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HomeMy WebLinkAbout903026Recorded at the request of, and after recording return to: Merrill L. Weight Shadow Dancer Estates 699 Clovercrest Drive Murray, UT 84123 RECEIVED L INCOI..N ~;._.;,, I~!Ty OLERi< REAL ESTATE MORTGAGE THIS MORTGAGE (the "Mortgage") is made effective this ~(P day of]l¢.x_~.o~.,~C' 2004 by PP~SCOTT MUIR and SHARON MUIR, Utah residents whose address is 171 Pierpont Avenue, Salt Lake City, UT 84101 (herein "Mortgagor", even though two parties), in favor of SHADOW DANCER ESTATES, a Wyoming corporation whose address is c/o 699 Clovercrest Drive, Murray, Utah 84123 ("Mortgagee"). 1. GRANTING CLAUSES 1.1 General Mortgagor IRREVOCABLY GRANTS, BARGAINS, SELLS, MORTGAGES, CONVEYS, WARRANTS AND ASSIGNS unto Mortgagee, with the power of sale and together with right of entry and possession, the following described real property (the "Property") situated in the County of Lincoln, State of Wyoming: Lot 10, Shadow Dancer Estates, a subdivision (the "Subdivision") that is part of the SE¼ of Section 10 and the NE¼ of Section 15, T36N R119W Lincoln County, Wyoming, according to the official plat thereof that was recorded on or about 11 August 2004 in the Office of the Clerk of Lincoln County, Wyoming as plat number 173-C and instrument no. 901862; TOGETHER WITH any and all improvements, easements (including easements set forth in the Subdivision plat and access easements across the Trail Ridge Subdivision that is adjacent to the Property), tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, and any reversion, reminder, rents, issue, and profits thereof; AND TOGETHER WITH: all buildings, structures, equipment, fixtures (including trees, vines and shrubs) and improvements of every kind and description now or hereafter constructed or placed thereon; all standing timber and timber to be cut located thereon; all existing and future water rights, however evidenced, including irrigation and watering equipment and systems, ditches, laterals, conduits, and rights-of-way used to convey such water or to drain the above-described property, all of which rights are hereby made appurtenant to the property, and all pumping plants, electrical generators, wind machines, and fencing and storage tanks, now or hereafter used in connection with the property, all of which are hereby declared to be fixtures; all existing and future grazing rights, leases, permits and licenses; all oil, gas, and mineral leases, permits and rights used with the property; all tenements, hereditaments, easements, rights-of-way and appurtenances to the property; and all right, title, and interest at any time of Mortgagor (or any of its bailees, agents, or instrumentalities), whether now existing or hereafter arising or acquired, whether direct or indirect, whether owned legally, of record, equitably or beneficially, whether constituting real or personal property (or subject to any other characterizations), whether created or authorized under existing or future laws or regulations, and however arising in, including without limitation, the water, water rights and other assets and items described below in sections 1.1.1 through 1.1.8 below, which shall collectively be called "Water Assets" (all of the foregoing hereafter collectively referred to as the "Property"). References to "water" and "water rights" are used herein in the broadest and most comprehensive sense of the term(s). The term "water" includes water rights and right to water or whatever rights to money, proceeds, property or other benefits are exchanged or received for or on account of any Water Assets or any conservation or other nonuse of water, including whatever rights are achieved by depositing one's shares of any Water Assets in any water bank or with any water authority, or any other water reallocation rights: 1.1.1. All water (including any water inventory in storage), water rights and entitlements, other rights to water and other rights to receive water or water rights of every kind or nature whatsoever including: (a) the groundwater on, under, or pumped fi.om or to the Property, whether as the result of groundwater rights, contractual rights or otherwise, (b) Mortgagor's right to remove and extract any such groundwater including any permits, rights or licenses granted by any governmental authority or agency or ar~y rights granted or created by any use, easements, covenant, agreement or contract with any person or entity, (c) any rights to which 'the Property is entitled with respect to surface water, whether such right is appropriative, riparian, prescriptive, decreed or otherwise and whether or not pursuant to permit or other governmental authorization, or the right to store any such water, and (d) any water, water right, water allocation, distribution right, delivery right, water storage right, or other water-related entitlement appurtenant or otherwise applicable to the Property by virtue of the Property being situated within the boundaries of any district, agency, or other governmental entity or within the boundaries of any private water company, mutual water company, or other non-govelTanental entity; 1.1.2. All stock, interest or rights (including any water allocations, voting or decision rights) in any entity, together with any and all rights from any entity or other person to acquire, receive, exchange, sell, lease, or otherwise transfer any water or other