HomeMy WebLinkAbout904884Recorded at the request of.
and after recording return to:
Shadow Dancer Estates
C/o 699 Clovercrest Drive
Murray, Utah 84123
RECEIVED 11/30/2004 at 4:'13 PM
RECEIVING # 904884
BOOK: 573 PAGE: 64'1
JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER, WY
REAL ESTATE MORT(;:\(;E
THIS MORTGAGE (the "Ma.r(g',~,g~') is made effective this day ,f 200,1 by Triple A Builders LLC a
Wyoming Corporation and Sven Eric Johnson. n Wy0mingresident~ ,vl,,:,,:,e address is P.O. Box 5035, Edna, Wyoming
83118 (herein "A4'az~ae~.a/', even though two parties), in favor of :?}t,', ~,-,w Dancer Estates. Wyoming company whose
address is c/0 699 C10vercrest Drive, Murray, Utah 84123 (" .bhz,{~,:g~c>,~' /
1. GRANTING CLAUSES
1.1 General. Mortgagor IRREVOCABLY GRANTS, BAR(.L.\INS, SELLS, MORTGAGES, CONVEYS,
WARRANTS AND ASSIGNS unto Mortgagee, with the powc~ ,,' 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 29, Shadow Dancer Estates, a subdivision (the "Sul~dMsion") that is part of the SE¼ of
Section 10 and the NE~A of Section 15, T36N Rll9W I_i.ctfln 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 instrttmcnt 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, m.I any reversion, reminder, rents, issue, and
profits thereof;
AND TOGETHER WITH: all buildings, structures, equipment, I'ixmres (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 wate~ ~ights however ewdenced, including irrigation
and watering equipment and systems, ditches, laterals, conduits, gt~ltl rights-of-way used to convey such water or to
drain the above-described property, all of which rights are hcrchx made appurtenant to the property, and all
pumping plants, electrical generators, wind machines, and fenci~q~ 'mid storage tanks, now or hereafter used in
connection with the property, all of which are hereby declared to hc fi×lures; 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 appurtcn:mccs to the property; and all right, title, and
interest at any time of Mortgagor (or any of its bailees, agents ~,r instrumentalities), whether now existing or
hereafter arising or acquired, whether direct or indirect, whclhcr owned legally, of record, equitably or
beneficially, whether constituting real or personal property (or s,l)jcc~ m any other characterizations), whether
created or authorized under existing or future laws or regulati~ms, and however arising ~n, including without
limitation, the water, water rights and other assets and items dchc~ibcd below in sections 1.1.1 through 1.1.8
below, which shall collectively be called "Water Assets" (all of thc I',}rcgoing hereafter collectively referred to as
the "Property"). References to "water" and "water rights" :~rc used herein in the broadest and most
comprehensive sense of the term(s). The term "water" includes w:,cr r~ghts 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:
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1.1.1. All water (including any water inventory in stor;~Sc), water rights and entitlements, other rights
to water and other rights to receive water or water rights of evcqV kind or nature whatsoever including:' (a) the
groundwater on, under, or pumped from or to the Property, x~hc~hcr 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 ,~r agency or any rights granted or created by
any use, easements, covenant, agreement or contract with any pcrNon 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 odlcr govcnm~ental authorization, or the right to
store any such water, and (d) any water, water right, water alh~calion, distribution right, delivery right, water
storage right, or other water-related entitlement appurtenant or olhcm'ise 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, ,,r other non-governmental 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 pcrstm 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 lransport or deliver water, or otherwise to deal
with any Water Asset;
1.1.3. All licenses, permitsl approvals, contracts decrees, rights and interest to acquire or appropriate
any water or other Water Assets, water bank or other credits evidcm'ing any right to water or other Water Assets,
to store, carry, transport or deliver water or other Water Assets, t~ scl l, lease, exchange, or otherwise transfer any
water or other Water Asset, or to change the point for diversion tff water, the location of any water or Water
Asset, the place of use of any water or Water Asset, or the purpose ,ff thc use of any water or Water Asset;
1.1.4. All rights, claims, causes of action, judgmcms, awards, and other judicial, arbiter or
administrative relief in any way relating to any water or Water Asset;
1.1.5. Ali 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 t',mks, 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 otherwi~c deliver water or other Water Assets by any
means wherever located;
1.1.7. All guaranties, warranties, marketing, managemcm or service contracts, indemnity agreements,
and water right agreements, other water related contracts and ~:~cr reallocation rights, all insurance policies
regarding or relating to any Water Asset; and
1.1.8. All rents, issues, profits, proceeds and other acc~l]nts, instruments, chattel paper, contract
rights, general intangibles, deposit accounts, and other rights to p% mcnt 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. rYh~rlgagor hereby absolutely and unconditionally
assigns to Mortgagee all proceeds, rents, issues and profits from any use (apart from watering plants on the
Property or other ordinary use on the Property), nonuse, sale, lease, transfer or disposition of any kind of any
water or any other Water Asset subject to a lien in favor of Mtu-lgagce. That assignment shall be perfected
automatically without appointment of a receiver or Mortgagee beccmfing a mortgagee in possession and Mortgagee
shall have the right, before or after the occurrence of any defaull o~ event of default, to notify any account debtor
to pay all amounts owing with respect to those proceeds, rems, ~ssucs and profits directly to Mortgagee. Except as
otherwise agreed in writing by Mortgagee, Mortgagee may apply an5 such collection (and any rents, issues, profits
and proceeds) to any indebtedness owed to Mortgagee in the priori~5 set forth in the Note.
