HomeMy WebLinkAbout9056820653
WHEN RECORDED MAIL TO
Bar K, Inc.
201 Lafayette Circle, 2nd floor
Lafayette CA 94549
Loan No. C0390
RECEIVED 1/7/2005 at 10:41 AM
RECEIVING # 905682
BOOK: 576 PAGE: 653
JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER, WY
[Space Above This Line is for Recording Information]
2
WYOMING COMMERCIAL REAL ESTATE MORTGAGE AND SECURITY AGREEMENT
THIS COMMERCIAL REAL ESTATE MORTGAGE AND SECURITY AGREEMENT ("Mortgage")
is dated as of December 22, 2004, and is made and entered into by CANYON CLUB, INC., a Wyoming
corporation, and 144 ACRE PARCEL, LLC, a Wyoming Limited liability company (collectively
"Mortgagor"), whose address is 1 Johnny Counts Road, Jackson Hole, WY 83001, in favor of R.E.
LOANS LLC, a California limited liability company (the "Lender"), whose address is 201 Lafayette Circle,
2"° Floor, Lafayette, CA 94549.
THIS MORTGAGE COVERS ALL DEBTS, INCLUD NG FUTURE ADVANCES
The Mortgagor hereby MORTGAGES AND WARRANTS to the Lender, its successors and
assigns, forever, with power of advertisement and sale, the land and property situated in Teton and
Lincoln Counties Wyoming, herein referred to as the "Premises," which are more particularly described
as follows:
SEE EXHIBIT "A" ATTACHED HERETO AND INCORPORATED
HEREIN BY THIS REFERENCE
Together with all related rights, privileges improvements, rents and profits, easements,
hereditaments and appurtenances, including but not limited to:
a. The real property more particularly described as the Premises above
b. Al easements and rights-of-way, riparian rights, air rights for further vertical construction
and rights to the same belonging or in any way appertaining to the Premises;
c. Al minerals and mineral rights, including but not limited to oil, gas gravel and other
minerals, if any, lying in, or under the surface of the Premises to the extent owned by Mortgagors;
d. All water rights, conditional water rights and applications for permits that are appurtenant
to or have been used or intended for use in connection with the Premises, including but not limited to (i)
ditch well, pipeline, spring and reservoir rights whether or not adjudicated evidenced by stock or shares,
or evidenced by any well or other permit, (ii) all rights with respect to noncontributory groundwater
underlying the property, (iii) any permit to constlL~Ct any water well, water from which is intended to be
MORTGAGE #C0390 (1-4-05)
Page 1 of 25
0654
used in connection with the property, and (iv) all of Mortgagor's right, title and interest under any decreed
or pending plan of augmentation or water exchange plan;
e. All strips and gores of land lying between the Premises and streets, roads highways or
alleys, open or proposed, owned by Mortgagor;
f. All estates rights, titles, interests, privileges, tenements, hereditaments, and
appurtenances of any nature whatsoever, in any way belon§ing, relating, or pertaining to the Premises
owned by Mortgagor; -.v..-_.
g. The reversion or reversions, remainder and remainders, rents, issues, and profits in any
way belonging, relating, or pertaining to the Premises;
h. All improvements presently located or subsequently constructed on the Premises;
i. All of Mortgagor's right, title and interest in and to all machinery, apparatus furniture
equipment, fixtures, and other property of every kind and nature now or hereafter located upon the
Premises and usable in connection with the present or future operation of the Premises;
j. All building materials, goods and personal property on the Premises, not affixed or
incorporated into the Premises;
k. Al buildings, improvements, machinery, apparatus, equipment, fittings, fixtures and
articles of personal property of every kind and nature whatsoever, other than consumable goods, now or
hereafter located in or upon said real estate or any part thereof and used or usable n connection with any
present or future operation of the Premises and all parts thereof (hereinafter referred to as the
"Equipment") and now owned or hereafter acquired or leased by Mortgagor, and all additions and
accessions thereto now or hereafter attached to or used in connection therewith or with the Premises,
including, but without limiting the generality of the foregoing (1) all furniture, fixtures, equipment, parts,
apparatus, machinery, irrigation systems, devices, furnishings, supplies, computer programs, software
and data, golf carts, tractors, mowers, and all other items of personal property now owned or hereafter
acquired by the Mortgagor, or in which the Mortgagor, may now or hereafter have any interest
whatsoever, and all fixtures or other property, howsoever characterized, which are attached to or located
at, in or about or used or usable in connection with golf course to be developed on part of the Premises,
and, the proceeds thereof, and all substitutions, replacements, modifications, improvements, additions,
parts, accessories and accessions to the foregoing; (2) all heating, lighting, laundry, incinerating and
power equipment, engines, pipes, pumps, tanks, motors, conduits, switchboards, plumbing apparatus,
electrical apparatus (including, but not limited to all electrical transformers, switches, switch boxes,
equiph~ent boxes, cabinets, all whether used in the operation of the Mortgaged Property or any business
operated within or upon the Premises), lifting, cleaning, fire-prevention, fire-extinguishing, refrigerating,
ventilating, and communications apparatus, air-cooling and air-conditioning apparatus, elevators,
escalators, shades, awnings, screens, storm doors and windows, stoves, attached cabinets, partitions,
carpeting, plants and shrubbery, ground maintenance equipment, ducts and compressors and all of the
right, title and interest of Mortgagor in and to any equipment which may be subject to any title retention or
security agreement superior in lien to the lien of this Mortgage;
I. All general intangibles, including without limit the name "Canyon Club," and all software,
acquired or used in connection any business operated from the Premises, and all right, title and interest, if
any, of Mortgagor to plans and specifications, engineering drawings, architectural renderings, licenses,.
