HomeMy WebLinkAbout904755Recorded at the request of,
and after recording return to:
Merrill L. Weight
Shadow Dancer Estates
699 Clovercrest Drive
Murray, UT 84123
RECEIVED 11122,~
RECEIVING #
BOOK: 573
JEANNE
LINCOLN COUNTY CI
~,~ at 3:45 PM
.,:.~!755
,,t ;E 271
GNER
~', KEMMERER, WY
REAL ESTATE MOR'It,
THIS MORTGAGE (the "A,Az~g~zA~A') is made effective this day -
A Hawaii resident whose address is 95-1017 Wikao St., Milii-~ni, HI"
DANCER ESTATES, a Wyoming corporation whose address ~s c/,'
C ~,:~'~. ~').
2004 by ANDRE E. LINDBERG,
"[~,~]l~ "A,~*:~?,Ea]'), in favor of SHADOW
':h,,.:ezcrest Drive, Murray, Utah 84123
1. GRANTING CLAUSES
1.1 General. Mortgagor IRREVOCABLY GRANTS, BAR(. ' i.',:.q, SELLS, MORTGAGES, CONVEYS,
WARRANTS AND ASSIGNS unto Mortgagee, with the power ~ ..... ~}c aim together with right of entry and
possession, the following described real property (the "Propertx' , ,t~:~lcd in the County of Lincoln, State of
Wyoming: '
Lot 15, Shadow Dancer Estates, a subdivision (the "Subd~,, ),,n") fl~at is part of the SE¼ of
Section 10 and the NE¼ of Section 15, T36N Rl l9W Lin, i~, (',,tmtv, Wyoming, according to
the official plat thereof that was recorded on or about 11 Au:,,~ , !~ }! I.I i~ the Office of the Clerk of
Lincoln County, Wyoming as plat number 173-C and instrm,, ,:~ ~t,,. 901862;
TOGETHER WITH any and all improvements, easements (including, <,,~cmcnts set forth in the Subdivision plat
and access easements across the Trail Ridge Subdivision that is adja(, ,,~ t,, ~hc Property), tenements, hereditaments
and appurtenances thereunto belonging or in anywise appertaining, ~,~, ~ :,,y reversion, reminder, rents, issue, and
profits thereof;
AND TOGETHER WITH: all buildings, structures, equipment, fi ~,,~, (including trees, vines and shrubs) and
improvements of every kind and description now or hereafter con:~:~, ..d {~r placed thereon; all standing timber
and timber to be cut located thereon; all existing and future water ~:,;,~, h()wcver evidenced, including irrigation
and watering equipment and systems, ditches, laterals, conduits, anti ~,~l~t~, o f way used to convey such water or to
drain the above-described property, all of which rights are herel~ ~,~:.k. appurtenant to the property, and all
pumping plants, electrical generators, wind machines, and fencin~ ~,~l ~,h,raee tanks, now or hereafter used in
connection with the property, all of which are hereby declared to bc ~ ~ c~; a~i existing and future grazing rights,
leases, permits and licenses; all oil, gas, and mineral leases, pc~:,,~ and rights used with the property; all
tenements, hereditarnents, easements, rights-of-way and appurtena~ ~,} thc property; and all right, title, and
interest at any time of Mortgagor (or any of its bailees, agents, t)~ ~;~,l~nc'ntalities), whether now existing or
hereafter arising or acquired, whether direct or indirect, whed~, ~ ,,xxncd legally, of record, equitably or
beneficially, whether constituting real or personal property (or sul,i,: ~ ~,, any other characterizations), whether
created or authorized under existing or future laws or regulation. .~.1 h~wcver arising in, including without
limitation, the water, water rights and other assets and items des~il,,.,t [}ch)w in sections 1.1.1 through 1.1.8
below, which shall collectively be called "Water Assets" (all of thc 1~ ,~,~,~ m~5 hereafter collectively referred to as
the "Property"). References to "water" and "water rights" :~, [~.,cd herein in the broadest and most
comprehensive sense of the term(s). The term "water" includes wah.~ ~ ~,ht~ and right to water or whatever rights
to money, proceeds, property or other benefits are exchanged or recc~.., ,1 h~r or on account of any Water Assets or
any conservation or other nonuse of water, including whatever righ~ :,~ ¢ achieved by depositing one's shares of
any Water Assets in any water bank or with any water authority, or :,~t t l.'r water reallocation rights:
1.1.1. All water (including any water inventory in
to water and other rights to receive water or water rights of
groundwater on, under, or pumped from or to the Proper~
contractual rights or otherwise, (b) Mortgagor's right to remm,
permits, rights or licenses granted by any governmental auth,,,
any use, easements, covenant, agreement or contract with
Property is entitled with respect to surface water, whether
decreed or otherwise and whether or not pursuant to permit
store any such water, and (d) any water, water right, water
storage right, or other water-related entitlement appurtenant ,,
the Property being situated within the boundaries of any distri,
the boundaries of any private water company, mutual water corn
0 '"70
water rights and entitlements, other rights
kind or nature whatsoever including: (a) the
hcthcr as the result of groundwater rights,
cxu'act any such groundwater including any
a?cncy or any rights granted or created by
,c~tm or entity, (c) any rights to which the
~l~t is appropriative, riparian, prescriptive,
eovernmental authorization, or the right to
)~. distribution right, delivery right, water
i~c applicable to the Property by virtue of
.,-cm..v, or other governmental entity or within
olhcr non-governmental entity;
1.1.2. All stock, interest or rights (including any v. ~,., :dh~cauons, voting or decision rights) in any
entity, together with any and all rights from any entity or othc~ .,~ to acquire, receive, exchange, sell, lease,
or otherwise transfer any water or other Water Assets, to st,,~ ,~cposit or otherwise create water credits in a
water bank or similar or other arrangement for allocating watc~ :m~l~m't or deliver water, or otherwise to deal
with any Water Asset;
1.1.3. All licenses, permits, approvals, contracts dc, ~ ~u its and interest to acquire or appropriate
any water or other Water Assets, water bank or other credits c,. ~, . m~: any right to water or other Water Assets,
to store, carry, transport or deliver water or other Water Assets ~.1. lease, exchange, or otherwise transfer any
water or other Water Asset, or to change the point for diver>~,.~ ,,t water, the location of any water or Water