Water Assets, to store, deposit or otherwise create water credits in a water bank or similar or other arrangement for allocating water, to transport or deliver water, or otherwise to deal with any Water Asset; 1.1.3. All licenses, permits, approvals, contracts decrees, rights and interest to acquire or appropriate any water or other Water Assets, water bank or other credits evidencing any right to water or other Water Assets, to store, carry, transport or deliver water or other Water Assets, to sell, lease, exchange, or otherwise transfer any water or other Water Asset, or to change !he point for diversion of water, the location of any water or Water Asset, the place of use of any water or Water Asset, or the purpose of the use of any water or Water Asset; 1.1.4. All rights, claims, causes of action, judgments, awards, and other judicial, arbiter or administrative relief in any way relating to any water or Water Asset; 1.1.5. All storage and treatment rights for any water or any other Water Asset, whether on or off the Property or other property of Mortgagor, together with all storage tanks, and other equipment used or usable in connection with such storage and any water bank deposit credits, deposit accounts or other rights arising on account of the storage or nonuse of any water or any water or any other Water Asset; 1.1.6. All rights to transport, carry, allocate or otherwise deliver water or other Water Assets by any means wherever located; 1.1.7. All guaranties, warranties, marketing, management or service contracts, indemnity agreements, and water right agreements, other water related contracts and water reallocation rights, all insurance policies regarding or relating to any Water Asset; and 1.1.8. All rents, issues, profits, proceeds and other accounts, instruments, chattel paper, contract rights, general intangibles, deposit accounts, and other rights to payment arising from or on account of any use, nonuse, sale, lease, transfer or other disposition of any Water Asset. 1.2. Absolute Assignment of All Revenue from Water Assets. Mortgagor hereby absolutely and unconditionally assigns to Mortgagee all proceeds, rents, issues and profits from any use (apart fi-om watering plants on the Property or other ordinary use on the Property), nonuse, sale, lease, transfer or disposition of any kind of any water or any other Water Asset subject to a lien in favor of Mortgagee. That assignment shall be perfected automatically without appointment of a receiver or Mortgagee becoming a mortgagee in possession and Mortgagee shall have the right, before or after the occurrence of any default or event of default, to notify any account debtor to pay all amounts owing with respect to those proceeds, rents, issues and profits directly to Mortgagee. Except as otherwise agreed in writing by Mortgagee, Mortgagee may apply any such collection (and any rents, issues, profits and proceeds) to any indebtedness owed to Mortgagee in the priority set forth in the Note. Muirs to Shadow Dancer Estates Real Estate Mortgage Consisting ofTen (I0) Pages 2 1.3. Assignment of Rents. Mortgagor ABSOLUTELY AND UNCONDITIONALLY ASSIGNS, transfers, conveys and sets over to Mortgagee all the rents, royalties, issues, profits, revenue, income and other benefits of the Property arising from the use or enjoyment of all or any portion thereof or from any lease, mineral lease, or agreement pertaining thereto (collectively the "Rents"); SUBJECT, HOWEVER, to the right, power and authority given to and conferred upon Mortgagor by Section 3.3 hereof. · 1.4. Personal Property Security Agreement. All of the Property will be considered to the fullest extent of the law to be real property for purposes of this Mortgage. To the extent that any of the Property (including without limitation any Water Assets or fixtures) is deemed to constitute, is adjudicated to be, or declared to be personal prop~erty, this Mortgage shall also be deemed to be a security agreement. Mortgagor does hereby create and grant to Mortgagee a security interest in all such personal property described herein; and further, grants to Mortgagee all of the rights and remedies of a secured party under the Uniform Commercial Code and other applicable state law, which rights are cumulative. 1.5. Fixture Filing. This Mortgage shall also be deemed to be a fixture filing under the Uniform Commercial Code and is to be recorded in the county real estate records. 1.6. ALL OF THE FOREGOING GRANTS ARE FOR THE PURPOSE OF SECURING THE FOLLOWING (collectively the "Indebtedness"): (a) payment of the indebtedness or obligations evidenced by a promissory note (the "Note") that is in the original principal amount of $47,127.31, that is dated on or about the date of this Mortgage, that was made by Mortgagor, as borrower, in favor of Mortgagee, as lender and holder, and that has a stated maturity date of one year after the date of this Mortgage (the maturity date may be extended by the joint, written consent of Mortgagor and Mortgagee; the maturity date may be accelerated as provided in the Note and this Mortgage), at the times, in the manner and with interest (the initial interest rate under the Note is 7.5% per annum, with default interest at the rate of 12% per annum) as therein set forth; (b) the payment of such additional loans or advances, including advances under a revolving line of credit, with interest thereon, as hereafter may be made to one