governmental permits and approvals, soil test reports, proposals, construction agreements and contracts;
architectural and engineering agreements and contracts and all other material now or thereafter existing
in any way relating to the Mortgaged Property;
m. All the rents, issues, profits, revenues and accounts arising from the Premises or
Mortgaged Property (as hereinafter defined), or!elating to any business conducted by Mortgagor on it,
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:. O655
under present or future leases, licenses or otherwise, including, without limit, all rights of Mortgagor under
any purchase agreements executed with respect to any portion(s) of the Mortgaged Property and the
proceeds thereof and proceeds from the sale of golf course memberships and similar arrangements;
n. All awards or payments, and interest on them, made with respect to the Mortgaged
Property (as defined below) or the Premises as a result of (1) any eminent domain proceeding, (2) any
street grade alteration, (3) any loss of or damage to any building or other improvement, (4) any other
injury to or decrease in the value of the Mortgaged Property (as defined below) or the Premises, (5) any
refund due on account of the payment of real estate taxes, assessments or other charges levied against
the Mortgaged Property (as defined below) or the Premises, (6) any refund of utility or other deposits/or-
(7) constituting proceeds of insurance with respect to the Mortgaged Property (as defined below); and
proceeds of all of the foregoing;
o. All "developer rights" with respect to any Project (as defined in section 22) now or
hereafter located on the Premises, including all rights reserved or granted to the developer under any
condominium master deed, bylaws and/or other documents and instruments relating to any condominium
project, specifically including without limitation the rights of the Mortgagor as developer of Canyon Club,
according to the Plat thereof recorded in the records of Teton County, Wyoming, with respect to 'the
Mortgaged Property;
p. All other real and personal properly, whether or not attached to the Premises, which is
necessary or incidental to the use of the Premises (and any buildings located thereon) for golf course,
retail, apartment, model home, motel or other lodging, business or commercial purposes and all other
property, whether or not similar to that hereinbefore mentioned, which is or shall be attached to the
Premises by nails, screws, bolts, pipe connections, masonry, or in any other manner placed or installed
therein or thereon, and all other articles listed in any Exhibit which may be attached hereto, which exhibit
is hereby expressly declared to be incorporated herein, all of which are and shall be deemed to be
accessions to the freehold and a part of the realty as between the parties hereto and all persons claiming
by, through or under them and the same shall be deemed to be a portion of the security for the
indebtedness herein mentioned and to be covered by the lien of this Mortgage.
The foregoing is hereinafter referred to individually and collectively as the "Mortgaged Property".
Unless otherwise indicated, a reference to the Premises means all and/or any part of the Premises and a
reference to the Mortgaged Property means all and/or any part of the Mortgaged Property.
It is understood and agreed that all Equipment is part and parcel of said real estate and
appropriated to the use of said real estate and, whether affixed or annexed or not, shall for the purpose of
this Mortgage be deemed conclusively to be real estate and mortgaged hereby. This Mortgage shall, as
t,o anytangible or intangible personal property covered by it, also be deemed to grant a security interest in
the personal property pursuant to the Uniform Commercial Code, and a collateral assignment of and
grant of a security interest in all developer or development rights with respect to any existing and future
Project located within the Premises, all in accordance with the provisions of Paragraph 14 of this
Mortgage. The Lender shall have the right to proceed against such assets either under real estate law or
under the Uniform Commercial Code or under both.