Asset, the place of use of any water or Water Asset, or the purI ,,~ ~hc use of any water or Water Asset;
1.1.4. All rights, claims, causes of action, jud~ .:: ~.,. awards, and other judicial, arbiter or
administrative relief in any way relating to any water or Water. x
1.1.5. All storage and treatment rights for any watc~
Property or other property of Mortgagor, together with all stt~r
connection with such storage and any water bank deposit cr~
account of the storage or nonuse of any water or any water or a~
ofl~cr Water Asset, whether on or off the
t:mks, and other equipment used or usable in
dq)osit accounts or other rights arising on
Water Asset;
1.1.6. All rights to transport, carry, allocate or otht'~
means wherever located;
deliver water or other Water Assets by any
1.1.7. All guaranties, warranties, marketing, manag~
and water right agreements, other water related contracts an{
regarding or relating to any Water Asset; and
~ ~l' SCl'ViCe contracts, indemnity agreements,
~.r reallocation rights, all insurance policies
1.1.8. All rents, issues, profits, proceeds and oth:,
rights, general intangibles, deposit accounts, and other rights
nonuse, sale, lease, transfer or other disposition of any Water
,,:,,trots, instruments, chattel paper, contract
arising from or on account of any use,
1.2. Absolute Assignment of All Revenue from Water Asset.~. . !, ,, t?~t~or hereby absolutely and unconditionally
assigns to Mortgagee all proceeds, rents, issues and profits l~.~t~ :my use (apart from watering plants on the
Property or other ordinary use on the Property), nonuse, sale. I, ~,.~. transfer or disposition of any kind of any
water or any other Water Asset subject to a lien in favor o~ ~t,,~tF~gce. That assignment shall be perfected
automatically without appointment of a receiver or Mortgagee I,~., ~ ,~mt~, a mortgagee in possession and Mortgagee
shall have the right, before or after the occurrence of any defattll , ,~ :xcnl of default, to notify any account debtor
to pay all amounts owing with respect to those proceeds, rents, ~. ,~- and profits directly to Mortgagee. Except as
otherwise agreed in writing by Mortgagee, Mortgagee may appl) .... ,,. ~ttch collection (and any rents, issues, profits
and proceeds) to any indebtedness owed to Mortgagee in the pri{~t.. ::t fi~rth in the Note.
Mm?; to ffhadow Dancer E_ctate. c
Real E. ctato Mortgage Con. q:rahg or' Ten {I(?/
1.3. Assignment of Rents. Mortgagor ABSOLUTELY A~':i, I:!q(7ONDIT1ONALLY ASSIGNS, transfers,
conveys and sets over to Mortgagee all the rents, royalties, is~.~, i,~fils, revenue, income and other benefits of
the Property arising from the use or enjoyment of all or any p,,~ ~,,~ tl~crcof or from any lease, mineral lease, or
agreement pertaining thereto (collectively the "Rents"); SUBJ}5~i i lit )\VEVER, 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 ProI, : ~ ill bc considered to the fullest extent of the
law to be real property for purposes of this Mortgage. To thc , ~, ~i Ihat any of the Property (including without
limitation any Water Assets or fixtures) is deemed to constitm, ~ :~dimlicated to be, or declared to be personal
property, this Mortgage shall also be deemed to be a security a:.~, ~ ~t~cnl. Mortgagor does hereby create and grant
to Mortgagee a security interest in all such personal property ti: t ibcd herein; and further, grants to Mortgagee
all of the rights and remedies of a secured party under the Un i ~, .~,~ ('tmnnercial Code and other applicable state
law, which rights are cumulative.
1.5. Fixture Filing. This Mortgage shall also be deemed to 1,. ~ l~',:tm'c 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 TII~ !'[ I~I'()SE OF SECURING THE FOLLOWING
(collectively the "Indebtedness"): (a) payment of the indebted~, ,~. ,~bligations evidenced by a promissory note
(the "Note") that is in the original principal amount of $121,~ {~i}. fliat is dated on or about the date of this
Mortgage, that was made by Mortgagor, as borrower, in favor, ,i . I, ,~ l~',~gce, as lender and holder, and that has a
stated maturity date of one year after the date of this Mortgas[ ~ ,,,. ~:~turity date may be extended by the joint,
written consent of Mortgagor and Mortgagee; the maturity dm, ,,~,, bc accelerated as provided in the Note and
this Mortgage), at the times, in the manner and with interest (t!,,. ~t~ili:ll imerest rate under the Note is 7.5% per
annum, with default interest at the rate of 12% per annum) as iI~,,,.~ ~c't l'ortb; (b) the payment of such additional
loans or advances, including advances under a revolving line o~ ,~ ,l~t, with interest thereon, as hereafter may be
made to one or more of Mortgagor, or Mortgagor's success~,~ ..~ assigus, and/or to parties whose obligation
Mortgagor is guaranteeing, evidenced by a promissory note o~ ,;~1,~.~ wise and any obligations evidenced by any
guaranties executed by Mortgagor in favor of Mortgagee; PROX. !i ~t 1 ) I IOWEVER, THAT, such additional loans
advances guaranty obligations shall be secured by this Mortga~,~. ,,~,, il' th~ promissory note, guaranty, or other
document evidencing such loans or advances shall recite that ii i ~.; t,c secured by this Mortgage; (c) the payment
of any substitute notes, renewals, reamortizations, and extensio~, ,~ ,~11 i~dcbtedness secured by this Mortgage; (d)
the performance of every obligation and agreement of om. ,[ ~t~t~rc of Mortgagor whether contained or
incorporated by reference in this Mortgage, or contained in any I, ,., ~ ,t, ~c'mnent or guaranty executed by Mortgagor
in favor of Mortgagee, with respect to any loan, advance, or : [:.t~':mty secured by this Mortgage; and (e) the
payment of all sums expended or advanced by Mortgagee m,~!, ~ ~ pursuant to the terms of this Mortgage,
including attorney's fees incurred by Mortgagee in the enfo~:, '.,.~t ~f tiffs Mortgage, together with interest
thereon as herein provided. The continuing validity and prior~ .,l this Mortgage as security for future loans,
advances, or guaranties shall not be impaired by the fact th.,~ ,~ ~crtain times hereafter there may exist no
outstanding indebtedness from Mortgagor to Mortgagee or no c t~,,~,~cm to make loans or advances.