or more of Mortgagor, or Mortgagor's successors or assigns, and/or to parties whose obligation Mortgagor is guaranteeing, evidenced by a promissory note or otherwise and any obligations evidenced by any guaranties executed by Mortgagor in favor of Mortgagee; PROVIDED HOWEVER, THAT, such additional loans advances guaranty obligations shall be secured by this Mortgage only if the promissory note, guaranty, or other document evidencing such loans or advances shall recite that it is to be secured by this Mortgage; (c) the payment of any substitute notes, renewals, reamortizations, and extensions of all indebtedness secured by this Mortgage; (d) the performance of every obligation and agreement of one or more of Mortgagor whether contained or incorporated by reference in this Mortgage, or contained in any loan document or guaranty executed by Mortgagor in favor of Mortgagee, with respect to any loan, advance, or guaranty secured by this Mortgage; and (e) the payment of all sums expended or advanced by Mortgagee under or pursuant to the terms of this Mortgage, including attorney's fees incurred by Mortgagee in the enforcement of this Mortgage, together with interest thereon as herein provided. The continuing validity and priority of this Mortgage as security for future loans, advances, or guaranties shall not be impaired by the fact that at certain times hereafter there may exist no outstanding indebtedness fi.om Mortgagor to Mortgagee or no commitment to make loans or advances. 2. Mortgagor Covenants. TO PROTECT THE SECURITY OF THIS MORTGAGE, MORTGAGOR AGREES: 2.1. DELIBERATELYLEFTBLANK. 2.2. Care of Property. To keep the Property in good condition, working order and repair; if the Property is used for agricultural purposes, then to care for the Property in accordance with standards of good husbandry and to keep all trees, vines and crops on said land properly cultivated, irrigated, fertilized, sprayed, and fumigated; not to remove, destroy or suffer the removal or destruction of any useable building, fence, canal, well or other improvements or fixtures thereon without the prior written consent of Mortgagee; if the Property is used for agricultural purposes, then not to remove, replace or alter any horticultural or viticultural tree, vine or shrub planted thereon without the prior written consent of Mortgagee, except in the ordinary course of business; to complete or restore promptly and in good and workmanlike manner any building which ~nay be constructed, damaged or destroyed thereon; to comply with all laws, covenants and restrictions affecting the Property; not to commit or permit Muirs to Shadow Dancer Estates Real Estate Mortgage Consisting ofTen (10) Pages 3 .0024 waste thereo~; not to conumt, suffer or permit any act upon the Property in violation of law; to do all other acts which fi.om the character or use of the Property may be reasonably necessary, the specific enumerations herein not excluding the general; to observe and perform alt obligations of Mortgagor under any lease of the Property. 2.3. Insurance. To provide, maintain and deliver to Mortgagee: (a) fire insurance of the type and in amounts as Mortgagee may reasonably require, with loss payable clauses solely in favor of Mortgagee; (b) liability insurance in amounts as Mortgagee may reasonably require, with Mortgagee listed as an additional insured; and (c) and all other types of insurance of the type and in amounts as Mortgagee may reasonably require. In the event of loss, the insurance proceeds, or any part thereof, may be applied by Mortgagee, at its option, to the reduction of the Indebtedness or to the restoration or repair of the property damaged. In the event that Mortgagor shall fail tO provide satisfactory hazard insurance, Mortgagee may procure, on Mortgagor's behalf, insurance in favor of Mortgagee alone. If insurance cannot be secured by Mortgagor to provide the required coverage, such inability shall constitute an event of default hereunder. 2.4. Proceedings. To appear in and litigate any action or proceeding purporting to affect the security hereof, the title to the Property, or the rights or powers of Mortgagee; Mortgagee may appear in and litigate any such action or proceedings, including any bankruptcy, partition or condemnation proceeding, affecting the property, or Mortgagee's interest therein, in which event Mortgagor agrees to pay all costs and expenses thereof, including attorney's fees and costs of securing evidence of title. 2.5. Taxes and Assessments. To pay on or before the due date all taxes and assessments affecting the Property, including all assessments upon water company stock and all rents, assessments and charges for water, appurtenant to or used in connection with the Property; to pay, when due, all encumbrances, charges, and liens, on the Property or any part thereof, which at any time appear to be prior or superior hereto. 2.6. Foreclosure. In case of any suit to foreclose this Mortgage or to collect any charge arising out of the debt hereby secured, or of any suit which Mortgagee may deem necessary to prosecute or defend to effect or protect the lien herein, including any proceeding in bankruptcy, or if Mortgagee retains an attorney to advise Mortgagee in connection with this Mortgage or any other agreement related to the Indebtedness, to pay a reasonable sum as attorney's fees and all costs and legal expenses in connection with said suit, and further agrees to pay the reasonable costs of searching the records and abstracting or insuring the title, and such sums, costs and expenses shall be secured hereby and shall be included in any decree of foreclosure. The fees and costs described herein and elsewhere in this Mortgage shall be in addition to those set forth in the Note or any other written agreement between Mortgagor and Mortgagee. 