HomeMy WebLinkAbout905164Recorded at the request of,
and after recording return to:
Shadow Dancer Estates
C/o 699 Clovercrest Drive
Murray, Utah 84123
REAL ESTATE MORTGA¢-; E
THIS MORTGAGE (the "A&~z~,~,,E~') ii made effective this ~ day of 'th c c t~rlbe./9..2004 by' David S. Jen~ni and
~chard L. Jenlflni, ~yaming residenB whose addre~ is P.O. B0>: L~(~()'9, Alpine, Wyo~g 83021 (herein
"A~zU,~,z~t'), in favor 0f Shadow Dancer Estate~. X~y'oming Company wh, ~e artdre~ i5 c/o 699 Clovercre~t Drive.
Murray, Utah 84123 (" ~z~,if3,~/').
1. GRANTING CLAUSES
1.1 General. Mortgagor IRREVOCABLY GRANTS, BARGAIN,q SF. LLS, 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") siltmlud in the County of Lincoln, State of
Wyoming:
Lot 18, Shadow Dancer Estates, a subdivision (the "Subdivi.q~m") that is part of the SE¼ of
Section 10 and the NE~ of Section 15, T36N RII9W Linc~4~. {'~mnty, Wyoming, according to
the official plat thereof that was recorded on or about 11 August 2(~(~4 in the Office of the Clerk of
Lincoln County, Wyoming as plat number 173-C and instrumcm n~. 9(i)1862;
TOGETHER WITH any and all improvements, easements (including casements set forth in the Subdivision plat
and access easements across the Trail Ridge Subdivision that is adjacent to Ihe Property), tenements, hereditaments
and appurtenances thereunto belonging or in anywise appertaining, and :my 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 m' 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 righls ol'-way used to convey such water or to
drain the above-described property, all of which rights are hereby re:Mc al)purtenant to the property, and all
pumping plants,, electrical generators, wind machines, and fencing and stmage tanks, now or hereafter used in
com~ection 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, permils and rights used with the property; all
tenements, hereditaments, easements, rights-of-way and appurtenancc~ t~ thc 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 turned legally, of record, equitably or
beneficially, whether constituting real or personal property (or subject t~, any other characterizations), whether
created or authorized under existing or future laws or regulations, and however arising m, including without
limitation, the water, water rights and other assets and items described l~elt~w 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 f~r or GU account of any Water Assets or
any conservation or other nonuse of water, including whatever rights arc achieved by depositing one's shares of
any Water Assets in any water bank or with any water authority, or any {dhcr water reallocation rights:
RECEIVED 12/10/2004 at 3:54 PM
RECEIVING # 905164
BOOK: 574 PAGE: 470
LINCOLN COUN4~.i~!'!~iJ~RK, KEMMERER VVY
047i
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 kimt or nature whatsoever including: (a) the
groundwater on, under, or pumped from or to the Property, xxhcthcr 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 pcrstm 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 alloc~tion, 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, a?ncy, or other governmental entity or within
the boundaries of any private water company, mutual water company, or other non-governmental entity;
1.1.2. All stock, interest or rights (including any wa~cr allt~cations, voting or decision rights) in any
entity, together with any and all rights from any entity or other pcrs~m 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 lrm~Sl)ort 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 the point for diversion ~,1' water, the location of any water or Water
Asset, the place of use of any water or Water Asset, or the purpose o1' ~hc 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. 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 lanks, and other equipment used or usable in
connection with such storage and any water bank deposit credits, dcp{)sit 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, managemcm ~r 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 acc~mnts, 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. Morlgagor 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 Mr~rtgagce. 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 fi~rth in the Note.
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RealEs/ate Mortgag,* (7.on~>ahg o£ Ten {I~] ?age~
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1.3. Assignment of Rents. Mortgagor ABSOLUTELY AND UNCONDITIONALLY ASSIGNS, transfers,
conveys and sets over to Mortgagee all the rents, royalties, issues, lmffits, 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, I I()WEVER, to the right, power and authority
gwen 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 ',tt[judicated to be, or declared to be personal
property, 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 Unitbrn~ Commercial Code and other applicable state
law, which rights are cumulative.