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1.3. Assignment of Rents. Mortgagor ABSOLUTELY AND t'NCONDITIONALLY ASSIGNS, transfers,
conveys and sets over to Mortgagee all the rents, royalties, issuc~, pm fits, revenue, income and other benefits of
the Property arising from the use or enjoyment of all or any porti,m Ihcreof or from any lease, mineral lease, or
agreement pertaining thereto (collectively the "Rents"); SUBJECT, I It)\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 Properly x~ ill be considered to the fullest extent of the
law to be real property for purposes of this Mortgage To the cx~cnt theft any of the Property (including without
limitation any Water Assets or fixtures) is deemed to constitute, ~s adjmlicated to be, or declared to be personal
property, this Mortgage shall also be deemed to be a security agrct'mcnt. 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 I'ixnu'e 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 l't IR POSE OF SECURING THE FOLLOWING
(collectively the "Indebtedness'): (a) payment of the indebtedness ~' ~bligations evidenced by a promissory note
(the "Note") that is in the original principal amount of $80,001}.1tl), that is dated on or about the date of this
Mortgage, that was made by Mortgagor, as borrower, in favor of .'xh~rtgagee, as lender and holder, and that has a
stated maturity date of one year after the date of this Mortgage tlhc maturity date may be extended by the joint,
written consent of Mortgagor and Mortgagee; the maturity date m: y bc accelerated as provided in the Note and
this Mortgage), at the times, in the manner and with interest (thc initial interest rate under the Note is 7.5% per
annum, with default interest at the rate of 12% per annum) as therein scl lbrth; (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 t~ assigns, and/or to parties whose obligation
Mortgagor is guaranteeing, evidenced by a promissory note or olhcrwis¢ and any obligations evidenced by any
guaranties executed by Mortgagor in favor of Mortgagee; PROVI D I.~1) l I OWEVER, THAT, such additional loans
advances guaranty obligations shall be secured by this Mortgage truly il' the promissory note, guaranty, or other
document evidencing such loans or advances shall recite that it is ~ bc secured by this Mortgage; (c) the payment
of any substitute notes, renewals, reamortizations, and extensions ~t' 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 dc~cument or guaranty executed by Mortgagor
in favor of Mortgagee, with respect to any loan, advance, or gum'anty secured by this Mortgage; and (e) the
payment of all sums expended or advanced by Mortgagee undc~ m pursuant to the terms of this Mortgage,
including attorney's fees incurred by Mortgagee in the enforccmcm of this Mortgage, together with interest
thereon as herein provided. The continuing validity and priority ~d' this Mortgage as security for future loans,
advances, or guaranties shall not be impaired by the fact thai ',~ certain times hereafter there may exist no
outstanding indebtedness from Mortgagor to Mortgagee or no conmmmcnt to make loans or advances.
