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MORTGAGE
THIS MORTGAGE ("Mortgage"), is made to be effective March /~r'~. 2005, by
ARTURO H. PERALTA-RAMOS, II1, P.O. Box 463, Jackson, Wyoming 83001 ("Mortgagor"),
and Mary K. Weiss', Trustee of the Mary K. Weiss Revocable Trust ("Mortgagee"). '
WITNESSETH:
That Mortgagor hereby irrevocably GRANTS, BARGAINS, SELLS, CONVEYS AND
WARRANTS TO MORTGAGEE, WITH POWER OF SALE, that certain real property situated in
Lincoln County, State of Wyoming, described as follows:
PARCEL 1: Lots 12, 13, 14, 15, 16, 17, and 18, West Thayne, a subdivision
situated in the city of Thayne, Lincoln County, Wyoming, according to the
official plat thereof on file and of record in said county.
PARCEL 2: Beginning on the West R.O.W.U.S. 89 N Highway 16 feet west
of the Center Section 23, T34N, R119W, and running thence 3528 feet West
across Salt River to Existing fence corner point (c), thence northerly along
existing fence line c-d-e-f-g-h-i-j-k-I-m-n-o-p, the centerline of the East West
County road and west bank Salt River, thence East 1396 feet along County
Road Centerline point (5), thence S 7°50, E, 112 feet to point (4), thence S
11°45' E, 280 feet to point (3) thence N 87°30' E, 220 feet to point (2), thence
South 946 feet to point (q), thence East 2033 feet more or less to point (r)
on the West bank East Side Canal, thence southerly along said west bank
canal 363 feet to point (s), thence West 77 feet, thence South 2°0' E, 196
feet, along west property line Dana Cold Storage Tract to point (7), thence S
0°0' E, 600 feet to point (8), thence East 217 feet more or less to West
R.O.W.U.S. 89 Highway thence Southerly along said West R.O.W. 195 feet
more or less to point (a) the place of beginning. EXCEPTING THEREFROM
all lots situated in the West Thayne, a subdivision situated in the city of
Thayne, Lincoln County, Wyoming, according to the official plat thereof on
file and of record in said county;
TOGETHER WITH: (1) All buildings, fixtures and improvements thereon and all
water rights, rights-of-way, tenements, hereditaments, privileges and
appurtenances thereunto belonging, now owned or hereafter acquired, however
evidenced, used or enjoyed with said premises or belonging to the same; (2) All
right, title and interest hereafter acquired in or to any of said premises; (3) All
heating, air conditioning, plumbing and lighting facilities, equipment and fixtures
now or hereafter installed upon or within said premises, used or proper or
necessary to constitute the said premises a habitable, usable or operating unit,
all of said property being designated and deemed for the purposes of this
instrument a part of the realty; and (4) All of the rents, issues and profits of said
premises, SUBJECT, HOWEVER, to the right, power and authority hereinafter
conferred upon Mortgagee to collect and apply such rents, issues and profits (all
of the foregoing being collectively referred to herein as the "Property");
RECEIVED 7/11/2005 at 11:38 AM
RECEIVING # 909843
BOOK: 590 PAGE: 578
JEANNE WA GNER
LINCOLN COUNTY CLERI' KEMMERER, WY
.00579
FOR THE PURPOSE OF SECURING:
Two promissory notes from Mortgagor to Mortgagee, one in the pnncipal amount of Two
Million Dollars ($2,000,000.00) and the other in the amount of Two Million Five Hundred
Thousand Dollars ($2,500,000.00) (collectively the "Notes").
Payment of all sums expended or advanced by Mortgagee under or pursuant to the
terms hereof and the Notes, and performance of each agreement of Mortgagor contained herein
and in the Notes.
TO PROTECT THE SECURITY OF THIS MORTGAGE AND FOR OTHER PURPOSES,
MORTGAGOR AGREES:
To keep the Property in good condition and repair; not to remove or demolish any
building thereon; to complete and restore promptly and in a good and workmanlike manner any
building which may be damaged or destroyed thereon, and to pay when due all claims for labor
performed and materials furnished therefor; to comply with all laws, covenants and restrictions
affecting the Property; not to commit or permit waste thereof; not to commit or permit any act
upon the Property in violation of the law; to do all other acts which from the character or use of
the Property may be reasonably necessary, the specific enumerations herein not excluding the
general.
