than and excepting Parcels I and 2.
LEGAL DESCRIPTION OF EXCEPTED PARCEL 1
A parcel of land within the North part of the XXXXX XXXXXXXXXX XXXXX NO. 34,
lying north of Interstate Highway 25,
consisting of the following PROJECTED SECTIONS:
Part of 9,10,11, 12,16, 22, 24, 25 and 36 and all of 13,14,15, 23, 26 and 35 of
T5S, R2W, NMPM;
within Xxxxxxx County, New Mexico and being more particularly described as
follows:
36" W, a distance of 35.19 feet; 26" E, a distance of 86.34 feet;
Beginning at the NW corner and stone monument on the Xxxx xxxx xx Xxxxxxx 0,
X0X, X0X NMPM at the North line of the
XXXXX XXXXXXXXXX XXXXX NO. 34;-'
Thence S 88(Degree) 43'09" E, a distance of 28.78 feet to a stone monument
(unmarked);
Thence S 89(Degree) 31'41 " E, a distance of 5238.00 feet to a stone monument
(unmarked);
Thence S 88(Degree) 22'41 " E, a distance of 38.80 feet to a stone monument
(unmarked);
Thence S 89(Degree) 16'20" E, a distance of 5268.84 feet to a stone monument
(unmarked);
Thence S 89(Degree) 12'01 " E, a distance of 38.97 feet to a stone monument
(unmarked);
Thence S 89(Degree) 1749" E, a distance of 5296.75 feet to a stone monument
(unmarked);
Thence S 89(Degree) 24'42" E, a distance of 5215.34 feet to a 1970 brass cap
monument marked PAG 14M;
Thence S 89(Degree) 1 V07" E, a distance of 52.29 feet to a 1970 brass cap
monument marked X00 X0X, X0 X0X & PAG on the
East line of Section 12;
Thence S 00(Degree) 08' 10" W, along the east line of Projected Sections 12,13
and 24, a distance of 10947.26 feet;
Thence N 89(Degree) 32'05" W, a distance of 2660.13 feet;
Thence S 00(Degree) 08' 10" W, a distance of 12354.88 feet to the South 1/4
corner of Projected Section 36;
Thence N 89(Degree) 32' 05" W, a distance of 7942.96 feet to the XX xxxxx of
Projected Section 35;
Thence N 00(Degree) 08' 10" E, a distance of 10560.31 feet to the SE corner of
Projected Section 22;
Thence N 89(Degree) 32'05" W, a distance of 2653.72 feet to the South 1/4 corner
of Projected Section 22;
Thence N 00(Degree) 08' 10" E, a distance of 2640.05 feet to the center of
Projected Section 22;
Thence N 89(Degree) 32'05" W, a distance of 2653.72 feet to the West 114 xxxxx
of Projected Section 22;
Thence N 00(Degree) 08' 10" E, along the West line of Projected Sections 22 and
15, a distance of 6391.68 feet to the centerline of
a dirt road, and following said road on the next 32 courses;
Thence S 73(Degree) 57'39" W, a distance of 70.90 feet;
Thence S 80(Degree) 50'23" W, a distance of 288.32 feet;
Thence N 81(Degree) 0 46' 54" W, a distance of 56.02 feet;
Thence N 44(Degree) 58'27"W, a distance of 91.19 feet;
Thence N 65(Degree) 13'09" W, a distance of 44.30 feet;
Thence S 36(Degree) 24'
Thence S 01(Degree)0 14'
Thence S 10(Degree) 26' 17" W, a distance of 75.93 feet;
Thence S 76(Degree) 28'36" W, a distance of 144.91 feet;
Thence S 79(Degree) 03' 17" W, a distance of 151.46 feet;
Thence N 75(Degree) 08' 50" W, a distance of 115.55 feet;
Thence S 82(Degree) 12' 12" W, a distance of 120.91 feet;
Thence S 54(Degree) 16'41 " W, a distance of 65.75 feet;
Thence S 33(Degree) 39'07" W, a distance of 66.93 feet;
Thence S 47(Degree) 51'05" W, a distance of 77.81 feet;
Thence S 69(Degree) 43'05" W, a distance of 188.81 feet;
Thence S 80(Degree) 21'02" W, a distance of 81.59 feet;
Thence N 85(Degree) 31'20" W, a distance of 128.60 feet;
Thence N 79(Degree) 47' 57" W, a distance of 197.79 feet;
Thence N 81(Degree) 37'32" W, a distance of 89.90 feet;
Thence N 86(Degree) 18'35" W, a distance of 223.12 feet;
Thence N 89(Degree) 24' 13" W, a distance of 403.10 feet;
Thence S 87(Degree) 45'42" W, a distance of 242.58 feet;
Thence N 89(Degree) 01'43" W, a distance of 254.84 feet;
Thence N 84(Degree) 11'24" W, a distance of 434.03 feet;
Thence N 82(Degree) 31'30" W, a distance of 169.85 feet;
Thence N 84(Degree) 29'37" W, a distance of 437.02 feet;
Thence N 83(Degree)56'52" W, a distance of 273.23 feet;
Thence N 80(Degree) 06'30" W, a distance of 201.49 feet;
Thence N 75(Degree) 53'20" W, a distance of 362.88 feet;
Thence N 76(Degree) 03'49" W, a distance of 364.44 feet;
Thence N 71(Degree) 44' 55" W, a distance of 51.03 feet;
Thence leaving said road and proceeding N 000 08' 10" E, along the West line of
Projected Sections 16 and 9, a distance of
3815.95 feet to the point of beginning. Said Excepted Parcel 1 contains
6,807.714 acres, more or less.