2. Mortgagor Covenants. TO PROTECT THE SECURITY OF THIS MORTGAGE, MORTGAGOR
AGREES:
2.1. DELIBERATELY LEFT BLANK.
2.2. Care of Property. To keep the Property in good condititm working order and repair; if the Property is
used for agricultural purposes, then to care for the Property in acccml:mc~: with standards of good husbandry and to
keep all trees, vines and crops on said land properly cultivated, irri~ atcd, fertilized, sprayed, and fumigated; not to
remove, destroy or suffer the removal or destruction of any t~sc'al)lc building, fence, canal, well or other
improvements or fixtures thereon without the prior written conscm of Mortgagee; if the Property is used for
agricultural purposes, then not to remove, replace or alter any h,,rtictdtural or viticultural tree, vine or shrub
planted thereon without the prior written consent of Mortgagee, cxccpl in the ordinary course of business; to
complete or restore promptly and in good and workmanlike manner any building which may be constructed,
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damaged or destroyed thereon; to comply with all laws, covenanls ',md restrictions affecting the Property; not to
commit or permit waste thereof'; not to commit, suffer or permit .,%' act upon the Property in violation of law; to
do all other acts which from the character or use of the Property may be reasonably necessary, the specific
enumerations herein not excluding the general; to observe and pcrfi~rm all 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 stalely in favor of Mortgagee; (b) liability
insurance in amounts as Mortgagee may reasonably require, with Nl~rtgagee listed as an additional insured; and
(c) and all other types of insurance of the type and in amounts as Mt~rtgagee 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 d:tm:~gcd. In the event that Mortgagor shall fail to
provide satisfactory hazard insurance, Mortgagee may procure, {m Mortgagor's behalf, insurance in favor of
Mortgagee alone. If insurance cannot be secured by Mortgagor t~ 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; :XI~rlgagee 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 duc dale 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 duc. all encumbrances, charges, and liens, on
the Property or any part thereof, which at any time appear to be pri{~r ~r 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 n c.nnection 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 ~l' lbreclosure. 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 an5 payment or to do any act as provided for in
this Mortgage, then Mortgagee, but without obligation to do so and wilhout 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, .Mt~rtgagee being authorized to enter upon the
Property for such purposes; commence, appear in and litigate any ',~cliou or proceeding purporting to affect the
security hereof or the rights or powers of Mortgagee, including any b:tnkruptcy 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 almrney's, accountant's, and appraisal fees,
environmental fees, and costs of securing evidence of title, and all mnotmts $o expended shall bear interest at the
highest rate as is provided for in the note or notes secured by thi.s Nlm'tgage, shall be obligations of Mortgagor
secured by this Mortgage and on demand by Mortgagee shall be immccli:~tely repaid by Mortgagor to Mortgagee.
Nothing contained herein shall prohibit Mortgagee from entering thc Property, at a reasonable time and upon
reasonable notice to Mortgagor, without incurring or assuming an) t~bligations or liabilities whatsoever, for the
sole purpose of inspecting the Property.
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2.8. Payments. To pay immediately and without demand all sans expended by Mortgagee pursuant to the
provisions hereof, with interest from date of expenditure at the hi,host rate as is provided for in the note or notes
secured by this Mortgage. In the event that such sums are not mm~cdiately 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.
2.9. Environmental Representations, Warranties and Covemtms.
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 Mortga?r in this section 2.9 would apply to past,
present and future acts upon the Property. Given that Mortgagor ha~ imrchascd the Property from Mortgagee, the
application of the following provisions of this section 2.9 to aclivitic, s on the Property prior to the date of this
Mortgage would be inappropriate, except as such activities have bccn 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 Nlt~rtgage and to acts or omissions to act of
Mortgagor, its agents, contractors and representatives prior to thc date of this Mortgage. Subject to the foregoing
limitation, Mortgagor hereby further represents, warrants and covcllltlll.q 3s follows:
2.9.1.1. No pollutants, contaminants (including t~il or other petroleum products), toxic or
hazardous substances, or solid or hazardous wastes, as such terms ;~rc defined under any federal, state or local
Environmental Law, regulation or ordinance (hereinafter "Com:m~immts") 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 Prt,pcrty 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 ,,r m undertake removal or remedial action to
clean up such contaminants;
2.9.1.2. No Contaminants are located on, in or trader any property located adjacent to the
Property in such quantities or concentrations as would constitute a vi, d:tl i{m of any Environmental Law or as would
require the owner of the adjacent property to report such condition tt~ any governmental authority or to undertake
removal or remedial action to clean up such Contaminants;
2.9.1.3. Neither the Property, nor any portion d~crc{d', nor any adjacent property or portion
thereof, has been or is proposed to be listed under the Comprehensive I!nviro~unental RespOnse, Compensation and
Liability Act (42 U.S.C. Section 9601, et seq.), or any analogous slate 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 Mt~rtgagor's possession relative thereto;
2.9.1.4. No hazardous wastes, as defined under thc Federal Resource Conservation and
Recovery Act (42 U.S.C. Section 6901, et seq.), or any analogous slate law ("Hazardous Wastes"), have been,
are being or will be stored or treated in surface impoundments ~,r {~lhcr structures or facilities located on the
Property that are partially or entirely below the ground surface;
2.9.1.5. No litigation, investigation, administrative ~rder, consent order, agreements, or other
action, proceeding or settlement (hereinafter "Action") has previously hccn brought, is now pending, or to the best
knowledge of Mortgagor threatened against or anticipated by IVh~rtgagor, with respect to Mortgagor's use or
management of Hazardous Materials or Hazardous Wastes or thc environmental condition of the Property,
including any underlying groundwater. Upon learning thereof, Morlgagor shall immediately notify Mortgagee of
any such Action or threatened Action and provide Mortgagee with C~l~ics 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 CTanks") (whether currently in use or
abandoned) are or were located on or under the Property and no Tanks arc or were serving the Property described
herein. With respect to any Tanks disclosed in writing to Mortgagee, Mortgagor shall comply with all federal,
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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, withe,ut limitation, Title 40 of the Code of Federal
Regulations Part 112.