2. Mortgagor Covenants. TO PROTECT THE SECUI.!II; ()1: THIS MORTGAGE, MORTGAGOR
AGREES:
2.1. DELIBERA TEL Y LEFT BLANK.
2.2. Care of Property. To keep the Property in good conduit, ,~. xxorking order and repair; if the Property is
used for agricultural purposes, then to care for the Property in ac .... l~mcc with standards of good husbandry and to
keep all trees, vines and crops on said land properly cultivated, i~ ~ i.:t{~:d, t'crtilized, sprayed, and fumigated; not to
remove, destroy or suffer the removal or destruction of an'.. ~ ,':thio building, fence, canal, well or other
improvements or fixtures thereon without the prior written ct~, ,~t ~,l' Mortgagee; if the Property is used for
agricultural purposes, then not to remove, replace or alter an' ~.,~i~:tfltural or viticultural tree, vine or shrub
planted thereon without the prior written consent of Mortgage~, , ,ce.pt iu the ordinary course of business; to
complete or restore promptly and in good and workmanlike t,~ ,,~.~ :my building which may be constructed,
JIut~.r to ~qhadow Dancer E_ctate.¢
R e alE. ctate Jf o r~ra ge Con ~Lcb'n g or' Ten {ll.ll ~n age f
3
damaged or destroyed thereon; to comply with all laws, cove~ ,~,t. z~tltl restrictions affecting the Property; not to
commit or permit waste thereof'; not to commit, suffer or pen,,.., .t~x :~c't upon the Property in violation of law; to
do all other acts which from the character or use of the P~,~!,, ~ ~n:ty be reasonably necessary, the specific
enumerations herein not excluding the general; to observe an,! ~ l~rln all obligations of Mortgagor under any
lease of the Property. ..
2.3. Insurance. To provide, maintain and deliver to Mm-i:. ,': (:t) fire insurance of the type and in amounts
as Mortgagee may reasonably require, with loss payable el: .... .. ~olcly in favor of Mortgagee; (b) liability
insurance in amounts as Mortgagee may reasonably require, v. ,~ ~, X l,,'tgagce listed as an additional insured; and
(c) and all other types of insurance of the type and in amounts., '. I,, ?,tgee may reasonably require. In the event
of loss, the insurance proceeds, or any part thereof, may be alii,?,. ,I I,) ,Mortgagee, at its option, to the reduction
of the Indebtedness or to the restoration or repair of the propen ~l:~?ctl. hi the event that Mortgagor shall fail to
provide satisfactory hazard insurance, Mortgagee may procm, ,,~ Mortgager's behalf, insurance in favor of
Mortgagee alone. If insurance cannot be secured by Mortgag,,~ , i~{~x'icle the required coverage, such inability
shall constitute an event of default hereunder.
2.4. Proceedings. To appear in and litigate any action or i,~,.. ~,:tling purporting to affect the security hereof,
the title to the Property, or the rights or powers of Mortgagc~. ',l,,r~!~,',~gce may appear in and litigate any such
action or proceedings, including any bankruptcy, partition or c,,~,!, ~m:ttitm proceeding, affecting the Property, or
Mortgagee's interest therein, in which event Mortgagor agree, ~., I}:~' 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 ,i~;. ,I;~tc. all taxes and assessments affecting the
Property, including all assessments upon water company steel ~ t ,tll rents, assessments and charges for water,
appurtenant to or used in connection with the Property; to pay, ,.,. ~,~ ~, ,It~c, all encumbrances, charges, and liens, on
the Property or any part thereof, which at any time appear to bt. I'~ ~, '* ,,,' stq)erior hereto.
2.6. Foreclosure. In case of any suit to foreclose this IX,l,,~ ..,~)~, ~r to collect any charge arising out Of the
debt hereby secured, or of any suit which Mortgagee may dr., [., t,'ccSSal'y to prosecute or defend to effect or
protect the lien herein, including any proceeding in bankrupi~ , ,~ it' Mortgagee retains an attorney to advise
Mortgagee in connection with this Mortgage or any other :, r ,-~cnt related to the Indebtedness, to pay a
reasonable sum as attorney's fees and all costs and legal expen,~ ,~ ~'~,mcction with said suit. and further agrees
to pay the reasonable costs of searching the records and abstracts[,. ,,~ insuring the title, and such sums, costs and
expenses shall be secured hereby and shall be included in any d .... ,. ~1 fi)reclosure. The fees and costs described
herein and elsewhere in this Mortgage shall be in addition ti, t~ ,' ~cl forth in the Note or any other written
agreement between Mortgagor and Mortgagee.