2.7. Protection of Property. Should Mortgagor fail to make any payment or to do any act as provided for in this Mortgage, then Mortgagee, but without obligation to do so and without notice to or demand upon Mortgagor and without releasing Mortgagor from any obligation hereof, may: make or do the same in such manner and to such extent as either may deem necessary to protect the Property, Mortgagee being authorized to enter upon the Property for such purposes; commence, appear in and litigate any action or proceeding purporting to affect the security hereof or the rights or powers of Mortgagee, including any bankruptcy proceeding affecting the Property; pay, purchase, contest, or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or superior hereto; and in exercising any such powers, incur any liability, expend whatever amounts in its absolute discretion it may deem necessary therefore, including attorney's, accountant's, and appraisal fees, environmental fees, and costs of securing evidence of title, and all amounts so expended shall bear interest at the highest rate as is provided for in the note or notes secured by this Mortgage, shall be obligations of Mortgagor secured by this Mortgage and on demand by Mortgagee shall be immediately repaid by Mortgagor to Mortgagee. Nothing contained herein shall prohibit Mortgagee from entering the Property, at a reasonable time and upon reasonable notice to Mortgagor, without incurring or assuming any obligations or liabilities whatsoever, for the sole purpose of inspecting the Property. 2.8. Payments. To pay immediately and without demand all sums expended by Mortgagee pursuant to the provisions hereof, with interest fi'om date of expenditure at the highest rate as is provided for in the note or notes secured by this Mortgage. In the event that such sums are not immediately paid, they shall be added, to the principal balance of the Indebtedness and shall accrue interest as herein set forth. All such sums shall be secured hereby. Muirs to Shadow Dancer Estates Real Estate Mortgage Consisting of Ten (1 O) Pages 2.9. Environmental Representations, lVarranties and Covenants. 2.9.1. For ease in drafting, this Mortgage has been prepared using a standard form mortgage, with certain adaptations. By its literal terms, the obligations of Mortgagor. in this section 2.9 would apply to past, present and future acts upon the Property. Given that Mortgagor has purchased the Property from Mortgagee, the application of the following provisions of this section 2.9 to activities on the Property prior to the date of this Mortgage would be inappropriate, except as such activities have been carried out by Mortgagor or those claiming under Mortgagor. Hence, the following obligations by Mortgagor under this section 2.9 shall be deemed to apply only to acts or omissions to act from and after the date of this Mortgage and to acts or omissions to act of Mortgagor, its agents, contractors and representatives prior to the date of this Mortgage. Subject to the foregoing limitation, Mortgagor hereby further represents, warrants and covenants as follows: 2.9.1.1. No pollutants, contaminants (including oil or other petroleum products), toxic or hazardous substances, or solid or hazardous wastes, as such terms are defined under any federal, state or local Environmental Law, regulation or ordinance (hereinafter "Contaminants") have been, are being or will be generated, manufactured, produced, stored, disposed of, discharged, released threatened to be released, or otherwise allowed to migrate or escape on,. under or from the Prope~:ty in such quantities or concentrations as would violate any federal, state or local Environmental Law, regulation or ordinance or as would require Mortgagor to report such condition to any governmental authority or to undertake removal or remedial action to clean up such contaminants; 2.9.1.2. No Contaminants are located on, in or under any property located adjacent to the Properly in such quantities or concentrations as would constitute a violation of any Environmental Law or as would require the owner of the adjacent property to report such condition to any governmental authority or to undertake removal or remedial action to clean up such Contaminants; 2.9.1.3. Neither the Property, n,or any portion thereof, nor any adjacent property or portion thereof, has been or is proposed to be listed under the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601, et seq.), or any analogous state law. Mortgagor shall immediately notify Mortgagee if Mortgagor acquires any information concerning the listing or proposed listing of the Property or any adjacent property and shall provide Mortgagee with any documents in Mortgagor's possession relative thereto; 2.9.1.4. No hazardous wastes, as deemed under the Federal Resource Conservation and Recovery Act (42 U.S.C. Section 6901, et seq.), or any analogous state law ("Hazardous lVastes"), have been, are being or will be stored or treated in surface impoundments or other structures or facilities