2.9.2. Nothing herein shall be deemed to pr. ohibit N,h~rlgagm' from: (a) using, handling or storing
hazardous materials or substances, as defined under any federal, slate or local law, regulation or ordinance
("Hazardous Materials") or (b) storing or treating non-hazardous x~ astcs, so long as such activities are carried out
(y) 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 requircmcms.
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 cox chants 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 g{wcrmnental authorities of any environmental
condition on or affecting the Property that constitutes or may conslimte a breach of Mortgagor's obligations
hereunder.
2.9.4. Mortgagor and its successors and assigns shall intlclunify, 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 ,~1' acti,m, injuries, administrative proceedings
and orders, consent agreements and orders, penalties, costs and cxpcuses (including any fees and expenses
incurred in enforcing this indemnity, any out-of-pocket litigation c,~s~s 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 businchs, in coxmection 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 ctmnected 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 relcasc, ~)r 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 reprcscntatiol~s, 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 withom 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 fcdc'ral, state or local law, statute, ordinance, or
regulation, now in effect or hereinafter enacted, pertaining to hcallh, industrial hygiene, or the environmental
conditions on, under or about the Property, including but not limilcd Io 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 rcastmablc time for purposes of determining, as
Mortgagee deems necessary or desirable: (a) the existence, locati,m dud 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 tcnaut of Mortgagor is in compliance with
Afut?: to ffhadow Dancer
Real Es~ate klartgage C. ann'x#ng ofTen [ltl} Pagex
applicable Environmental Law, If Mortgagor or its tenants fail to c.mply fully with the terms of this section 2.9.7,
then Mortgagee may obtain affirmative injunctive relief to compel sucl c{.npliance.
2.10. Grazing Rights. If any portion of the Property described in lhis Mortgage is used by Mortgagor as the
basis for obtaining grazing permits or other grazing rights issued b3 any governmental agency, including without
limitations the Forest Service, U.S. Department of Agriculture or the Bureau 0f 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 st;mding and have not been modified, .reduced or
limited in any other respect, except as fully disclosed in writing to lXh,'l g agce:
2.10.2. Mortgagor will perform all obligations imposed ,,~ a requirement of exercise of said grazing
permits or other rights and will comply with all laws, rules and rem~l',, it,ns applicable thereto;
2.10.3. Mortgagor will take such timely action as may bc re( tilted 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 ,,1' any said permits for any reason, whether the
result of an act or omission of Mortgagor or for reasons beyond M~,'tgagor'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 t,' {~thcr payments accruing under said permits
or any renewals thereof prior to delinquency. In the event Mortg~ g~' fails to pay any such payment, the amount
unpaid shall become a part of the Indebtedness and shall be immedialcly du~ and payable.
3, Covenants Affecting Mortgagor and Mortgagee. IT IS MUTUALLY AGREED THAT:
3.1. Condemnation. Any award of damages in connection witl~ :m3 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 rcq,ircd to effect the assignments herein made as
Mortgagee may require.