THIS MORTGAGE SECURES the payment when due of all sums, notes, accounts, indebtedness
and liabilities, direct or indirect, absolute or contingent, owing by the Mortgagor to the Lender in any .
manner and at any time, whether due or hereafter to become due, now owing or hereafter incurred to, or
acquired by, the Lender and any and all liabilities and obligations of the Mortgagor .now or hereafter in
existence under any present or future guaranties, indemnification agreements, or endorsements of the
debts of other(s) to (or acquired by) the Lender and any judgments that may hereafter be rendered on
said sums, notes, accounts, indebtedness and liabilities, or any part thereof, with interest according to the
rates and terms therein specified, or as provided by law, until full payment, and any and all .renewals or
extensions of any of the foregoing (hereinafter coll.ectively called the "Indebtedness"), and further, to
secUre the prompt and faithful performance and ¢l~servance by the Mortgagor of all the terms,
undertakings, covenants and Conditions by the M~rtgagor to be kept, observed or performed under or
MORTGAGE #C0390 (1-4-05)
Page 3 of 25
according to this Mortgage and each other Joan agreement, collateral assignment, security agreement,
instrument, obligation, contract, agreement and all guaranty, indemnification and endorsement
agreements with respect to debts of other(s) entered into or which may in the future be entered into by
the Mortgagor and the Lender or which have been or may in the future be delivered to the Lender or
executed by Mortgagor at its request or for its benefit (hereinafter referred to as "Other Agreements").
The Indebtedness an.d the Other Agreements, as hereinabove defined, include, without limit, any and all
obligations or liabilities of whatever amount of Mortgagor to Lender, whether absolute or contingent,
direct or indirect, voluntary or involuntary, liquidated or unliquidated, joint or several, known or unknown;
any and all indebtedness, obligations or liabilities for which Mortgagor would otherwise be liable to Lender
were it not for the invalidity, irregularity or unenforceability of them by reason of any bankruptcy, ':-'-~-.
insolvency or other law or order of any kind, or for any other reason; any and all amendments,
modifications, renewals and/or extensions of any of the above; all costs incurred by Lender in
establishing, determining, continuing, or defending the validity or priority of its liens and/or security
interests, or to protect the value of the Mortgaged Property, or for any appraisal, environmental audit, title
examination or title insurance policy relating to the Mortgaged Property or the Premises, or in pursuing its
rights and remedies under this Mortgage or under any other agreement between Lender and Mortgagor;
all costs incurred by Lender in connection with any suit or claim involving or against Lender in any way
related to the Mortgaged Property or the Premises, the Indebtedness or this Mortgage; and all costs of
collecting Indebtedness; all of the above costs including, without limit, actual attorneys' fees incurred by
Lender. Mortgagor agrees to pay Lender, upon demand, all costs incurred by Lender which are
Indebtedness, and until paid all costs shall bear interest from the time incurred at the highest per annum
rate applicable to any of the Indebtedness, but not in excess of the maximum rate permitted by law. Any
reference in this Mortgage to attorney fees shall be deemed a reference to all actual fees, charges, costs
and expenses of both in-house and outside counsel and paralegals, whether or not a suit or action is
instituted, and to court costs if a suit or action is instituted, and whether attorney fees or court costs are
incurred at the trial court level, on appeal, in a bankruptcy, administrative or probate proceeding or
otherwise. Notwithstanding the foregoing, this Mortgage shall not secure that part of the Indebtedness, if
any, which constitutes a consumer loan, other than a consumer loan made at the Same time as this
Mortgage and specifically referenced as being secured by this Mortgage (and all extensions, renewals,
modifications or replacements thereof) and the terms Indebtedness and Other Agreements shall also
specifically include, but in no way shall be limited to, the following described liabilities and obligations,
together with interest thereon and all extensions and renewals thereof:
(1) That certain promissory note of even date herewith of CANYON CLUB INC. payable to
Lender in the principal amount of Sixty-Four Million Seven Hundred Thousand Dollars ($64,700,000.00),
entitled and hereinafter referred to as the "Mortgage Note";
(2) All of the obligations of Mortgagor under that certain loan agreement of even date herewith
between Lender and Canyon Club Inc. ("CCI"), entitled and hereinafter referred to as the "Loan
Agreement", pursuant to which CCI has issued the Mortgage Note referred to above;
(3) All other debts and obligations of Mortgagor under each of the loan documents referred to in
the Loan Agreeme~)t and the Mortgage Note; and
(4) Each other document or instrument further evidencing or securing the indebtedness
evidenced by the Mortgage Note, whether executed by the undersigned or by others as of the date of the
Note or under any other agreements or instruments now or hereafter evidencing or further securing the
indebtedness evidenced by the Mortgage Note.