2.7. Protection of Property. Should Mortgagor fail to mai .,,~ payment or to do any act as provided for in
this Mortgage, then Mortgagee, but without obligation to do s~,,,;:,l xx i thout notice to or demand upon Mortgagor
and without releasing Mortgagor from any obligation hereof, ~, ~ ~:~kc or do the same in such manner and to
such extent as either may deem necessary to protect the Propc~[. ~l~,rtgagee being authorized to enter upon the
Property for such purposes; commence, appear in and litigate .... :x'lio~l or proceeding purporting to affect the
security hereof or the rights or powers of Mortgagee, includin~ .~::. t,itnk ruptcy proceeding affecting the Property;
pay, purchase, contest, or compromise any encumbrance, char~., ,~ l ic,~ which in the judgment of either appears to
be prior or superior hereto; and in exercising any such powers, t~, t~ :my liability, expend whatever amounts in its
absolute discretion it may deem necessary therefore, includi,, .~{,~rncy's, accountant's, and appraisal tees,
environmental fees, and costs of securing evidence of title, and .,!i .~tzotmts so expended shall bear interest at the
highest rate as is provided for in the note or notes secured bY ~1,~ Xh.'~gage, shall be obligations of Mortgagor
secured by this Mortgage and on demand by Mortgagee shall /',~ ~:~cdiatcly repaid by Mortgagor to Mortgagee.
Nothing contained herein shall prohibit Mortgagee from enter~ ~l~t' Property, at a reasonable time and upon
reasonable notice to Mortgagor, without incurring or assumin:, .,~,. ,}bligations or liabilities whatsoever, for the
sole purpose of inspecting the Property.
~fuz'r~ to ~hadeavDancer E~tate~
ReelEr/ale gIaftffage Cen~i,'b)~ et'Ten [Il.?/Page. r
0h 04' '5,5
<. 027a
2.8. Payments. To pay immediately and without demand .~ .~s expended by Mortgagee pursuant to the
provisions hereof, with interest from date of expenditure at thc 1~, ~,~-,~ rate as is provided for in the note or notes
secured by this Mortgage. In the event that such sums are n,,~ ~cdiatcly paid, they shall be added, to the
principal balance of the Indebtedness and shall accrue interest .,, i~..~cin scl forth. All such sums shall be secured
hereby.
2.9. Environmental Representations, Warranties and Cove~.,, ~ : : .
2.9.1. For ease in drafting, this Mortgage has bee~, ~;~:. i,.~ctl using a standard form mortgage, with
certain adaptations. By its literal terms, the obligations of M,,.~ .~?,,r in this section 2.9 would apply to past,
present and future acts upon the Property. Given that Mortgag,,, ',;., imrchased the Property from Mortgagee, the
application of the following provisions of this section 2.9 to ;,.~ ,~c~ on the Property prior to the date of this
Mortgage would be inappropriate, except as such activities hav~ .... ~ ~'arried out by Mortgagor or those claiming
under Mortgagor. Hence, the following obligations by Mortga~,., ,~,k.r this section 2.9 shall be deemed to apply
only to acts or omissions to act from and after the date of t~,, ",l,,rtgage and to acts or omissions to act of
Mortgagor, its agents, contractors and representatives prior to u ,~- of d~is Mortgage. Subject to the foregoing
limitation, Mortgagor hereby further represents, warrants and cz,.. ,~s .t, follows:
2.9.1.1. No pollutants, contaminants (includ
hazardous substances, or solid or hazardous wastes, as such
Environmental Law, regulation or ordinance (hereinafter
generated, manufactured, produced, stored, disposed of, dis~
otherwise allowed to migrate or escape on, under or from th~
would violate any federal, state or local Environmental Lax
Mortgagor to report such condition to any governmental autho~
clean up such contaminants;
~ or other petroleum products), toxic or
.~-c defined under any federal, state or local
.... la~ts") have been, are being or will be
d released threatened to be released, or
c~'ty in such quantities or concentrations as
, ,~tllatioll or ordinance or as would require
~ undertake removal or remedial action to
2.9.1.2. No Contaminants are located on, il,
Property in such quantities or concentrations as would constitute ~
require the owner of the adjacent property to report such condit~
removal or remedial action to clean up such Contaminants;
any property located adjacent to the
of any Environmental Law or as would
governmental authority or to undertake
2.9.1.3. Neither the Property, nor any porti~,~,
thereof, has been or is proposed to be listed under the Comprehc
Liability Act (42 U.S.C. Section 9601, et seq.), or any analog,
Mortgagee if Mortgagor acquires any information concerning th~
adjacent property and shall provide Mortgagee with any documc~
,~c,~l', nor any adjacent property or portion
I.nvit'onmental Response, Compensation and
.~ic ktxv. Mortgagor shall immediately notify
.... t~r proposed listing of the Property or any
'x h ~l tgagor's possession relative thereto;
2.9.1.4. No hazardous wastes, as defined
Recovery Act (42 U.S.C. Section 6901, et seq.), or any analo,.,,
are being or will be stored or treated in surface impoundmen~
Property that are partially or entirely below the ground surface;
thc Federal Resource Conservation and
.,I,ttc law ("Hazardous Wastes"), have been,
,,mcr structures or facilities located on the
2.9.1.5. No litigation, investigation, adminism ,,rdcr consent order, agreements, or other
action, proceeding or settlement (hereinafter "Action") has preys, ~cci~ brought, is now pending, or to the best
knowledge of Mortgagor threatened against or anticipated bx '..1 ,,tv.t?)l', with respect to Mortgagor's use or
management of Hazardous Materials or Hazardous Wastes ,,~ environmental condition of the Property,
including any underlying groundwater. Upon learning thereof, ~.,i. ~:,:t~t,l- shall immediately notify Mortgagee of
any such Action or threatened Action and provide Mortgagee w,tl ,~c-s of all documentation relative thereto; and
2.9.1.6. Except as disclosed in writing to
domestic water wells), septic tanks, ponds, pits or any other sto~
abandoned) are or were located on or under the Property and no .
herein. With respect to any Tanks disclosed in writing to Mort
,?t.c. no underground tanks, wells (except
t,tlll,:sq ("rang~s") (whether currently in use or
- arc or were serving the Property described
Mortgagor shall comply with all federal,
J/mEt to .qhadow Dancer E~'ta/ex
Rea/Er/ate J/or/gage Con. q)~'ng at' Ten I'l(?/ Page. c 5
0:904'755
state and local laws, regulations and ordinances and any
applicable to the maintenance and use of such Tanks, including.