To provide, maintain and deliver to Mortgagee insurance of such type or types and
amounts as Mortgagee may reasonably require on the improvements now existing or hereafter
erected or placed on the Property. Such insurance shall be carried in companies reasonably
approved by Mortgagee with loss payable clauses in favor of and in form acceptable to
Mortgagee. In the event of loss, Mortgagor shall give immediate notice to Mortgagee, who may
make proof of loss. Each insurance company concerned hereby is authorized and directed to
make payment for such loss directly to Mortgagee instead of to Mortgagor and Mortgagee
jointly, and the insurance proceeds, or any part thereof, may be applied by Mortgagee, at its
option, to the reduction of the indebtedness hereby secured or to the restoration or repair of the
property damaged. All insurance required shall be taken out and maintained in responsible
insurance companies licensed to do business in the State of Wyoming. Mortgagor will deposit
with Mortgagee policies evidencing all such insurance, or a certificate or certificates issued by
the respective insurers stating that such insurance is in force and effect. Each policy of
insurance herein required shall contain a provision that the insured shall not cancel, refuse to
renew or materially modify the policy without giving written notice to Mortgagee at least thirty
(30) days before the cancellation, non-renewal or modification becomes effective. Before the
expiration of any policy of insurance herein required, Mortgagor shall furnish Mortgagee
evidence satisfactory to Mortgagee that the policy has been renewed or replaced by another
policy satisfactory to Mortgagee.
To deliver to, pay for and maintain with Mortgagee until the indebtedness secured
hereby is paid in full, such evidence of title as Mortgagee may reasonably require, including
policies of title insurance and any extensions or renewals thereof or supplements thereto.
To pay before delinquent all taxes and assessments, including interest and penalties,
affecting the Property and the improvements thereon; to promptly pay and discharge all
encumbrances, charges and liens on the Property which at any time are, or appear to be, prior
or superior to the lien created by this Mortgage. The failure of Mortgagor to make any of such
payments shall be a default under this Mortgage.
Weiss Revocable Trust. -Ranch Mortgage - Page 2
To pay immediately and without demand all sums expended hereunder by Mortgagee,
with interest from the date of expenditure at the rate provided in the Notes secured hereby, until
paid, and the payment thereof shall be secured by this Mortgage.
Should Mortgagor fail to make any payment or to do any act as herein provided, then
Mortgagee, without obligation so to do and without notice to or demand upon Mortgagor and
without releasing Mortgagor from any obligation hereunder, may make or do the same in such
manner and to such extent as Mortgagee may deem necessary to protect the security hereof,
Mortgagee being authorized to enter upon the Property for such purposes.
IT IS MUTUALLY AGREED THAT:
Without affecting the liability of any person, including Mortgagor, for the payment of any
indebtedness secured hereby, or the lien of this Mortgage on the remainder of the Property for
the full amount of any indebtedness unpaid, Mortgagee may from time to time and without
notice:
Release any person or entity liable for payment of any of the indebtedness;
Extend the time for payment or otherwise alter the terms of payment of any of the
indebtedness, or any portion thereof;
Alter, substitute or release any Property securing the indebtedness.
Upon proper written request of Mortgagor made pursuant to applicable Wyoming law
stating that all sums secured hereby have been paid, and upon payment by Mortgagor of
Mortgagee's fees, Mortgagee shall discharge or release this Mortgage.
As additional security, Mortgagor hereby assigns to Mortgagee, during the continuance
of this Mortgage, all leases, rents, issues, and profits of the Property affected by this Mortgage.
Upon an event of default hereunder, and in addition to the other remedies provided for herein,
Mortgagor, without demand for payment or notice to the Mortgagee, may (i) debit any account
or accounts maintained by Mortgagee with Mortgagor or any subsidiary or affiliate of Mortgagor
(now or in the future) and set-off and apply any balance or deposits (general, special, time,
demand, provisional, final, matured, unmatured, contingent or absolute) in the account(s) and
any sums due or payable from Mortgagee or any subsidiary or affiliate of Mortgagee, to the
payment of any and all amounts owed by Mortgagor hereunder. Until Mortgagor shall default in
the payment of any indebtedness secured hereby or in the performance of any agreement
hereunder, Mortgagor shall have the right to collect all such amounts otherwise payable to
Mortgagor under any lease of any portion of the Property, or rents, issues, and profits earned
prior to default as they become due and payable. If Mortgagor shall default as aforesaid,
Mortgagor's right to collect any of such monies shall cease and Mortgagee shall have the right,
with or without taking possession of the Property affected hereby, to collect all amounts
otherwise payable to Mortgagor under any lease of any portion of the Property, or rents, issues,
and profits. Failure or discontinuance of Mortgagee at any time or from time to time to collect
any such monies shall not in any manner affect the subsequent enforcement by Mortgagee of
the right, power, and authority to collect the same. Nothing contained herein, nor the exercise
of the right by Mortgagee to collect, shall be, or be construed to be, an affirmation by Mortgagee
of any tenancy, lease or option, nor an assumption of liability under, nor subordination of the lien
or charge of this Mortgage, to any such tenancy, lease or option.