Provided, however, that anything herein to the contrary notwithstanding the Indebtedness shall in
no event include any indebtedness created or arising hereinafter from Mortgagor to Lender arising out of
a transaction whereby the Mortgagor has a right to rescind the same under state or federal law or
regulation, unless the Lender has delivered to the Mortgagor a notice of right to rescind or.other required
notice or disclosure, in which case such indebtedness shall be deemed part of the Indebtedness
hereur~der. ¢!
MORTGAGE #C0390 (1-4-05) Page 4 of 25
Specific reference is made to Paragraph 22 of this Mortgage for a description of various rights,
including developer rights, related to the Projects created or which may in the future be created within the
Premises. All such rights shall stand as further security for the repayment of the Indebtedness and the
performance of the Other Agreements, as those terms are defined above.
AND THE MORTGAGOR FURTHER COVENANTS WITH THE LENDER as follows, all of which
covenants shall run with the land:
1. Covenants of Title. Mortgagor, for itself and for its successors and assigns,
covenants and agrees that Mortgagor is lawfully seized of the Mortgaged Property and the other coll~fe-(al
in fee simple, and has good right, full power and lawful authority to mortgage, grant, and convey the
Mortgaged Property and the other collateral as provided herein. Mortgagor further warrants that the
Mortgaged Property is free and clear of all liens and encumbrances whatsoever, except as set forth on
Exhibit B attached hereto and incorporated herein by this reference, and the Mortgaged Property is in the
quiet and peaceable possession of said Mortgagor, his successors and assigns, and against all and every
person or persons lawfully claiming or to claim the whole or any part thereof, Mortgagor shall and will
warrant and forever defend.
2. Mortgagor's Promise to pay. The Modgagor will pay or cause to be paid
promptly the Indebtedness according to the tenor and effect thereof.
3. Mortgagor's Promise to Perform. The Mortgagor will promptly and faithfully
perform and observe all the terms; undertakings, covenants and conditions by the Mortgagor to be kept,
observed or performed under or according to this Mortgage and each of the Other Agreements.
4. Care of Mortgaged Property. The Mortgagor will at all times preserve and
maintain the Mortgaged Property and every part thereof in good repair, working order and condition,
reasonable wear and tear and damage from fire or other casualty (provided the Mortgagor repairs such
damage in a reasonably diligent manner) excepted, and will from time to time make all necessary repairs
and renewals so that the efficiency of the Mortgaged Property and every part thereof shall at all times be
maintained and the mortgage security shall not in any way be impaired. The Lender shall have access to
and right to inspect the Mortgaged Property at all reasonable times and if the Mortgaged Properly or any
part thereof shall require inspection, repair, winterizing or care of any kind which the Mortgagor shall fail
to provide, the Lender may, after notice to the Mortgagor, enter, inspect, repair, winterize and care for the
Mortgaged Property and pay such amount therefor as in its sole judgment it may deem necessary and the
cost thereof shall be added to the Indebtedness and shall be due and payable immediately, with interest
at the rate specified in Paragraph 8 hereof and shall be secured by this Mortgage.
-' 5. Escrow for Taxes, Insurance Premiums and Other Obligations. The
I'~lortgagor will pay to the Lender, if Lender so requests at any time, with the monthly payments of
principal and interest, or otherwise if the Lender so directs, a pro rata portion of the taxes, assessments,
mortgage guarantee insurance premiums so long as this Mortgage is required by the Lender to be
insured by a mortgage guarantee insurance policy, hazard insurance premiums next to become due, and
any other rents, payments, liens and charges against the Mortgaged Property which are to be paid
periodically, as estimated by the Lender, so that the Lender will have sufficient funds on hand to pay such
taxes, assessments, insurance premiums, rents, payments, liens and charges thidy days before the due
date thereof, and the Mortgagor will pay to the Lender immediately any deficit thereon. If there is any
surplus at the end of any year, the Lender may apply such surplus to the next deposit(s) required toward
payment of such items. Moneys so held shall not bear interest, and, upon default, may be applied by
Lender on the Indebtedness without notice.
6. Other Payments by Mortgagor. The Mortgagor will pay and discharge all liens,
encumbrances, taxes, assessments, water charges and other governmental charges at any time levied or
placed upon or assessed against the Mortgagor q{ the Mortgaged Property before any interest or penalty
for nonpayment attaches thereto, or earlier when~lue if required by the Lender. The Mortgagor will not do
or allow to be done anything whatsoever that may'impair the lien of this Mortgage or the value of the
MORTGAGE #C0390 (1-4-05)
Page 5 of 25
Mortgaged Property as collateral, provided, however, that the Mortgagor shall not be required to pay any
such tax, assessment or government charge so long as the Mortgagor in good faith contests the validity
thereof and provides such assurances of payment of such tax, assessment, water charge or other
governmental charge in a manner satisfactory to the Lender. The Mortgagor agrees promptly (and at any
rate before interest or penalty normally would attach with respect to such tax, assessment, water charge
or other governmental charge) to notify the Lender in writing of Mortgagor's intent to contest the same
and the basis for such contest.