located on the Property that are partially or entirely below the ground surface; 2.9.1.5. No litigation, investigation, administrative order, consent order, agreements, or other action, proceeding Or settlement (hereinafter "Action") has previously been brought, is now pending, or to the best knowledge of Mortgagor threatened against or anticipated by Mortgagor, with respect to Mortgagor's use or management of Hazardous Materials or Hazardous Wastes or the environmental condition of the Property, including any underlying groundwater. Upon learning thereof, Mortgagor shall immediately notify Mortgagee of any such Action or threatened Action and provide Mortgagee with copies of all documentation relative thereto; and 2.9.1.6. Except as disclosed in writing to Mortgagee, no underground tanks, wells (except domestic water wells), septic tanks, ponds, pits or any other storage tanks ("Tanks") (whether currently in use or abandoned) are or were located on or under the Property and no Tanks are or were serving the Property described herein. With respect to any Tanks disclosed in writing to Mortgagee, Mortgagor shall comply with all federal, state and local laws, regulations and ordinances and any requirements of city or county fire departments, applicable to the maintenance and use of such Tanks, including, without limitation, Title 40 of the Code of Federal Regulations Part 112. 2.9.2. Nothing herein shall be deemed to prohibit Mortgagor from: (a) using, handling or storing hazardous materials or substances, as deemed under any federal, state or local law, regulation or ordinance ("Hazardous Materials") or (b) storing or treating non-hazardous wastes, so long as such activities are carried out (y) Muirs to Shadow Dancer Estates Real Estate Mortgage Consisting of Ten (I O) Pages 5 · ,-0',326 in a good and husbandlike manner in the ordinary course of business, and (z) in compliance with all applicable environmental laws, regulations, permits, orders or other requirements. 2.9.3. In the event that Mortgagor is in breach of any of its representations, warranties or covenants as set forth above, Mortgagor, at its sole expense, shall take all action required, including environmental cleanup of the Property, to comply with the representations, warranties and covenants herein or applicable legal requirements and, in any event, shall take all action deemed necessary by appropriate governmental authorities. Mortgagee shall have the right, but not the obligation, to advise appropriate governmental authorities of any environmental condition on or affecting the Property that constitutes or may constitute a breach of Mortgagor's obligations hereunder. 2.9.4. Mortgagor and its successors and assigns shall indenmify, defend, protect, and hold harmless Mortgagee, its directors, officers, employees, agents, shareholders, successors and assigns and their officers, employees or agents, from and against any and all claims, suits, damages, liens, losses, liabilities, interest, judgments, response and cleanup costs, demands, actions, causes of action, injuries, administrative proceedings and orders, consent agreements and orders, penalties, costs and expenses (including any fees and expenses incurred in enforcing this indemnity, any out-of-pocket litigation costs and the reasonable fees and expenses of counsel) of any kind whatsoever ("Claims") paid, incurred or suffered by, or asserted against Mortgagee, including but not limited to Claims arising out of loss of life, injury to persons, trespass or damages to or contamination of property or natural resources, or injury to business, in connection with or arising out of the activities of Mortgagor on the Property, Mortgagor's predecessors in interest, third parties who have been invited, permitted or trespassed on the Property, or parties in a contractual relationship with Mortgagor, or any of them, or which directly or indirectly arise out of or result from or in any way connected with the Property, whether or not caused by Mortgagor or within the control of Mortgagor, including without limitation: (a) the presence, use, generation, treatment, storage, disposal, release, threatened release, or discharge of any Hazardous Material or Contaminant at or from the Property and/or the cleanup of Hazardous Materials or Contaminants within, on or under the Property; (b) Mortgagor's breach of any of the representations, warranties and covenants contained herein; and (c) Mortgagor's violation or alleged violation of any applicable Environmental Law, regulation or ordinance. 2.9.5. Mortgagor's representations, warranties, covenants and indemnities contained herein shall survive the occurrence of any event whatsoever, including without limitation the payoff of any Indebtedness, the release or foreclosure of this Mortgage, the acceptance by Mortgagee of a deed in lieu of foreclosure, or any transfer or abandonment of the Property. 2.9.6. The term "Environmental Law" shall mean any federal, state or local law, statute, ordinance, or regulation, now in effect or hereinafter enacted, pertaining to health, industrial hygiene, or the environmental conditions on, under or about the Property, including but not limited to enactments requiring the removal or containment of asbestos-containing materials in private buildings. 