Upon any default by Mortgagor hereunder, Mortgagee may, at any time after giving
notice of such default to Mortgagor, enter upon and take possession of the Property or any part
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.0055
thereof, either in person, by agent, or by a receiver to be appointed by a court (Mortgagor
hereby consenting to the appointment of Mortgagee as such receiver), and without regard to the
adequacy of any security of the indebtedness hereby secured, and in its own name sue for or
otherwise collect said amounts otherwise payable to Mortgagor under any lease of any portion
of the Property, including the rents, issues, and profits, including those past due and unpaid,
and apply the same, less costs and expenses of operation and collection including reasonable
attorneys' fees, upon any indebtedness secured hereby, and in such order as Mortgagee may
determine.
If any portion of the real property that secures this Mortgage is taken by eminent domain
or is destroyed or damaged:
Mortgagor shall proceed promptly to replace, repair, rebuild and restore the real property
to substantially the same condition as existed before the taking or event causing the damage or
destruction, with such changes, alterations and modifications (including substitution or addition
of other property) as may be approved by Mortgagee and which will be suitable for continued
operation of the business of Mortgagor.
All net proceeds of any condemnation award or insurance claim shall be paid directly to
Mortgagee, and Mortgagee shall be entitled at its option to commence, appear in and prosecute
in its own name any action or proceedings. Mortgagee shall also be entitled to make any
compromise or settlement in connection with such taking or damage. In the event any portion of
the real property is taken or damaged, Mortgagee shall have the option, in its sole and absolute
discretion, to apply all such net proceeds, after deducting therefrom all costs and expenses
(regardless of the particular nature thereof and whether incurred with or without suit), including
attorneys' fees, incurred by it in connection with such net proceeds, to any indebtedness
secured hereby and in such order as Mortgagee may determine, or to apply all such net
proceeds, after such deductions, to the restoration of the real property upon such conditions as
Mortgagee may determine. If the net proceeds are not sufficient to pay such costs in full,
Mortgagor will nonetheless complete the same and will pay that portion of the cost thereof in
excess of the amount of the net proceeds. All net proceeds received from the condemnation
and any balance of net proceeds remaining after payment of all costs of any repair, rebuilding,
replacement or restoration shall be paid to Mortgagee and considered a loan prepayment and
the principal balance of the Notes shall be reduced thereby in accordance with the prepayment
provisions of the Notes.
Mortgagee will cooperate fully with Mortgagor in filing any proof of loss with respect to
any insurance policy and in the handling and conduct of any litigation, including appeals, arising
with respect thereto, and in the handling and conduct of any prospective or pending
condemnation proceedings affecting the real property or any part thereof.
The entering upon and taking possession of the Property, the collection of such amounts
otherwise payable to Mortgagor under any lease of any portion of the Property, including the
rents, issues, and profits, the collection of the proceeds of fire or other insurance policies, or the
collections of compensation or awards for any taking or damage of the Property, and the
application or release thereof as aforesaid, shall not cure or waive any default or notice of
default hereunder or invalidate any act done pursuant to such notice.
Time is of the essence hereof. Upon default by Mortgagor in the payment of any
indebtedness secured hereby or in the performance of any agreement hereunder, or in the
performance of any other agreement of Mortgagor made in connection with the loan evidenced
by the Notes, or if all or any part of the real property covered by this Mortgage, or personal
property located thereon, or any interest therein, is sold, conveyed, transferred or further
Weiss Revocable Trust. -Ranch Mortgage - Page 4
,_00582
encumbered, without the prior written consent of Mortgagee, which consent may or may not be
given by Mortgagee in its sole discretion, or if any attempt is made by Mortgagor to do so, in any
manner, without such written consent, or if the amounts otherwise payable to Mortgagor under
any lease of any portion of the Property, including the rents, issues and profits or any part
thereof are assigned (other than pursuant to this Mortgage), or if any person other than
Mortgagor or Mortgagee obtains any interest in or right to acquire said real property or personal
property located thereon without the prior written consent of Mortgagee, which consent may or
may not be given by Mortgagee in its sole discretion, then all sums secured hereby immediately
shall become due and payable at the option of Mortgagee.