Regulations Part 112.
,~cnt~, of city or county fire departments,
. limitation, Title 40 of the Code of Federal
2.9.2. Nothing herein shall be deemed to pr. ohibil ,,t:_,,t~or l¥om: (a) using, handling or storing
hazardous materials or substances, as defined under any fed, ,~:,c or local law, regulation or ordinance
("Hazardous Materials") or (b) storing or treating non-hazardou ~.~,-,. so long as such activities are carried out
(y) in a good and husbandlike manner in the ordinary course ol ,~,-~,. ',md (z) in compliance with all applicable
environmental laws, regulations, permits, orders or other requi~ ,.. t,,. t~t,
2.9.3. In the event that Mortgagor is in breach of an,. ,, ~cprcsentations, warranties or covenants as
set forth above, Mortgagor, at its sole expense, shall take all ~, ,'quired, including environmental cleanup of
the Property, to comply with the representations, warranties an~ ~ :~,mls herein or applicable legal requirements
and, in any event, shall take all action deemed necessary by app ~,~ic' m~vernmental authorities Mortgagee shall
have the right, but not the obligation, to advise appropriat,. ,.'..cmmcntal authorities of any environmental
condition on or affecting the Property that constitutes or m:~'., . ,~-.tiltnc a breach of Mortgagor's obligations
hereunder.
2.9.4. Mortgagor and its successors and assigns sh:,l! i~dct}lnil'y, defend, protect, and hold harmless
Mortgagee, its directors, officers, employees, agents, shareh,~l,~, ~,., s~ccessors and assigns and their officers,
employees or agents, from and against any and all claims, -.~;:. d;tmages, liens, losses, liabilities, interest,
judgments, response and cleanup costs, demands, actions, catt., ~,I :~ction, injuries, administrative proceedings
and orders, consent agreements and orders, penalties, costs ..... I expenses (including any fees and expenses
incurred in enforcing this indemnity, any out-of-pocket litigati,,~ ,,>,ls and the reasonable fees and expenses of
counsel) of any kind whatsoever ("Claims") paid, incurred ,, ..,~ll'crcd by, or asserted against Mortgagee,
including but not limited to Claims arising out of loss of lil, ~*~t~t'5' to persons, trespass or damages to or
contamination of property or natural resources, or injury to 1,:: [~,.,;~4, in com~ection with or arising out of the
activities of Mortgagor on the Property, Mortgagor's predecess,,~ ~ imcrcst, third parties who have been invited,
permitted or trespassed on the Property, or parties in a contracm:,~ ~, I:~li¢mship with Mortgagor, or any of them, or
which directly or indirectly arise out of or result from or in anx ,,..t, ~'onnccted with the Property, whether or not
caused by Mortgagor or within the control of Mortgagor, in~l,~,!~, without limitation: (a) the presence, use,
generation, treatment, storage, disposal, release, threatened rc[t.t -. t,l' discharge of any Hazardous Material or
Contaminant at or from the Property and/or the cleanup of H:~ ',~,t,,~s Materials or Contaminants within, on or
under the Property; (b) Mortgagor's breach of any of the rel~, [ ~t:ttions, warranties and covenants contained
herein; and (c) Mortgagor's violation or alleged violation of :t~, ~,l~plicable Environmental Law, regulation or
ordinance.
2.9.5. Mortgagor's representations, warranties, ct,,., ~t.t~ls :md indemnities contained herein shall
survive the occurrence of any event whatsoever, including w ith,~ limitation the payoff of any Indebtedness, the
release or foreclosure of this Mortgage, the acceptance by I¥1,,~q .:~,,,c. of a deed in lieu of foreclosure, or any
transfer or abandonment of the Property.
2.9.6. The term "Environmental Law" shall mean am i,.,l,.~tl, state or local law, statute, ordinance, or
regulation, now in effect or hereinafter enacted, pertaining t(, i~ .~llls, industrial hygiene, or the environmental
conditions on, under or about the Property, including but n~ i/lililcd lo enactments requiring the removal or
containment of asbestos-containing materials in private buildings.
2.9.7. Mortgagor shall permit, or cause any tenant ol ~t,,~ t?',~?r to permit, Mortgagee or its agents, or
independent contractors to enter and inspect the Property at an,, ~:~,{mablc time for purposes of determining, as
Mortgagee deems necessary or desirable: (a) the existence, lo~:,~.,~ :md nature of any Hazardous Materials or
Hazardous Wastes on, under or about the Property, (b) the exit. i. ~, ,... l~cation, nature, magnitude and spread of
any Hazardous Materials or Hazardous Waste that has been spill, I ~li~poscd of, discharged or released on, under
or about the Property, or (c) whether or not Mortgagor and :~,~ ~cn:mt of Mortgagor is in compliance with
Re,dE. crate Afortgage C/on.¢z?t~hg or' Ten {l~,l/ t*age_c
0,904'?S15
applicable Environmental Law. If Mortgagor or its tenants fail t .... ~I~l? fully with the terms of this section 2.9.7,
then Mortgagee may obtain affirmative injunctive relief to comp~.i ~.. I~ L:~mll)liance.