Legal Description of Expected parcel 2 Revised June 1, 2000
A parcel of land within the North part of the XXXXX XXXXXXXXXX XXXXX NO. 34,
lying north of Interstate Highway 25,
consisting of the following PROJECTED SECTIONS,
Part of 6, 7 and 18 of TSS, R1 W and part of 1, 12,13, and 24 of T6S, R2W, NMPM;
within Xxxxxxx County, New Mexico and-being -more particularly described as
follows:
Beginning at a USF&W Brass Cap monument marked XX XXXX within the NE 1/4 of
Projected Section 7 on the East line
of the herein-described parcel and at an angle point on the boundary between the
XXXXX XXXXXXXXXX GRANT NO. 34
and the Bosque Del Apache National Wildlife Refuge;
Thence S 29(Degree) 08'59" E, a distance of 2479.91 feet to a 1/2" rebar;
Thence S 40(Degree) 52, 56" W, a distance of 11426.97 feet to a 3/8" rebar:
Thence N W 05'09" W, a distance of 500.00 feet,
Thence N 0(Degree)0 16' 40 " E, a distance of 8972.50 feet,
Thence S 89(Degree) 32'05" E, a distance of 1879.06 feet;
Thence N 00(Degree) 16'40" E, a distance of 5929.84 feet to a point on the North
line of Township 6 South-,
Thence S 89(Degree) 32'05" E, along said line, a distance of 4701.36 feet;
Thence S 00(Degree) 16' 40' W, a distance of 4390.29 feet to the point of
beginning.
Said Exempted Parcel 2 contains 1,515.793 acres, more or less.
GUARANTY
This Guaranty made as of the 27' of June 2000, by AMORTIBANC MANAGEMENT, LC, a
Texas limited liability company (GUARANTOR) TO BANK MIDWEST, N.A., a national
banking corporation (LENDER).
1. RECITALS: the following Recitals describe the background to this Guaranty:
1.1 Lender has agreed to lend (Loan) the sum of Two Million Three Hundred
Forty Thousand Dollars ($2,340,000.00) to Willow Springs Ranch, LLC, a New
Mexico limited liability company (BORROWER).
1.2 The Loan will be evidenced by a Promissory Note (NOTE) executed by
Borrower and secured by a Mortgage (MORTGAGE) executed by Borrower. The proceeds
of the Loan will be disbursed for the acquisition of certain real property in
Xxxxxxx County, New Mexico.
1.3 In order to induce the Lender to enter into the Loan, Guarantor,
Manager of Borrower, has agreed to execute and deliver to Lender a guarantee
that the indebtedness under the Note and Mortgage will be promptly paid when
due.
2. GUARANTY.
2.1 In consideration of the foregoing, and in consideration of the payment
of One Dollar ($1.00), receipt of which is hereby acknowledged by Guarantor,
Guarantor hereby absolutely and unconditionally guarantees to the Lender, its
successors and assigns, prompt payment when due of all indebtedness of Borrower
under the Note and Mortgage without any requirement that Lender must first
proceed against Borrower or any other person to collect said indebtedness, in
whole or in part, or from any collateral securing same. Guarantor acknowledges
that the Lender will not be required to elect remedies and that should Lender
elect to first proceed against Borrower or any collateral which secures the
indebtedness hereby guaranteed, such action will not constitute an election or
waiver which bars or estops the Lender from ultimately proceeding against
Guarantor hereunder.
2.2 As used herein "indebtedness" is used in its most comprehensive sense
and includes, but is not limited to: (1) the principal amount of the Note,
together with interest as specified therein; (ii) any advances which the Lender
is permitted or obligated to make pursuant to the Mortgage,, or any other
document executed by Borrower in con nection with the Loan. even if such
advances cause the amount of the Loan to exceed Two Million Three Hundred Forty
Thousand Dollars ($2,340,000.00), together with interest, fi-om the date of
advance until repaid, at the rate of interest specified in the documents
pursuant to which the advance is made; and (iii) all costs and reasonable
attorneys' fees incurred by the Lender in any lawsuit filed by Lender against
Borrower, Guarantor or any other person to collect the indebtedness hereby
guaranteed.