Upon the default by Mortgagor under any of the provisions of this Mortgage, or an Event
of Default (as defined in the Notes) or Bankruptcy of Mortgagor, Mortgagee may declare all
sums secured hereby immediately due and payable, and Mortgagee may proceed to enforce
the provisions of this Mortgage, either by suit at law or in equity, as it may elect, or to foreclose
this Mortgage by advertisement and sale of the Property at public venue, for cash, according to
Wyoming statutes governing mortgage foreclosures, and cause to be executed and delivered to
the purchaser or purchasers at any such sale a good and sufficient deed or deeds of
conveyance of the property so sold and to apply the proceeds arising from such sale, first to the
payment of all costs and expenses incurred by Mortgagee in connection therewith, including,
without limiting the generality of the foregoing, court costs, legal fees and expenses, fees of
accountants, engineers, consultants, agents or managers and expenses of any entry or taking
of possession, holding, .valuing, preparing for sale, advertising, selling and conveying; and
second, to the persons or entities entitled thereto, as their interests may be established to
Mortgagee's reasonable satisfaction. There shall be included in any or all such foreclosure
proceedings reasonable attorneys' fees as part of the indebtedness evidenced by the Notes and
secured .by this Mortgage. In case Mortgagee shall fail promptly to foreclose upon the
occurrence of any event of default, Mortgagee shall not thereby be prejudiced in its right of
foreclosure at any time thereafter during which such default shall continue and Mortgagee shall
not be prejudiced in its foreclosure rights in the case of further default or defaults.
Each title insurance policy and all other evidences of title, and all hazard insurance
policies placed or deposited with Mortgagee shall be deemed an incident to the title to the
Property and upon foreclosure by exercise of power of sale, or otherwise, shall pass to the
purchaser and the same are hereby pledged as additional security for payment of the
indebtedness secured hereby.
Mortgagor agrees to pay to Mortgagee the costs and expenses, including reasonable
attorneys' fees, incurred by Mortgagee in instituting, prosecuting or defending any Court action if
such action involves the interpretation hereof or performance hereunder by a party hereto or the
breach of any provision hereof by a party hereto.
This shall apply to, inure to the benefit of and bind all parties hereto, their successors
and permitted assigns. The term "Mortgagee" shall mean the owner and holder, including any
pledgee, of the secured hereby. In this Mortgage, whenever the context so requires, the
singular number includes the plural.
Waiver by Mortgagee of any default by Mortgagor, or acceptance of payment or partial
payment while Mortgagor is in default, shall not constitute a waiver by Mortgagee of any
continuing or subsequent default. Failure by Mortgagee to exercise any right, power, privilege or
remedy which Mortgagee may have by reason of a default by Mortgagor shall not preclude the
exercise of such right, power, privilege or remedy so long as such default remains uncured or if
a subsequent default occurs.
Weiss Revocable Trust. -Ranch Mortgage - Page 5
',-00583
Mortgagor agrees to make no conveyance whatever in connection with the exploration of
oil and gas or other minerals on the Property and to refrain from such activity, unless Mortgagee
should consent in writing to any such conveyance or activity. Mortgagor further agrees that it will
prosecute any cause or causes of action diligently and to final conclusion arising from the
damages to the Property resulting from the exploration for gas and oil or other minerals located
thereon in such a manner as to cause damage thereto, which are recoverable in law or in equity
under the laws of Wyoming, applying the proceeds to the debt secured by this Mortgage;
provided, however, Mortgagor, with the written consent of Mortgagee; may make such
settlements out of Court as may be deemed just and equitable to the parties concerned.
Mortgagor shall give Mortgagee prompt written notice of (a) the proposed creation of any
improvement district, or county, municipal, or quasi-governmental district of any nature, and (b)
of any action in respect to such district or any currently existing district, which may affect the
Property, including, without limitation, any proposed service plan or modification of such plan,
proposed organization of such district election in regard to such district organization, the
proposed issuance of bonds by such district, whether such issuance is for a refinancing or for
the issuance of new bonds, and the proposed inclusion of the Property in any such district.