2.10. Grazing Rights. If any portion of the Property descri}. ~ ~ this Mortgage is used by Mortgagor as the
basis for obtaining grazing permits or other grazing rights issm~[ i~ :thy governmental agency, including without
limitations the Forest Service, U.S. Department of Agriculture, ,~ ~hc Bureau of Land Management, U.S.
Department of Interior, Mortgagor covenants and agrees as folh,.:
2.10.1. Said grazing permits or other rights are in goo, I ~ ,~,ling and have not been modified, reduced or
limited in any other respect, except as fully disclosed in writing ~,,
2.10.2. Mortgagor will perform all obligations impo:,,'. :~., :L requirement of exercise of said grazing
permits or other rights and will comply with all laws, rules and ~, , l:,[i,,ns applicable thereto;
2.10.3. Mortgagor will take such timely action as ma3 ~ ,,-~ltm-cd to cause the renewal or reissuance of
said grazing permits or other rights from time to time as they, .:~,, during the term thereof. Mortgagor agrees
and acknowledges that the failure to renew or cause the reissua, .... I :my said permits for any reason, whether the
result of an act or omission of Mortgagor or for reasons box [ ~l,,'I~agor's control, is an event of default
hereunder and Mortgagee shall have the right to exercise the rigl~ i~.~,,it~at'tcr set ~brth in this Mortgage; and
2.10.4. Mortgagor agrees to pay all fees, charges, re~ ,~ ,,thor payments accruing under said permits
or any renewals thereof prior to delinquency. In the event Molt ~ .,,~ Ihils to pay any such payment, the amount
unpaid shall become a part of the Indebtedness and shall be immc, ~,~,~I,, duc and payable.
3. Covenants Affecting Mortgagor and Mortgagee. IT IS IXlt 11' \I.I~Y AGREED THAT:
3.1. Condemnation. Any award of damages in connection ,., ~i, :~x taking or condemnation or injury to the
Property by reason of public use, or for damages resulting fi-~;~ l~ix.:ttc trespass or injury to the Property, is
absolutely and unconditionally assigned and shall be paid to IXl~,,~:.,~?cc, under the terms and conditions of this
Mortgage pertaining to Rents. Upon receipt of such money M{~ ~ .~ .~ shall apply the same on the Indebtedness.
Mortgagor agrees to execute such further documents as may be ~:, l~,i~,tl to effect the assignments herein made as
Mortgagee may require.
3.2. Actions Affecting Property. At any time, without affecti~, t!,t. liability of any person for the payment of
the Indebtedness, and without otherwise affecting the security h~.~: ,~1, ~Im'tgagee may, but shall not be obligated
to: (a) consent to or join in the making of any map or plat of th~ t',,,i)cny; (b) grant any easement or create any
restriction thereof; (c) subordinate this Mortgage; (d) extend ,,~ ~t~til}, the term of the loan or loans secured
hereby; and (e) release without warranty, all or any part of the Pt, ,; ,.r~x
3.3. Collection of Rents. Prior to any default by Mortgag,,, ,~ ~lxc payment, observance, performance and
discharge of any condition, obligation, covenant, or agreement ,,~ ',l,,'t?agor contained herein, Mortgagor may,
for collection and distribution purposes only, collect and recei,~ i,. Rents as they come due and payable; the
Rents are to be applied by Mortgagor to the payment of the princ it . ·t~td i~,erest and all other sums due or payable
on any promissory note or guaranty secured by this Mortgage an~l ~ tI~c payment of all other sums payable under
this Mortgage and, thereafter, so long as the aforesaid has occul'~, ~l~c balance shall be distributed to the account
of Mortgagor. Upon any such default, Mortgagee may at any tiroL. ~lll~tlt notice, either in person, by agent, or by
a receiver to be appointed by a court, and without regard to th~' .~l,'tlttacy of any security for the Indebtedness,
enter upon and take possession of the Property or any part there, ~! i~ his own name, sue for or otherwise collect
Rents, including those past due and unpaid, and apply the s:,,~ lc. ss costs and expenses of operation and
collection, including reasonable attorney's fees, upon any Indtq,[, ,I~x:ss, and in such order as Mortgagee may
determine; also perform such acts of repair, cultivation, irrigati~,~ ,,~ i~r,,cction, as may be necessary or proper to
conserve the value of the Property; also lease the same or any I" ~ ~ix,'cof for such rental, term, and upon such
conditions as its judgment may dictate; also prepare for harvest, ~ ,~ ~, ,vt, and sell any crops that may be growing
upon the Property, and apply the proceeds thereof upon the Intt,~,~, ,1~'%. Without limiting the generality of the
JftT/r.r to ffhadow Dancer fi.c/a/ex
Real E~tate Jfor/gage Cot:~:Oh~, or' Ten [II.1/?a3*ex
7
0 )04'755
foregoing, in case of any default whereby the right of forecl,, ~:< ,,tours hereunder, Mortgagee shall at once
become entitled to exclusive possession, use, and enjoyment ,,~ .,il l'~',,pcrty, and to all Rents thereof, from the
accruing of such right and during the pendency of foreclosure pr, .... ,lings and the period of redemption, if there is
any; and such possession, Rents shall at once be delivered to M,,~:,:~<c on request, and on refusal, the delivery of
such possession, rents, issues, and profits may be enforced Xh,rtgagee by any appropriate civil suit or
proceeding, including action or actions in ejectment, or forcibl,. ~ ~,t~;, {~r uulawful detainer or other proper legal
action; and Mortgagee shall be entitled to a receiver for the Pr~ q,,, ~., :md all Rents thereof, after any such default,
including the time covered by foreclosure proceedings and the I"' ~' ,,I {~1' redemption, if there is any. and shall be
entitled thereto as a matter of right without regard to the solvc~, ,,~ inst~lvency of Mortgagor or the then owner
of the Property, and without regard to the value of the Prtq~.. ;t,. ,~r the sufficiency thereof to discharge the
Indebtedness, including foreclosure costs, fees and expenses; a~,l ~,'lt receiver may be appointed by any court of
competent jurisdiction on ex-parte application and without no, i<< ~,,~c'c being hereby expressly waived, and the
appointment of any such receiver on any such application with,,~ ~, ~ ~<c being hereby consented to by Mortgagor
on Mortgagor's own behalf) and all Rents shall be applied by ~,t~. i~ ~.ccivcr, according to law and the orders and
direction of the court.