7. Insurance Coverages. Mortgagor shall keep the buildings and all other
improvements now or later existing on the Premises constantly insured for the benefit of Lender again'st
fire and other hazards and risks, including without limit vandalism and malicious mischief, as Lender may
require and shall further provide flood insurance (if the Premises are situated in a special flood hazard
area as determined by the Director of the Federal Emergency Management Agency or other governing
agency), public liability and product liability insurance and any other insurance as Lender may require
from time to time, all in amounts and in forms and with companies as are satisfactory to Lender.
Mortgagor shall deliver to Lender the policies evidencing the required insurance with premiums fully paid
for one year in advance and with standard Lender clauses satisfactory to Lender. Renewals of the
required insurance (together with evidence of premium prepayment for one year in advance) shall be
delivered to Lender at least thirty (30) days before the expiration of any existing policies. All policies and
renewals shall provide that they may not be canceled or amended without giving Lender thirty (30) days
prior written notice of cancellation or amendment. All policies and renewals shall be held by, and are
pledged to, Lender, along with all insurance premium rebates, as additional security for the Indebtedness.
Should Mortgagor fail to insure or fail to pay the premiums on any required insurance or fail to deliver the
policies or renewals of them as provided above, Lender may (but is not obligated to) have the insurance
issued or renewed (and pay the premiums on it for the account of Mortgagor) in amounts and with
companies and at premiums as Lender deems appropriate. If Lender elects to have insurance issued or
renewed to insure Lender's interest, Lender shall have no obligation to also insure Mortgagor's interest or
to notify Mortgagor of Lender's actions. Any sums paid by Lender for insurance as provided above shall
be added to the Indebtedness. In the event of loss or damage, the proceeds of all required insurance
shall be paid to Lender alone. No loss or damage shall itself reduce the Indebtedness. Lender and any
of Lender's employees is each irrevocably appointed attorheyoin-fact for Mortgagor (which appointment is
coupled with an interest) and is authorized to adjust and compromise each loss without the consent of
Mortgagor, to collect, receive and receipt for the insurance proceeds in the name of Lender and
Mortgagor and to endorse Mortgagor's name upon any check in payment of the loss. The proceeds shall
be applied first toward reimbursement of all costs and expenses of Lender in collecting the proceeds
(including, without limit, actual attorneys' fees), and then toward payment of the Indebtedness or any
portion of it, whether or not then due or payable and in whatever order of maturity as Lender may elect;,
or Lender, at its option, may apply any or all the insurance proceeds to the repair or rebuilding of the
Mortgaged Property or the Premises. Application of proceeds by Lender toward later maturing
i'nstallments of the IndebtedneSs shall not excuse Mortgagor from making the regularly scheduled
installment payments nor shall such application extend the due date or reduce the amount of any of these
payments. Application of proceeds by Lender toward payment of the Indebtedness shall constitute an
acceleration and pr.epayment and shall subject Mortgagor to any applicable prepayment premium or
formula. In the event of a foreclosure of this Mortgage, or the giving of a deed in lieu of foreclosure, the
purchaser or grantee of the Mortgaged Property shall succeed to all of the rights of Mortgagor under said
insurance policies. Mortgagor shall promptly repair, replace or rebuild each part of the Mortgaged
Property and Premises which may be damaged or destroyed by fire or other casualty or which may be
affected by any eminent domain proceedings, notwithstanding application by Lender of the insurance
proceeds or eminent domain award to payment of the Indebtedness.
8. Lender's Right to Make Payments and Add to Indebtedness. After any
default, the Lender, without any demand or notice may (i) pay any taxes, assessments, charges, liens,
and insurance premiums Mortgagor has agreed to pay under this Mortgage or under any of the Other
Agreements, (ii) effect any insurance provided for herein or in any of the Other Agreements, (iii) inspect,
repair, winterize, protect and maintain the Mortgal~led Property and pay such amounts therefore as
Lender deems appropriate, and (iv) enter the Mortgaged Property and survey and appraise it and obtain
MORTGAGE #C0390 (1.4-05)
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'. :,-065-9
current certifications to abstract(s) of title, title insurance policies and tax histories of the Mortgaged
Property or obtain new abstracts, title insurance and tax histories if none were furnished and pay such
amounts therefor as the Lender deems appropriate; and all sums paid for any one or more of said
purposes, or otherwise permitted tO be paid by the Lender under this Mortgage or any of the Other
Agreements, shall be immediately due and payable without notice and shall bear interest from the date of
payment at the highest rate set forth in the Mortgage Note. All such sums so paid, plus interest,
automatically shall be added to the Indebtedness hereunder. All abstracts, title insurance policies,
surveys, tax histories and other documents pertaining to the Indebtedness shall remain in the Lender's
possession until the indebtedness is paid in full, but if there is any foreclosure of this Mortgage, the same
shall become the Lender's sole property.