1.5. Fixture Filing. This Mortgage shall also be deemed to be a l~xture 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 P/JRI'OSE OF SECURING THE FOLLOWING
(collectively the "Indebtedness"): (a) payment of the indebtedness or tfl*ligations evidenced by a promissory note
(the "Note") that is in the original principal amount of $113,000.(10 that is dated on or about the date of this
Mortgage, that was made by Mortgagor, as borrower, in favor of Morlgagee, as lender and holder, and that has a
stated maturity date of one year after the date of this Mortgage (Ibc maturity date may be extended by the joint,
written consent of Mortgagor and Mortgagee; the maturity date naa', be accelerated as provided in the Note and
this Mortgage), at the times, in the manner and with interest (the inilial interest rate under the Note is 7.5% per
annum, with default interest at the rate of 12% per annum) as therein scl forth; (b) the payment of such additional
loans or advances, including advances under a revolving line of crctlil, with interest thereon, as hereafter may be
made to one or more of Mortgagor, or Mortgager'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; PROVIDEI) I IOWEVER, THAT, such additional loans
advances guaranty obligations shall be secured by this Mortgage onl5 it' the promissory note, guaranty, or other
document evidencing such loans or advances shall recite that it is to l~c secured by this Mortgage; (c) the payment
of any substitute notes, renewals, reamortizations, and extensions o~' :,11 indebtedness secured by this Mortgage; (d)
the performance of every obligation and agreement of one or m~rc of Mortgagor whether contained or
~ncorporated by reference in this Mortgage, or contained in any loan &~ctm~ent or guaranty executed by Mortgagor
in favor of Mortgagee, with respect to any loan, advance, or guaranly secured by this Mortgage; and (e) the
p/~yment of all sums expended or advanced by Mortgagee under t~ pursuant to the terms of this Mortgage,
including attorney's fees incurred by Mortgagee in the enforcemcm of this Mortgage, together with interest
thereon as herein provided The continuing validity and priority o~ dais Mortgage as security for future loans,
advances, or guaranties shall not be impaired by the fact that al certain times hereafter there may exist no
outstanding indebtedness from Mortgagor to Mortgagee or no commim~cnt to make loans or advances.
2. Mortgagor Covenants. TO PROTECT THE SECURITY OF 'FillS MORTGAGE, MORTGAGOR
AGREES:
2.1. DELIBERATELY LEFT BLANK.
2.2. Care of Property. To keep the Property in good condition, w~rking 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 usc~tblc building, fence, canal, well or other
improvements or fixtures thereon without the prior written conscm ,)f Mortgagee; if the Property is used for
agricultural purposes, then not to remove, replace or alter any horticttltural 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 may be constructed,
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Real Estate ~fertgage Cons/sffnp of Ten/1~/Pa~e.¢ 3
0 05/. 54
damaged or destroyed thereon; to comply with all laws, covenants and restrictions affecting the Property; not to
commit or permit waste thereof'; not to commit, suffer or permit an) 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 peril)mi 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 s{dcly in favor of Mortgagee; (b) liability
insurance in amounts as Mortgagee may reasonably require, with Mt~rtgagee listed as an additional insured; and
(c) and all other types of insurance of the type and in amounts as M~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 dalw, mcd Itl the event that Mortgagor shall fail to
provide satisfactory hazard insurance, Mortgagee may procure, tm Nlortgagor's behalf, insurance in favor of
Mortgagee alone. If insurance cannot be secured by Mortgagor to i~rovide 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; Mm'lgagee may appear in and litigate any such
action or proceedings, including any bankruptcy, partition or condc~ m~ation proceeding, affecting the Property, or
Mortgagee's interest therein, in which event Mortgagor agrees m 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 duc, all encumbrances, charges, and liens, on
the Property or any part thereof, which at any time appear to be ln'ior ~ 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 il 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 c{mnection with said suit, and further agrees
to pay the reasonable costs of searching the records and abstracting or insunng the title, and such sums, costs and
expenses shall be secured hereby and shall be included in any decree of l'oreclosure 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 wilhoul 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 'act~tm or proceeding purporting to affect the
security hereof or the rights or powers of Mortgagee, including any b;mkruptcy proceeding affecting the Property;
pay, purchase, contest, or compromise any encumbrance, charge or ticn which in the judgment of either appears to
be prior or superior hereto; and in exercising any such powers, incm ;my 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 M{~rtgage, 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 Ibc 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.
Real E. ftate Mortgage (7Jn.¢£:6ng of Ten (IL~ Pagey
2.8. Payments. To pay immediately and without demand all sun]s expended by Mortgagee pursuant to the
provisions hereof, with interest from date of expenditure at the higl~cst 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.