3.4. No Cure. The entering upon and taking possession ol ~i~, Iq'q~crty, the collection of such rents, issues,
and profits, or the proceeds of fire and other insurance policiez. , ~ <,mq)ensation or awards for any taking of or
damage to the Property, and the application or release thereof ,: ~ l, ,~ chaicl, shall not cure or waive any default or
notice of default hereunder or invalidate any act done pursuant t,, ,~,1~ n~,tice.
3.5. Enforcement. Upon default by Mortgagor in payment .,~ :~¥ Indebtedness or in performance of any
agreement hereunder, all sums secured hereby shall immedi:,~. I, I)ccome due and payable at the option of
Mortgagee and in accordance with applicable state law. In ~h~....~.m at' default, Mortgagee: (a) may employ
counsel to enforce payment of the obligations secured hereby; ,t~, ~:~y enforce the provisions of this Mortgage
either by suit at law or in equity, as Mortgagee may elect, or b3 i,,~ ~, l,~sm'c of this Mortgage by advertisement and
sale of premises, at public auction for cash, according to Wyo~,~ .. 5-:t:,mcs governing mortgage foreclosures; (c)
may cause to be executed and delivered to the purchaser or purct, .,.~ ~ ~t any such sale a good and sufficient deed
or deeds of conveyance of the Property so sold, and to apply tl~, ~,~ la,coeds arising from such sale first to the
payment of the costs and expenses of such foreclosure and ~;~i. ~,~,1 in payment of all moneys expended or
advanced by Mortgagee pursuant to the provisions of Section 2.7 ~ ~ ,.,,~', or other appropriate sections hereof, and
then to the payment of the balance due on account of the princil~:,l ~ Mc.l,redness, together with interest thereon and
the surplus if any, shall be paid by Mortgagee on demand to Nh ~t .:~,,~r; and (d) may exercise any other available
remedy in accordance with other applicable state law, and may c'.~ ~, ~.c such other rights and remedies granted by
law and equity, which rights and remedies shall be cumulative :t~,,~ ,~, ,t exclusive. There shall be included in any or
all such proceedings a reasonable attorney's fee. If Mortgagee I:~ii I'*'~mptlY to foreclose on the happening of any
default, then Mortgagee shall not thereby be prejudiced in its ~ =!~t i,, fi)reclosure at any time thereafter during
which such default continues, and shall not be prejudiced in it t,,~c~:lt).sure rights in case of further default.
Mortgagee may resort to and realize upon the security hereumk ~ ,~1 :m.~ other real or personal property security
now or hereafter held by Mortgagee for the obligations secured I~ ~.1~ in such order and manner as Mortgagee
may, in its sole discretion, determine. Resort to any or all such ~,, ~ i~x may be taken concurrently or successively
and in one or several consolidated or independent judicial actions; ,,~ I.lxx lttl nonjudicial proceedings, or both. If the
obligation secured by this Mortgage is also secured by pers,,t~.~i i,~,q~crty, fixtures or crops, Mortgagee may
enforce its security interest in the personal property, fixtures :t~,! , ~,l~S and its lien under this Mortgage in any
manner and in any order or sequence permitted by applicable I,~, ..\11 rclnedies are cumulative and none are
exclusive; no election by Mortgagee to pursue one remedy or ilc~,, ,~ c,~llatcral shall be deemed to be a release or
waiver of any other item of collateral or a release or modificati{,~ ,,~ ~1~. liability of Mortgagor or any guarantor to
pay and perform in full all obligations to Mortgagee. The proccdt:~ ,-~ .,_~,)vcrning the enforcement by Mortgagee of
its foreclosure and provisional remedies against Mortgagor sh:lll I,,, ?~,Vcl'ned by the laws of Wyoming. In the
event the property is sold under foreclosure and the procee&, ,~, insufficient to pay the total Indebtedness,
Mortgagor shall personally pay the unpaid balance, and Mortgagt.~ '.. ill bc entitled to a deficiency judgment.
3.6. No Waiver. The failure on the part of Mortgagee tt, l~,,~l~t13, cnlbrce any right hereunder shall not
operate as a waiver of such right and the waiver by Mortgagee ,,~ .~,. tk'l'atllt shall not constitute a waiver of any
Mm'fy to Shadow Dancer £ytate.¢
Real E. ctate Mar,gage Cans/sa'rig al'Ten {lB.~ ?age. c
other subsequent defaults. Subsequent acceptance of any payn,,.;, thc holder hereof shall not be deemed a
waiver of any default by Mortgagor, or of Mortgagee's rights ~, ~,~, c~ ~l, the result of any sale, agreement to
sell, conveyance, or alienation, regardless of holder's knox~l ~,~ such default, sale, agreement to sell,
conveyance, or alienation at the time of acceptance of such paym~
3.7. Successors. This Mortgage applies to, tnures to the bc~.
legatees, devisees, administrators, executors, successors and ass~
and owner of any note secured hereby; or, if the note has bec~
whenever the context so requires, the masculine gender includ,
number includes the plural. All obligations of Mortgagor hereund, ~
,,~. m~d binds all parties hereto, their heirs,
Thc term Mortgagee shall mean the holder
,~:c.d, the pledgee thereof. In this Mortgage,
~clninine and/or neuter, and the singular
illlI][ and several.