2.9.7. Mortgagor shall permit, or cause any tenant of Mortgagor to permit, Mortgagee or its agents, or independent contractors to enter and inspect the Property at any reasonable time for purposes of determining, as Mortgagee deems necessary or desirable: (a) the existence, location and nature of any Hazardous Materials or Hazardous Wastes on, under or about the Property, (b) the existence, location, nature, magnitude and spread of any Hazardous Materials or Hazardous Waste that has been spilled, disposed of, discharged or released on, under or about the Property, or (c) whether or not Mortgagor and any tenant of Mortgagor is in compliance with applicable Environmental Law. If Mortgagor or its tenants fail to comply fully with the terms of this section 2.9.7, then Mortgagee may obtain affn-mative injunctive relief to compel such compliance 2.10. Grazing Rights. If any portion of the Property described m this Mortgage is used by Mortgagor as the basis for obtaining grazing permits or other grazing rights issued by any govermnental agency, including without limitations the Forest Service, U.S. Department of Agriculture or the Bureau of Land Management, U.S. Department of Interior, Mortgagor covenants and agrees as follows: 2.10.1. Said grazing permits or other rights are in good standing and have not been modified, reduced or limited in any other respect, except as fully disclosed in writing to Mortgagee: Muirs to Shadow Dancer Estates Real Estate Mortgage Consisting of Ten (1 O) Pages 2.10.2. Mortgagor will perform all obligations imposed as a requirement of exercise of said grazing permits or other rights and will comply with all laws, rules and regulations applicable thereto; 2.10.3. Mortgagor will take such timely action as may be required to cause the renewal or reissuance of said grazing permits or other rights from time to time as they .expire during the term thereof. Mortgagor agrees and acknowledges that the failure to renew or cause the reissuance of any said permits for any reason, whether the result of an act or omission of Mortgagor or for reasons beyond Mortgagor's control, is an event of default hereunder and Mortgagee shall have the right to exercise the rights hereinafter set forth in this Mortgage; and 2.10.4. Mortgagor agrees to pay all fees, charges, rents or other payments accruing under said permits or any renewals thereof prior to delinquency. In the event Mortgagor fails to pay any such payment, the amount unpaid shall become a part of the Indebtedness and shall be immediately due and payable. 3. Covenants Affecting Mortgagor and Mortgagee. IT IS MUTUALLY AGREED THAT: 3.1. Condemnation. Any award of damages in connection with any taking or condemnation or injury to the Property by reason of public use, or for damages resulting from private trespass or injury to the Property, is absolutely and unconditionally assigned and shall be paid to Mortgagee, under the terms and conditions of this Mortgage pertaining to Rents. Upon receipt of such money Mortgagee shall apply the same on the Indebtedness. Mortgagor agrees to execute such further documents as may be required to effect the assigmnents herein made as Mortgagee may require. 3.2. Actions Affecting Property. At any time, without affecting the liability of any person for the payment of the Indebtedness, and without otherwise affecting the security hereof, Mortgagee may, but shall not be obligated to: (a) consent to or join in the making of any map or plat of the Property; (b) grant any easement or create any restriction thereof; (c) subordinate this Mortgage; (d) extend or modify the term of the loan or loans secured hereby; and (e) release without warranty, all or any part of the Property. 3.3 Collection of Rents. Prior to any default by Mortgagor in the payment, observance, performance and discharge of any condition, obligation, covenant, or agreement of Mortgagor contained herein, Mortgagor may, for collection and distribution purposes only, collect and receive the Rents as they come due and payable; the Rents are to be applied by Mortgagor to the payment of the principal and interest and all other sums due or payable on any promissory note or guaranty secured by this Mortgage and to the payment of all other sums payable under this Mortgage and, thereafter, so long as the aforesaid has occurred, the balance shall be distributed to the account of Mortgagor. Upon any such default, Mortgagee may at any time without notice, either in person, by agent, or by a receiver to be appointed by a court, and without regard to the adequacy of any security for the Indebtedness, enter upon and take possession of the Property or any part thereof, in his own name, sue for or otherwise collect Rents, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorney's fees, upon any Indebtedness, and in such order as Mortgagee may determine; also perform such acts of repair, cultivation, irrigation or protection, as may be necessary or proper to conserve the value of the Property;. also lease the same or any part thereof for such rental, term, and upon such conditions as its judgment may dictate; also prepare for harvest, remove, and sell any crops that may be growing upon the Property, and apply the proceeds thereof upon the Indebtedness. Without limiting the generality of the foregoing, in case of any default whereby the right of foreclosure occurs hereunder, Mortgagee shall at once become entitled to exclusive possession, use, and enjoyment of all Property, and to all Rents thereof, from the accruing of such right and during