2.9. Environmental Representations, Warranties and Covenants.
2.9.1. For ease in drafting, this Mortgage has been prq}arcd 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 pm'chased the Property from Mortgagee, the
application of the following provisions of this section 2.9 to acnvitics 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 ulxlcr this section 2.9 shall be deemed to apply
only to acts or omissions to act from and after the date of this M~rtgage and to acts or omissions to act of
Mortgagor, its agents, contractors and representatives prior to the date (if this Mortgage. Subject to the foregoing
limitation, Mortgagor hereby further represents, warrants and covenant, 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 arc defined under any federal, state or local
Environmental Law, regulation or ordinance (hereinafter "Cont(tmimmts") 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 Prq)crty 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 under any property located adjacent to the
Property in such quantities or concentrations as would constitute a viol ;~I im~ of auy Environmental Law or as would
require the owner of the adjacent property to report such condinon u, any governmefital authority or to undertake
removal or remedial action to clean up such Contaminants;
2.9.1.3. Neither the Property, nor any portion thcrc,~f, nor any adjacent property or portion
thereof, has been or is proposed to be listed under the Comprehensive l~nviroumental Response, Compensation and
Liability Act (42 U.S.C. Section 9601, et seq.), or any analogous sm~c law. Mortgagor shall immediately notify
Mortgagee if Mortgagor acquires any information concerning the lism~g or proposed listing of the Property or any
adjacent property and shall provide Mortgagee with any documents in M,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 smtc law ("Hazardous Wastes"), have been,
are being or will be stored or treated in surface impoundments or t)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 order, consent order, agreements, or other
action, proceeding or settlement (hereinafter "Action") has previously bccn brought, is now pending, or to the best
knowledge of Mortgagor threatened against or anticipated by Morlgagor, with respect to Mortgagor's use or
management of Hazardous Materials or Hazardous Wastes or thc cnvirolnnental 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 coptcs of all documentation relative thereto; and
2.9.1.6. Except as disclosed in writing to Mortg~gcc, no underground tanks, wells (except
domestic water wells), septic tanks, ponds, pits or any other storage ranks ("Tanks") (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 Mortgage,:, 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, with(mi 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 defined 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) 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 appropri:~tc 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 indemnify, 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, dalnages, 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 ~uffcrcd by, or asserted against Mortgagee,
including but not limited to Claims arising out of loss of life, injw'y 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 ihe Property, Mortgagor's predecessors in interest, third parties who have been invited,
permitted or trespassed on the Property, or parties in a contractual rcl:ttionship 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. ~,- 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 fo'doral 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 rcastmablt: 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
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RealE~tate Mort~,~e Con. rLrh'ng ofTen fli.?l Page~ 6
applicable Environmental Law. If Mortgagor or its tenants fail to c(,nply fully with the terms of this section 2.9.7,
then Mortgagee may obtain affirmative 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 b3 any governmental agency, including without
limitations the Forest Service, U.S. Department of Agriculture t.' 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 stranding and have not been modified, reduced or
limited in any other respect, except as fully disclosed in writing to M.rtgagee:
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 reguhdions applicable thereto;
2.10.3. Mortgagor will take such timely action as may bc required to cause the renewal or reissuance of
said grazing permits or other rights from time to time as they exp.-c during the term thereof. Mortgagor agrees
and acknowledges that the failure to renew or cause the reissuancc ~1' 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 ~ } ~ l t,her payments accruing under said permits
or any renewals thereof prior to delinquency. In the event Mortg,.~,t,' fails to pay any such payment, the amount
unpaid shall become a part of the Indebtedness and shall be immedi,,~Mv clue and payable.
3. Covenants Affecting Mortgagor and Mortgagee. IT IS MUI'UALLY AGREED THAT:
3.1. Condemnation. Any award of damages in connection wi~h any taking or condemnation or injury to the
Property by reason of public use, or for damages resulting from pr~wttc trespass or injury to the Property, is
absolutely and unconditionally assigned and shall be paid to Mr,'lg:~gcc, under the terms and conditions of this
Mortgage pertaining to Rents, Upon receipt of such money Mort?gcc shall apply the same on the Indebtedness.
Mortgagor agrees to execute such further documents as may be ret nit,cd to effect the assignments herein made as
Mortgagee may require.