9. Assignments to Lender. The Mortgagor hereby assigns to the Lender, in their
entirety, all judgments, decrees and awards for injury or damage to the Mortgaged Property, and all
awards or damages pursuant to proceedings for condemnation or taking thereof, and the Mortgagor
authorizes the Lender, at its sole election, either to apply the same, or the proceeds thereof, toward the
Indebtedness in such manner as the Lender may elect or to apply the same toward restoration or repair
of the Mortgaged Property. The Mortgagor hereby authorizes the Lender, in the name of the Mortgagor,
to execute and deliver, valid acquittances for, and to appeal from any such award, judgment or decree, but
the Lender shall not be obligated to do so.
10. Waste Provision. The Mortgagor will not commit or allow to be committed
waste on the Mortgaged Property and will comply with all present and future valid police, sanitary,
building and fire rules, regulations and restrictions and municipal ordinances and all state and federal
statutes, present and future, concerning the Mortgaged Property or the use and occupancy thereof or in
any way applying to the same and will not use the Mortgaged Property for any unlawful purpose. The
failure, refusal or neglect of the Mortgagor to pay any taxes or assessments levied against any part of the
Mortgaged Property or any insurance premiums upon policies of insurance covering any part of the
Mortgaged Property shall constitute waste in accordance with the statute in such case made and
provided and shall entitle the Lender to all the remedies provided under such statute.
Upon the happening of any waste of all or part of the Mortgaged Property, including but not
limited to nonpayment of taxes, assessments or insurance premiums, on proper application made
therefor by the Lender to a court of competent jurisdiction, the Lender shall forthwith be entitled to the
appointment of a receiver, ex parte and without notice, of the Mortgaged Property and of the earnings,
income, issue and profits thereof, with such powers as the court making such appointment shall confer.
The Mortgagor hereby irrevocably consents to such appointment and waives notice of any application
therefor. Payment by the Lender for and on behalf of the Mortgagor of any such delinquent tax or
insurance premium, properly payable by Mortgagor under the terms of this Mortgage, shall not cure the
defaL~it herein described nor shall it in any manner impair the Lender's right to the appointment of a
receiver on account thereof.
11. No Removal, Alterations or Improvements. Except for rePlaCement,
maintenance and relocation in the ordinary course of business, the Mortgagor will not, without the prior
written consent of the Lender, remove nor attempt to remove or allow to be removed from the present
location thereof any improvement forming part of the Mortgaged Property.
12. Further Assurances; Perfection; Other Rights of Lender. At any time and
from time to time, upon request by the Lender, the Mortgagor will make, execute and deliver or cause to
be made, executed and delivered to the Lender and where appropriate will cause to be recorded and/or
filed and from time to time thereafter to be re-recorded and/or re:filed at such time and in such offices and
places as shall be deemed desirable by the Lender, any and all such other and further mortgages,
assignments of rent, security agreements, financing statements, current financial and operating
statements, instruments of fudher assurance, certificates and other documents as may, in the opinion of
the Lender or its counsel, be necessary or reasor~ab y desirable in order to effectuate, complete and
perfect and to continue and preserve the ob gat~,~ns of the Mortgagor under this Mortgage and the lien of
this Mortgage as a first lien upon all the Mortgaged Property, whether now owned or hereinafter acquired
MORTGAGE #C0390 (1-4-05)
Page 7 °f25
ososcsz ' ,- 0 6 8 0
by the Mortgagor and wheresoever located. The MOrtgagor hereby irrevocably appoints the Lender, its
agent and attorney-in-fact (which appointment is coupled with an interest) to (i) execute, record, file, re-
record and re-file any and all of the foregoing, (ii) to settle any insurance claims upon loss, at the Lender's
option (but without any obligation on the Lender's part to do so), and (iii) to make claims in condemnation
or other proceedings involving the Mortgaged Property, at the Lender's option (but without any obligation
on the Lender's part to do so), all for and in the name of the Mortgagor. All expenses of the Lender in
connection therewith will be added to the Indebtedness, shall bear interest from the date of payment at
the rate provided for in Paragraph 8 hereof and shall be secured hereby.