the pendency of foreclosure proceedings and the period of redemption, if there is any; and such possession, Rents shall at once be delivered to Mortgagee on request, and on refusal, the delivery of such possession, rents, issues, and profits may be enforced by Mortgagee by any appropriate civil suit or proceeding, including action or actions in ejectment, or forcible entry, or unlawful detainer or other proper legal acnon; and Mortgagee shall be entitled to a receiver for the Property and all Rents thereof, after any such default, including the time covered by foreclosure proceedings and the period of redemption, if there is any, and shall be entitled thereto as a matter of right without regard to the solvency, or insolvency of Mortgagor or the then owner of the Property, and without regard to the value of the Property or the sufficiency thereof to discharge the Indebtedness, including foreclosure costs, fees and expenses; and such receiver may be appointed by any court of competent jurisdiction on ex-parte application and without notice (notice being hereby expressly waived, and the appointment of any such receiver on any such Muirs to Shadow Dancer Estates 0528 application without notice being hereby consented to by Mortgagor on Mortgagor's own behalf) and all Rents shall be applied by such receiver, according to law and the orders and direction of the court. 3.4. No Cure. The entering upon and taking possession of the Property, the collection of such rents, issues, and profits, or the proceeds of fire and other insurance policies, or compensation or awards for any taking of or damage to the Property, and the application or release thereof as aforesaid, shall not cure or Waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. 3.5. Enforcement. Upon default by Mortgagor in payment of any Indebtedness or in performance of any agreement hereunder, all sums secured hereby shall immediately become due and payable at the option of Mortgagee and in accordance with applicable state law. In the event of default, Mortgagee: (a) may employ counsel to enforce payment of the obligations secured hereby; (b) may enforce the provisions of this Mortgage either by suit at law or in equity, as Mortgagee may elect, or by foreclosure of this Mortgage by advertisement and sale of premises, at public auction for cash, according to Wyoming Statutes governing mortgage foreclosures; (c) may 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 net proceeds arising fi.om such sale first to the payment of the costs and expenses of such foreclosure and sale and in payment of all moneys expended or advanced by Mortgagee pursuant to the provisions of Section 2.7 hereof, or other appropriate sections hereof, and then to the payment of the balance due on account of the principal Indebtedness, together with interest thereon and the surplus if any, shall be paid by Mortgagee on demand to Mortgagor; and (d) may exercise any other available remedy in accordance with other applicable state law, and may exercise such other rights and remedies granted by law and equity, which rights and remedies shall be cumulative and not exclusive. There shall be included in any or all such proceedings a reasonable attorney's fee. If Mortgagee fails promptly to foreclose on the happening of any default, then Mortgagee shall not thereby be prejudiced in its right to foreclosure at any time thereafter during which such default continues, and shall not be prejudiced in its foreclosure rights in case of further default. Mortgagee may resort to and realize upon the security hereunder and any other real or personal property security now or hereafter held by Mortgagee for the obligations secured hereby in such order and manner as Mortgagee may, in its sole discretion, determine. Resort to any or all such security may be taken concurrently or successively and in one or several consolidated or independent judicial actions or lawful nonjudicial proceedings, or both. If the obligation secured by this Mortgage is also secured by personal property, fixtures or crops, Mortgagee may enforce its security interest in the personal property, fixtures and crops and its lien under this Mortgage in any manner and in any order or sequence permitted by applicable law. All remedies are cumulative and none are exclusive; no election by Mortgagee to pursue one remedy or item of collateral shall be deemed to be a release or waiver of any other item of collateral or a release or modification of the liability of Mortgagor or any guarantor to pay and perform in full all obligations to Mortgagee. The procedures governing the enforcement by Mortgagee of its foreclosure and provisional remedies against Mortgagor shall be governed by the laws of Wyoming. In the event the property is sold under foreclosure and the proceeds are insufficient to pay the total Indebtedness, Mortgagor shall personally pay the unpaid balance, and Mortgagee will be entitled to a deficiency judgment. -3.6. No Waiver. The failure on the part of Mortgagee to promptly enforce any right hereunder shall not operate as a waiver of such right and the waiver by Mortgagee of any default shall not constitute a waiver of any other subsequent defaults. Subsequent acceptance of any payment by the holder hereof shall not be deemed a waiver of any default by Mortgagor, or of Mortgagee's rights hereunder as the result of any sale, agreement to sell, conveyance, or alienation, regardless of holder's knowledge of such default, sale, agreement to sell, conveyance, or alienation at the time of acceptance of such payment. 