3.2. Actions Affecting Property. At any time, without affecting Ibc liability of any person for the payment of
the Indebtedness, and without otherwise affecting the security herc~)f, Mortgagee may, but shall not be obligated
to: (a) consent to or join in the making of any map or plat of the l'r.pcrty; (b) grant any easement or create any
restriction thereof; (c) subordinate this Mortgage; (d) extend or m t~dil'y 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 m thc payment, observance, performance and
discharge of any condition, obligation, covenant, or agreement ot' Mt,'tgagor 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 and interest and all other sums due or payable
on any promissory note or guaranty secured by this Mortgage and to thc payment of all other sums payable under
this Mortgage and, thereafter, so long as the aforesaid has occurred, thc balance shall be distributed to the account
of Mortgagor. Upon any such default, Mortgagee may at any time withtml notice, either in person, by agent, or by
a receiver to be appointed by a court, and without regard to thc ',~dcquacy 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 Indehlcdncss, and in such order as Mortgagee may
determine; also perform such acts of repair, cultivation, irrigation ,. protection, as may be necessary or proper to
conserve the value of the Property; also lease the same or any part thereof tbr such rental, term, and upon such
conditions as its judgment may dictate; also prepare for harvest, rcm,~ve, and sell any crops that may be growing
upon the Property, and apply the proceeds thereof upon the Indcblctlncss Without limiting the generality of the
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foregoing, in case of any default whereby the right of foreclosure {)tours 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;~gcc tin 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 cut fy, or unlawful'detainer or other proper legal
action; and Mortgagee shall be entitled to a receiver for the Properly and all Rents thereof, after any such default,
including the time covered by foreclosure proceedings and the perit~tl ~i' 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 (m~ticc tieing hereby expressly waived, and the
appointment of any such receiver on any such application without not icc 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 thc 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 afl,re'said, 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 k~rcclt~sure of this Mortgage by advertisement and
sale of premises, at public auction for cash, according to Wyoming .qtatutes 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 thc net proceeds arising from 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 lndcl3tcdness, together with interest thereon and
the surplus if any, shall be paid by Mortgagee on demand to Mortg',tgor; aud (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 im)ml)tly to foreclose on the happening of any
default, then Mortgagee shall not thereby be prejudiced in its righl 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 tn' lawful nonjudicial proceedings, or both. If the
obligation secured by this Mortgage is also secured by personal imq~erty, fixtures or crops, Mortgagee may
enforce its security interest in the personal property, fixtures and crtq)s 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 t~l' collateral shall be deemed to be a release or
waiver of any other item of collateral or a release or modification ol' Iht 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 bc 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 bc entitled to a deficiency judgment.
3.6. No Waiver. The failure on the part of Mortgagee to prtmq)tly enforce any right hereunder shall not
operate as a waiver of such right and the wmver by Mortgagee of any default shall not constitute a waiver of any
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other subsequent defaults. Subsequent acceptance of any payment by thc holder hereof shall not be deemed a
waiver of any default by Mortgagor, or of Mortgagee's rights hercm~t er 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 ~l', 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 thc t'eminine and/or neuter, and the singular
number includes the plural. All obligations of Mortgagor hereunder are joint and several.
3.8. Transfers.
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 dcl'incd in section 3.8.2 below, contract for
deed or installment land contract, by Mortgagor, or by operation ~f 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 ~lhcr disposition of, directly, indirectly or in
trust, voluntarily or involuntarily, by operation of law or otherwise, ~r 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 cxlract 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 cmity, (c) auy rights to which the Property is
entitled with respect to surface water, whether such right is appropria~ive, 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 tt) thc Property by virtue of the Property's
being situated within the boundaries of any district, agency, or other gt~vcrnmental entity or within the boundaries
of any private water company, mutual water company, or other non-gm~crnmental 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 contained in this Mortgage or in any
promissory note(s) hereby secured shall for any reason be held t~ bc 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 tlais Mortgage, Mortgagee may apply to a
court of competent jurisdiction for the appointment of a receiver of thc Property, upon giving notice to Mortgagor,
whether or not the value of the Property exceeds the unpaid balance t~l' thc 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 valmtbl¢ 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, thc power to maintain, lease and operate
the Property on terms approved by the court, and the power to collect thc rents and apply them to the Indebtedness
or otherwise as the court may direct. Once appointed, a receiver may a~ Mortgagee's option remain in place until
the Indebtedness has been paid in full.
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3.11. DELIBERATELY LEFT BLANK.
BORROWER WAIVES ALL RIGHTS OF HOMESTEAD IqXI,'MI'TION 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 DF.I:F. ND 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 NIORTGAGOR AGREES THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A JURY.
/~//~ortga g~Dr:
?
DAVID S.flENKINS, INDIVIDUAL
RICHARD'q;-..~ENI,~ICI~S, INDIVIDUAL
STATE OF ~ )
) SS,
COUNTY OF ~L.I. Ix3 0..t5 L ~ )
The foregoing Real Estate Mortgage was acknowledged bcli,-c me this
David S. Jenkins and Richard L. Jenkins.
day of 5~v,.C¢~'"-'>2004 by
WITNESS my hand and official seal.
My Commission
RHT\D\6627
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