13.
Due on Sale or Encumbrance.
(a) Prohibited Transfers. The Mortgagor, without the prior written consent of
the Lender, shall not effect, suffer or permit any Prohibited Transfer (as defined herein).
Any conveyance, sale, assignment, transfer, lien, pledge, mortgage, security interest or
other encumbrance or alienation (or any agreement to do any of the foregoing) of any of
the following properties or interests shall constitute a "Prohibited Transfer" unless
involving property being released from the lien of this Mortgage under Paragraph 30,
below:
i. The Premises or any part thereof or interest therein, excepting
only sales or other dispositions of collateral ("Obsolete Collateral") no longer
useful in connection with the operation of the Premises, and except for the sale
of retail goods in the ordinary course of business, provided that prior to the sale
or other disposition thereof, such Obsolete Collateral has been replaced by
collateral of at least equal value and utility which is subject to the lien hereof with
the same priority as with respect to the Obsolete Collateral;
ii. All or any part of the managing member or manager interest, as
the case may be, in the Mortgagor or any limited liability company which holds
any membership interest in the Mortgagor; or
iii. If there shall be any change in control (by way of transfers of
stock, padnership or member interests or otherwise) in any partner, member,
manager or shareholder, as applicable, which directly or indirectly controls the
day to day operations and management of the Mortgagor and/or owns a
controlling interest in the Mortgagor;
in each case whether any such conveyance, sale, assignment, transfer, lien, pledge,
mortgage, security interest, encumbrance or alienation is effected directly, indirectly
(including the nominee agreement), voluntarily or involuntarily, by operation of law or
otherwise; provided, however, that the foregoing provisions of this paragraph shall not
apply (i) to liens securing the Indebtedness, (ii) to the lien of current taxes and
assessments not in default, (iii) to any transfers of the Mortgaged Property, or part
thereof, or interest therein, or any beneficial interests, or shares of stock or partnership or
joint venture interests, as the case may be, by or on behalf of an owner thereof who is
deceased or declared judicially incompetent, to such owner's heirs, legatees, devisees,
executors, administrators, estate or personal representatives, or (iv) to leases permitted
by the terms of the Loan Agreement, if any.
(b) No Other Encumbrances. In determining whether or not to make the
Loan, the Lender evaluated the background and experience of the Mortgagor and its
partners/members/officers in owning and operating property such as the Premises, found
it acceptable and relied and continues to rely upon same as the means of maintaining the
value of the Premises which is t.~e Lender's security for the Note. The Mortgagor and its
partners/members/officers are ~ell experienced in borrowing money and owning and
operating property such as the P~remises, were ably represented by a licensed ~ttorney at
MORTGAGE #C0390 (1-4-05)
Page 8 of 25
law in the negotiation and documentation of the Loan and bargained at arm's length and
without duress of any kind for all of the terms and conditions of the Loan, including this
provision. The Mortgagor recognizes that the Lender is entitled to keep its loan portfolio
at current interest rates by either making new loans at such rates or collecting
assumption fees and/or increasin§ the interest rate on a loan, the security for which is
purchased by a party other than the original Mort§agor. The Mort§a§or further
reco§nizes that any secondary junior financing placed upon the Premises (i) may divert
funds which would otherwise be used to pay the Note; (ii) could result in acceleration and
foreclosure by any such junior encumbrancer which would force the Lender to take
measures and incur expenses to protect its security; (iii) would detract from the valu~ 0f
the Premises should the Lender come into possession thereof with the intention of selling
same; and (iv) would impair the Lender's right to accept a deed in lieu of foreclosure, as a
foreclosure by the Lender would be necessary to clear the title to the Premises. In
accordance with the foregoing and for the purposes of (a) protecting the Lender's
security, both of repayment and of value of the Premises; (b) giving the Lender the full
benefit of its bargain and contract with the Mortgagor; (c) allowing the Lender to raise the
interest rate and collect assumption fees; and (d) keeping the Premises free of
subordinate financing liens, the Mortgagor agrees that if this Paragraph 13 is deemed a
restraint on alienation, that it is a reasonable one. Anything herein to the contrary
notwithstanding, the Lender consents to a subordinated mortgage on the premises in
favor of CCI in the amount of $45 million.
(c) Other Effects of Transfer or Encumbrance. In addition to its other rights
hereunder, upon any sale or other transfer of the Mortgaged Property, the Lender may
deal with .such successor in interest with reference to this Mortgage and the Other
Agreements, the Indebtedness and any note(s) or other instrument(s) evidencing the
Indebtedness in the same manner as with the Mortgagor, with no requirement of notice to
or consent of the Mortgagor whatsoever, without in any manner releasing, voiding or
discharging the Mortgagor's liability hereunder or for the Indebtedness.