3.8. Transfers.
3.8.1. General. In the event the Property, or any part thereol, imcrcst therein, is sold, agreed to be sold,
conveyed, alienated or transferred, including any water transfc~ ,~.tmcd in section 3.8.2 below, contract for
deed or installment land contract, by Mortgagor, or by opermt l:txx or otherwise, except by inheritance,
without Mortgagee's prior written consent, all obligations securc,t .. ~,q~y, irrespective of the maturity dates, at the
option of the holder hereof, and without demand or notice, shall ~,~,.dimcly become due and payable. Failure to
exercise such option shall not constitute a waiver of the right to c..., ~.~. 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, ~ ~:,~mtcat, sale, exchange, gift, encumbrance,
pledge, hypothecation, alienation, grant of option to purchase, , .... ih~.~' disposition of, dit:ectly, indirectly or in
trust, voluntarily or involuntarily, by operation of law or other¥, t ~ ,,~ ~hc entry into a binding agreement to do
any of the foregoing with respect to all. or any part of: (a) the g~,. ~,lxx :~tcr on, under, pumped from or otherwise
available to the Property, (b) Mortgagor's right to remove ~,!, '.:met any such groundwater including any
permits, rights or licenses granted by any governmental authorit'. ,~r :~:cncy and any rights granted or created by
any easement, covenant, agreement or contract with any person .... ~:ity, (c) any rights to which the Property is
entitled with respect to surface water, whether such right is appt'~ I'~ ~,,~ivc~, riparian, prescriptive or otherwise and
whether or not pursuant to permit or other governmental authmi ~,,~, ~- the right to store any such water, (d)
any water, water right, water allocation, distribution right, delivc.~ ~i:[t~, water storage right, water allocation, or
other water-related entitlement appurtenant or otherwise applic::/, ~,} thc Property by virtue of the Property's
being situated within the boundaries of any district, agency, or t~l: ~ ,.,, }x crnmental entity or within the boundaries
of any private water company, mutual water company, or other ~ ..... ', ,x crmnental entity, or (e) any shares (or any
rights under such shares) of any private water company, mutual ,.~ ,,~ ~ ,'~m~pany, or other non-governmental entity
pursuant to which Mortgagor or the Property may receive any
3.9. Severability. In the event any one or more of the p~,. , ~,~s contained in this Mortgage or in any
promissory note(s) hereby secured shall for any reason be held ~., I~< invalid, illegal or unentbrceable in any
respect, such invalidity, illegality or unenforceability shall not at ~,~ ~ ,~m' other provision of this Mortgage or said
promissory note(s), but this Mortgage and said promissory note~., imtl bc construed as if such invalid, illegal or
unenforceable provision had never been contained herein or therci~
3.10. Receiver. Following the occurrence of an event of defaul~ :~. I~.~ Ihis Mortgage, Mortgagee may apply to a
court of competent jurisdiction for the appointment of a receiver ,,~ ~ t:.. I)~',~l)erty, upon giving notice to Mortgagor,
whether or not the value of the Property exceeds the unpaid bah~, ~I Ibc Indebtedness, whether or not waste or
deterioration of the Property has occurred, and whether or not ~}tl, ~. :t~?mncms based on equity would justify the
appointment. Mortgagor irrevocably, with knowledge and fi,~ ~ ~l[ml~lc consideration, consents to such an
appointment. Any such receiver shall have all the rights and pox,,, ~ , ~tsmmmrily given to receivers in Wyoming,
including the rights and powers granted to Mortgagee by this M,~:.., ,~u ~hc power to maintain, lease and operate
the Property on terms approved by the court, and the power to coil. ~ ~l~c rents and apply them to the Indebtedness
or otherwise as the court may direct. Once appointed, a receiver ~ ~' :~t Mortgagee's option remain in place until
the Indebtedness has been paid in full.
&fu/r.< to Shadow Dancer ££tate$
Rea/Er/ate i~fOt't~dge ~7on.,TY~]~g o~ Ten [/(l/ Page. c
3.11.
DELIBERATELY LEFT BLANK.
BORROWER WAIVES ALL RIGHTS OF HOMESTEAD i Xi"Mi'TION IN THE PROPERTY AND
RELINQUISHES ALL RIGHTS OF CURTESY AND DOWI.i~: IN Tile PROPERTY. TO THE FULLEST
EXTENT PERMITTED BY LAW, MORTGAGOR HEREBY \~ ', 1\'15 ANY RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING TO ENFORCE OR 1,~ ~ liN1) ANY RIGHTS: (A) UNDER THIS
MORTGAGE, THE INDEBTEDNESS OR ANY OTHER LOAN ~¢ I( 'IIMENT OR (B) ARISING FROM ANY
LENDING RELATIONSHIP EXISTING IN CONNECI I~;~ WITH THIS MORTGAGE, THE
INDEBTEDNESS OR ANY OTHER LOAN DOCUMENT, ANI~ ;, l; JI,'TGAGOR AGREES THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A Jt :1, ;1 :\ND NOT BEFORE A JURY.
Mortgagor:
/~ddl'¢/E. Li,,di ,,., ~,
Andrew
STATE OF 'RAW'ATI )
) SS.
COUNTY OF HONOLULU )
l~ /A/n~h/~/E. Lindberg.
<~ndreWWITNESS my hand and official seal.
The foregoing Real Estate Mortgage was acknowledged l.. i,,rc mc thisl0th day of Nov.
9/14/06
My Commission Expires:
RHT\D\6627
2004 by
Real Ertate Mortgage Cenx/_rtfng of Ten/Il.?/Page;
10