3.2. Actions Affecting Property. At any time, without affecting ~hc liability of any person for the payment of
the Indebtedness, and without otherwise affecting the security herc~ff, Mortgagee may, but shall not be obligated
to: (a) consent to or join in the making of any map or plat of the Pr~,pcrty; (b) grant any easement or create any
restriction thereof; (c) subordinate this Mortgage; (d) extend or mt,dify 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 thc payment, observance, performance and
discharge of any condition, obligation, covenant, or agreement o1' ~h.'~gagor contained herein, Mortgagor may,
for collection and distribution purposes only, collect and receive Ibc Rents as they come due and payable; the
Rents are to be applied by Mortgagor to the payment of the principal :md imcrest and all other sums due or payable
on any promissory note or guaranty secured by this Mortgage and t~ thc payment of all other sums payable under
this Mortgage and, thereafter, so long as the aforesaid has occurred, Iht balance shall be distributed to the account
of Mortgagor. Upon any such default, Mortgagee may at any time xx ilh,mt notice, either in person, by agent, or by
a receiver to be appointed by a court, and without regard to the adcq,acy 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 ~.- ira)laotian, 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, rem~vc, 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
J~uir.¢ ia .qhadaw D, mcer Exlala:
Real Estate Afartgage Can.<~?t~hg al'Ten [1~} Paga~
7
O64_8
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 Morlg~gce on request, and on refusal, the delivery of
such possession, rents, issues, and profits may be enforced Iix M~}rtgagee by any appropriate civil suit or
proceeding, including action or actions in ejectment, or forcible cmry, m' unlawful 'detainer or other proper legal
action; and Mortgagee shall be entitled to a receiver for the Propcrb' and all Rents thereof, after any such default,
including the time covered by foreclosure proceedings and the pt:ri~M o1' redemption, if there is any, and shall be
entitled thereto as a matter of right without regard to the solvency, ,,r insolvency of Mortgagor or the then owner
of the Property, and without regard to the value of the Properb ,~r the sufficiency thereof to 'discharge the
Indebtedness, including foreclosure costs, fees and expenses; anti such receiver may be appointed by any court of
competent jurisdiction on ex-parte application and without notice tn,,tice being hereby expressly waived, and the
appointment of any such receiver on any such application withom m~}ce being hereby consented to by Mortgagor
on Mortgager'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 thc Property, the collection of such rents, issues,
and profits, or the proceeds of fire and other insurance policies, <~ c~m~pcnsation or awards for any taking of or
damage to the Property, and the application or release thereof as al'm-csaid, 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 t~l' any ludebtedness or in performance of any
agreement hereunder, all sums secured hereby shall immediate x become due and payable at the option of
Mortgagee and in accordance with applicable state law. In the cvcm (~f default, Mortgagee: (a) may employ
counsel to enforce payment of the obligations secured hereby; (b) m: y cnlbrce the provisions of this Mortgage
either by suit at law or in equity, as Mortgagee may elect, or by l'orcclt~sm'e of this Mortgage by advertisement and
sale of premises, at public auction for cash, according to Wyomin~ gtamtes 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 ncl proceeds arising from such sale first to the
payment of the costs and expenses of such foreclosure and sale and m payment of all moneys expended or
advanced by Mortgagee pursuant to the provisions of Section 2.7 bcrc~f, 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 Morlgagm'; 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 nt~t exclusive. There shall be included in any or
all such proceedings a reasonable attorney's fee. If Mortgagee fails immaptly to foreclose on the happening of any
default, then Mortgagee shall not thereby be prejudiced in its right tt~ tBreclosure at any time thereafter during
which such default continues, and shall not be prejudiced in its fi~reclosure rights in case of further default.
Mortgagee may resort to and realize upon the security hereunder and :my other rea] or personal property security
now or hereafter held by Mortgagee for the obligations secured hereby iu 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 Ira)petty, fixtures or crops, Mortgagee may
enforce its security interest in the personal property, fixtures and cr{,ps and its lien under this Mortgage in any
manner and in any order or sequence permitted by applicable lax~ All remedies are cumulative and none are
exclusive; no election by Mortgagee to pursue one remedy or item {~I' c~fllateral shall be deemed to be a release or
waiver of any other item of collateral or a release or modification {)1' Ibc 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 hc governed by the laws of Wyoming. In the
event the property is sold under foreclosure and the proceeds arc 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 pr{m~ptly enforce any right hereunder shall not
operate as a waiver of such right and the waiver by Mortgagee of any dcfimlt shall not constitute a waiver of any
Mu[rs to ffhadet, v Dancer Ectate.<
RealEstate Mortgage Con.¢LO]~g at' Ten (I41 Page;
other subsequent defaults. Subsequent acceptance of any payment b3 the holder hereof shall not be deemed a
waiver of any default by Mortgagor, or of Mortgagee's rights hcrctmder as the result of any sale, agreement to
sell, conveyance, or alienation, regardless of holder's knowledge (,f 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 ~he benefil ,t, 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 pk.dgcd, the pledgee thereof. In this Mortgage,
whenever the context so requires, the masculine gender includes ~hc feminine and/or ne.uter, and the singular
number includes the plural. All obligations of Mortgagor hereunder arc .jtfint and several.