2.3 Guarantor hereby waives acceptance hereof by the Lender, notice of
advances to Borrower or on behalf of Borrower, due diligence in collecting
indebtedness from Borrower, protest, and notice of any default of Borrower.
Guarantor hereby consents and agrees that Lender may, without further notice to
Guarantor, do and perform any of the following acts:
2.3.1 renew, compromise, extend, accelerate or otherwise change the
time for payment of any indebtedness hereby guaranteed;
2.3.2 alter, change, amend or modify any note, mortgage or other
document evidencing, securing or executed in connection with any
indebtedness hereby guaranteed;
2.3.3 take and hold securfty for the payment of this Guaranty or the
indebtedness hereby guaranteed, and exchange, enforce, waive or release any
such security;
2.3.4 apply such security and direct the order or manner of sale
thereof as the Lender may, in its discretion, determine; and
2.3.5 to the extent the indebtedness hereby guaranteed is assigned,
assign this Guaranty in whole or in , part, without consent of or notice to
Guarantor, Borrower, or any other person or entity.
2.4 The liability of Guarantor hereunder is independent of any other
guarantees at any time in efTect with respect to all or any part of the
indebtedness hereby guaranteed and said liability may be enforced regardless of
the existence of such other guarantees, if any. Any interest, lien, claim, right
of subrogation or any other right or remedy of Guarantor in any collateral which
now or hereafter secures any of the indebtedness hereby guaranteed, will be
inferior and subordinate to all rights of Lender until the indebtedness hereby
guaranteed is fully paid.
3. GUARANTOR'S REPRESENTATIONS AND WARRANTIES:
3.1 Any financial statements of Guarantor which have heretofore been
delivered to the Lender are true and correct in all respects, have been prepared
substantially in accordance with generally accepted accounting principles
consistently applied, and fully and accurately present the financial position of
Guarantor as of the dates thereof, and no materially adverse change has occurred
in the financial position reflected therein since the dates thereof
3.2 There is no action, suit or proceeding pending, or threatened, against
or affecting Guarantor involving controversies which, in the aggregate, exceed
Fifty Thousand Dollars ($50,000.00), or involving the validity, priority or
enforceability of any documents evidencing, securing, or executed in connection
with the indebtedness guaranteed hereby, at law or in equity, or before or by
any governmental authority. Guarantor is not in any default under order, writ,
injunction, decree or demand of any coin t or any governmental authority, or
under any mortgage, deed of trust, lease, loan or credit agreement, or other
instrument to which it is a party or by which it may be bound or affected, and
the consummation of the transactions hereby contemplated and the execution,
delivery and performance of this Guaranty will not result in the creation or
imposition of any security interest in, or lien or encumbrance upon, any of the
assets of the Guarantor, and will not result in any breach of, or constitute a
default under, any mortgage, deed of trust, lease, loan or credit agreement or
other instrument to which Guarantor is a party or by which Guarantor may be
bound or affected.
3.3 No representation or warranty by Guarantor contained herein ormi any
certificate or other document furnished by Guarantor contains any untrue
statement of material fact or omits to state a material fact necessary to make
such representation or warranty not misleading in light of the circumstances
under which it was made.
3.4 Each consent, approval or authorization of, or filing, registration or
qualification which is required to be obtained or effected by the Guarantor in
connection with the execution and delivery of this Guaranty or the undertaking
or performance of any obligation hereunder has been obtained or effected.
3.5 Guarantor will immediately advise the Lender in writing of any
litigation or proceeding in which Guarantor is a party if an adverse decision
therein would require Guarantor to pay over more than Fifty Thousand Dollars
($50,000.00) or deliver assets the value of which exceeds such sum (whether or
not the claim is considered to be covered by insurance), or involving Guarantor
that might materially and adversely affect Guarantor's operations, financial
condition, property or business.
3.6 The laws of the State of New Mexico will govern the interpretation,
validity, enforcement, and effect of this Guaranty, except to the extent that
the laws of tile United SLates may prevail. The provisions of this Guaranty are
severable and, should any provision hereof be determined to be unlawful, the
remaiing provisions hereof will remain and continue to have full force and
effect. Guarantor hereby consents to the jurisdiction of any court located
within the State of New Mexico over its person in any action to enforce this
Guaranty, and agrees that service of process may be made wherever Guarantor may
be found and that such service shall be valid and binding as if personal service
had been made upon Guarantor within the State of New Mexico.
3.7 Guarantor hereby waives any claim of exemption or priority under New
Mexico law and consents that any subsequent execution for the indebtedness may
be satisfied without limitation or exclusion by any such exemption or priority.
3.8 This Guaranty will bind the successors in interest and assigns of
Guarantor and will inure to the benefit of Lender, its successors in interest
and assigns.
IN WITNESS WHEREOF, Guarantor has signed and executed this Guaranty as of the
date indicated above. do
Amortibanc Management, LC
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, Vice President