3.7. Successors. This Mortgage applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The term Mortgagee shall mean the holder and owner of any note secured hereby; or, if the note has been pledged, the pledgee thereof. In this Mortgage, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. All obligations of Mortgagor hereunder are joint and several. 3.8. Transfers. Muirs to Shadow Dancer Estates Real Estate Mortgage Consisting of Ten (10) Pages 9 3.8 1. General. In the event the Property, or any part thereof or any interest therein, is sold, agreed to be sold, conveyed, alienated or transferred, including any water transfer as. defined in section 3.8.2 below, contract for deed or installment land contract, by Mortgagor, or by operation of law or otherwise, except' by inheritance, without Mortgagee's prior written consent, all obligations secured hereby, irrespective of the maturity dates, at the option of the holder hereof, and without demand or notice, shall immediately become due and payable. Failure to exercise such option shall not constitute a waiver of the right to exercise this option in the event of subsequent sale, agreement to sell, conveyance or alienation. 3.8.2. Water Transfers. A water transfer is any.transfer, assignment, sale, exchange, gift, encumbrance, pledge, hypothecation, alienation, grant of option to purchase, or other disposition of, directly, indirectly or in trust, voluntarily or involuntarily, by operation of law or otherwise, or the entry into a binding agreement to do any of the foregoing with respect to all or any part of: (a) the groundwater on, under, pumped from or otherwise available to the Property, (b) Mortgagor's right to remove and extract any such groundwater including any permits, rights or licenses granted by any governmental authority or agency and any rights granted or created by any easement, covenant, agreement or contract with any person or entity, (c) any rights to which the Property is entitled with respect to surface water, whether such right is appropriative, riparian, prescriptive or otherwise and whether or not pursuant to permit or other governmental authorization, or the right to store any such water, (d) any water, water right, water allocation, distribution right, delivery right, water storage right, water allocation, or other water-related entitlement appurtenant or otherwise applicable to the Property by virtue of the Property's being situated within the boundaries of any district, agency, or other governmental entity or within the boundaries of any private water company, mutual water company, or other non-governmental entity, or (e) any shares (or any rights under such shares) of any private water company, mutual water company, or other non-governmental entity pursuant to which Mortgagor or the Property may receive any rights. 3.9. Severability. In the event any one or more of the provisions contaiued in this Mortgage or in any promissory note(s) hereby secured shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Mortgage or said promissory note(s), but this Mortgage and said promissory note(s) shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein or therein. 3.10. Receiver. Following the occurrence of an event of default under this Mortgage, Mortgagee may apply to a court of competent jurisdiction for the appointment of a receiver of the Property, upon giving notice to Mortgagor, whether or not the value of the Property exceeds the unpaid balance of the Indebtedness, whether or not waste or deterioration of the Property has occurred, and whether or not other arguments based on equity would justify the appointment. Mortgagor irrevocably, with knowledge and for valuable consideration, consents to such an appointment. Any such receiver shall have all the rights and powers customarily given to receivers in Wyoming, including the rights and powers granted to Mortgagee by this Mortgage, the power to maintain, lease and operate the Property on terms approved by the court, and the power to collect the rents and apply them to the Indebtedness or otherwise as the court may direct. Once appointed, a receiver may at Mortgagee's option remain in place until the Indebtedness has been paid in full. 3.11. DELIBERATELY LEFT BLANK. BORROWER WAIVES ALL RIGHTS OF HOMESTEAD EXEMPTION IN THE PROPERTY AND RELINQUISHES ALL RIGHTS OF CURTESY AND DOWER IN TIlE PROPERTY. TO THE FULLEST EXTENT PERMITTED BY LAW, MORTGAGOR HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS: (A) UNDER THIS MORTGAGE, THE INDEBTEDNESS OR ANY OTHER LOAN DOCUMENT OR (B) ARISING FROM ANY LENDING RELATIONSHIP EXISTING IN CONNECTION WITH THIS MORTGAGE, THE INDEBTEDNESS OR ANY OTHER LOAN DOCUMENT, AND MORTGAGOR AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A JURY. Muirs to Shadow Dancer Estates Mortgagor: PRESCOTT MUIR SHARON MUIR STATE OF ~.~+l~%- ) ) The foregoing Real Estate Mortgage was acknowledged before me thi~() Prescott Muff and Sharon Muff. day of~004 by WITNESS my hand and official seal. My Commission RHT~D\6627 Notary Public ' '"' ~ :'"/::?: [l~ x','.?t 205 Firs[ Avenue ~,, I~ .... ~ ,~, Sa!! Lake City UT 84~0q ,%'--. ,,',~,¢ [.t}y ~OiBmtSolO/i Exp~re~ "- '..' 5: "" Februa~ 15, 2006 Muirs to Shadow Dancer Estates Real Estate Mortgage Consisting of Ten (1 O) Pages 10