3.8. Transfers.
3.8. I. General. In the event the Property, or any part thereof or any imm'est 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 ,~l' 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 immc,liately become due and payable. Failure to
exercise such option shall not constitute a waiver of the right to exert tsc tiffs option in the event of subsequent sale,
agreement to sell, conveyance or alienation.
3.8.2. Water Transfers. A water transfer is any transfer, assigmncnt, sale, exchange, gift, encumbrance,
pledge, hypothecation, alienation, grant of option to purchase, or t,lhcr disposition of, directly, indirectly or in
trust, voluntarily or involuntarily, by operation of law or otherwise, ,. thc entry into a binding agreement to do
any of the foregoing with respect to all or any part of: (a) the groumlw',ttcr on, under, pumped from or otherwise
available to the Property, (b) Mortgagor's right to remove and c×lract any such groundwater including any
permits, rights or licenses granted by any governmental authority or ',~gcncy and any rights granted or created by
any easement, covenant, agreement or contract with any person or cm it3', (c) any rights to which the Property is
entitled with respect to surface water, whether such right is appropr~afivc, r~parian, prescriptive or otherwise and
whether or not pursuant to permit or other govermnental authorizati.., m' 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 t{~ the Property by virtue of the Property's
being situated within the boundaries of any district, agency, or other g~}vcrnmental entity or within the boundaries
of any private water company, mutual water company, or other non-g~vcrnmental entity, or (e) any shares (or any
rights under such shares) of any private water company, mutual wmcr ct.npany, 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 provisi~ms contained in this Mortgage or in any
promissory note(s) hereby secured shall for any reason be held mbc invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect :my other provision of this Mortgage or said
promissory note(s), but this Mortgage and said promissory note(s) sh,ll 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 untlc~ this Mortgage, Mortgagee may apply to a
court of competent jurisdiction for the appointment of a receiver of thc Prt~perty, upon giving notice to Mortgagor.
whether or not the value of the Property exceeds the unpaid balance ~4' thc Indebtedness, whether or not waste or
deterioration of the Property has occurred, and whether or not other ',. gumcnts based on equity would justify the
appointment. Mortgagor irrevocably, with knowledge and for vah~able consideration, consents to such an
appointment, Any such receiver shall have all the rights and powers cus..narily given to receivers in Wyoming,
including the rights and powers granted to Mortgagee by this Mortg:~gc, the power to maintain, lease and operate
the Property on terms approved by the court, and the power to collec~ Ibc 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,
J/u/rs to ffhado~Dancer Estates
Re alE. ctate ~fortgage 6~ons/sh'ng at' Ten [II,1/Pages
9
0 50
3.11. DELIBERATELY LEFT BLANK.
BORROWER WAIVES ALL RIGHTS OF HOMESTEAD EXEMI'TION IN TIlE PROPERTY AND
RELINQUISItlgS ALL RIGHTS OF CURTESY AND DOWER IN THE 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 DEl:liND ANY. RIGHTS: (A) UNDER THIS
MORTGAGE, THE INDEBTEDNESS OR ANY OTHER LOAN I)()CUMENT 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 JUI)(;l:. AND NOT BEFORE A JURY.
Morlg'agor:
J TI~IPLE A BI 'iI.IIERS, LL~/' ~"
Sven Eric .h}lm~,mh General' Manager
l~P~l~'"Jt)ilNSOS, INIS/~ImJ~/L -
./
STATE OF ~ )
)ss,
COUNTY OF-- '~'- '-~ ~ ,J--~ ~Od~ eOJ~
)
The foregoing Real Estate Mortgage was acknowledged bcfi)rc me this
Sven Eric Johnson as individual and General Manager of Triple A Builders.
My Commission Expires: ~l ~,~ ~eal.
[Tday of YX~Ok}. 2004 by
c ;' '~ ~'i '/'I~~
Notary Pt:bi'ii.~~ '
RHT\D\6627
)fu~?; to 5'hadew Dancer E. ctate$
RealExtate Mortgage Cen;Lc~'ng of Ten fl(II Page;
10