Mortgagor shall not consent to the creation of any such district or any such action in respect to a
district which may affect the Property without the prior written consent of Mortgagee, which
consent shall not be unreasonably withheld.
Mortgagor hereby warrants that, to the best of Mortgagor's knowledge, the ownership,
annexation, development, and improvement of the Property has been and is in compliance with
all federal, state and local environmental protection and hazardous waste disposal regulations
and statutes applicable thereto. Mortgagor has not received any written or oral notice of any
claim under or violation of any such laws affecting the Property, nor does it have any knowledge
of any activity leading to a violation of any federal, state or local environmental protection or
hazardous waste disposal regulations and statutes whether such activity occurred before or
during Mortgagor's ownership of the Property. Mortgagor hereby agrees to protect, defend,
indemnify and hold Mortgagee harmless from and against any and all losses, liabilities
(including strict or absolute liability), damages, injuries, expenses, and costs including, without
limitation, court costs and reasonable attorneys' fees, of any suit, settlement or judgment, and
claims of any and every kind whatsoever paid (including any fees, expenses and court costs
incurred to enforce this indemnity), incurred or suffered by, or asserted against Mortgagee by
any person or entity or governmental agency for, with respect to, or as a direct or indirect result
of, the presence on, under or at, or the escape, seepage, leakage, spillage, emission, discharge
or release from, the Property of any hazardous substance including, without limitation, any suit,
settlement or judgment or claim asserted or arising under, as amended, the Federal
Comprehensive Environmental Response, Compensation and Liability Act, the Superfund
Amendment and Reauthorization Act, the Resource Conservation Recovery Act, the Federal
Water Pollution Control Act, the Federal Environmental Pesticides Act, the Toxic Substances
Control Act, the Clean Water Act, the Clean Air Act, and any other applicable environmental
protection, waste management, resource recovery, hazardous waste control or other related
rule, regulation or statute of any state or locale in which the Property is located, including any so
called federal, state or local "Superfund" or "Superlien" statute, or any other statute, law,
ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability
(including strict liability), or standards of conduct concerning any hazardous substance, as now
or at any time by, on the behalf of, or within the control of Mortgagor. This agreement to
indemnify and hold harmless shall be in addition to any other obligations or liabilities that
Mortgagor may have to Mortgagee at common law, or by statute, or otherwise. The warranties
and indemnities contained in this paragraph shall survive the expiration and termination of the
Notes and this Mortgage and the release, discharge or foreclosure of the lien created by this
Mortgage.
Weiss Revocable Trust. -Ranch Mortgage - Page 6
00584
During the continuance of said indebtedness or any part thereof, Mortgagor will timely
pay all taxes and assessments levied on the Property (including water and/or water company
stock assessments and periodic condominium or homeowner association dues or assessments,
if any) and all amounts due or to become due on account of principal and interest on prior
encumbrances, if any (unless otherwise set forth below).
So long as this Mortgage remains in force and effect, Mortgagee shall have the right at
all reasonable times to inspect the Property given as security for said indebtedness and all
applicable books and records related thereto. Mortgagor shall also furnish at its cost, as
Mortgagee may request from time to time, a new or up-dated appraisal for the Property.
JURY WAIVER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IT IS
MUTUALLY AGREED BY AND BETWEEN MORTGAGOR AND MORTGAGEE THAT
THE RESPECTIVE PARTIES WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE
OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF, OR IN ANY WAY
CONNECTED WITH, THIS MORTGAGE OR THE INVESTMENT AGREEMENT, OR
ANY OF THE OTHER LOAN DOCUMENTS WHETHER ONE OR. MORE, AND ANY
AND ALL OTHER INSTRUMENTS EXECUTED IN CONNECTION THEREWITH,
INCLUDING THE INDEMNITIES HEREIN.
IN WITNESS WHEREOF, Mortgagor has caused this instrument to be executed
to be effective on the date first above written.
alta-Ra~os, III
AC K N O Iff/L E D t"-dVtI::_I~T__ _ ,._
STATE OF WYOMING )
)ss.
COUNTY OF TETON )
This instrument was acknowledged before me on the I &-f..2 day of June 2005,
by Arturo H. Peralta-Ramos, III i.
Witness my hand and official seal. ..~ //ff[/~,
NOTARY PUBLIC
(SEAL)
My Commission expires:
Weiss Revocable Trust. -Ranch Mortgage - Page 7