(d) Permitted Transfers. Notwithstanding the foregoing, the terms of this
Mortgage and this Paragraph 13 shall not apply to, constitute a default hereunder, and
shall not prohibit, limit or impair the Mortgagor from transferring the Premises in
'accordance with the partial release 'provisions of the Loan Agreement, or the case of
membership interests in the Snake River Sporting Club in accordance with the provisions
of the Loan Agreement, or the transfer of ownership interests in the Mortgagor or in
entities holding ownership interests in the Mortgagor (i) among existing owners of such
interests or their affiliates; (ii) for estate or tax planning; or (iii) for internal restructurings
and reorganizations.
(e) Land Use Related Matters. From time to time while this Mortgage is
outstanding, provided such activities are consistent with the development of the
Mortgaged Property as a luXury golf and sporting club and community, the Mortgagor
may in compliance with applicable law:
i. Cause the Mortgaged Property or portions thereof to be master
planned, rezoned, subdivided, platted, or otherwise divided into legal parcels or
condominium or other planned community units, common elements and limited
common elements, and improved (both with offsite and onsite improvements).
ii. Cause all or any part of the Mortgaged Property to become
subject to covenants, conditions, restrictions, instruments establishing or
providing for the governance of condominiums or other planned community,
architectural guidelines, end other similar instruments governing the development
and/Or use of the Mort~&ged Property.
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MORTGAGE #C0390 (1-4-05)
Page 9 of 25
iii. Dedicate to public or private use roads and easements
(including, but not limited to, drainage, flood, water retention and common area
easements), and convey any portions so dedicated by instrument of dedication or
otherwise to the appropriate entity (including, but not limited to, the conveyance
of common areas to any :owners' association(s) established for all or any part the
Mortgaged Property); and grant easements for public or private roads to serve all
or any part of the Mortgaged Property, and public or private utility rights-of-way
and easements (including, but not limited to, rights-of-way and easements for
water, electricity, telephone, fiber optics, telecommunications, cable television,
gas, waste removal and storm and sanitary sewer service and facilities) to tiSi~ ::
appropriate governmental, public utility or private entity.
iv. Cause portions of the Mortgaged Property to be treated as
general common elements and/or limited common elements for any
condominium or other planned community that includes all or any part of the
Mortgaged Property, for any or all of the purposes referred to in subsection (iii)
above.
Prior to submission of any of the foregoing petitions, pla[.s.,._applications,
dedications, grants of easement, declarations of covenants, conditions and
restrictions, instruments establishing a condominium or other planned
community or providing for the governance thereof, or similar documents to
accomplish any or all of the matters described in subsections (i), (ii), (iii) or (iv)
above (the "Land Use Documents"), the Mortgagor shall provide a copy to
Lender for Lender's review and approval (which shall not be unreasonably
withheld, conditioned or delayed provided such activities are consistent with the
development of the Mortgaged Property as a luxury golf and sporting club and
community). If required by applicable law, the Lender shall join with the
MortgagOr in the execution and, if applicable, recordation, of any Land Use
Documents, and in each such instance, such action by Lender shall constitute
Lender's subordination of the lien of this Mortgage to and agreement by Lender
to attorn to and not disturb or terminate any of the rights or interests granted by
such Land Use Documents. All expenses in connection with the matters
described above shall be the sole obligation of the Mortgagor
14. Mortgage As Security Agreement and Fixture Filing. This Mortgage shall, as
to any personal property covered by it (specifically including but not limited to the Equipment and other
assets described in the preambles to this Mortgage) be deemed to grant a security interest in the
persoihal property pursuant to the Uniform Commercial Code. Mortgagor agrees, upon request of Lender
from time to time, to promptly furnish a detailed list of personal property subject to this Mortgage and,
upon request by Lender, to immediately execute, deliver and/or file any mortgage, security agreement or
financing statement to include specifically this list of personal property and to immediately take such other
actions as deemed.necessary or desirable by Lender to evidence, perfect.or continue the security
interests granted in this Mortgage; and Lender or any agent of Lender is hereby authorized in its own
name, and is also hereby irrevocably appointed (which appointment is coupled with an interest) the true
and lawful attorney in fact for Mortgagor (with full power of substitution) in the name and place of
Mortgagor, to execute and file such security agreements and financing statements and to take such other
actions as deemed necessary or desirable by Lender to evidence, perfect or continue the security
interests granted in this Mortgage. Upon the occurrence of any default under this Mortgage, Lender shall
have alt of the rights and remedies of a secured party under the Uniform Commercial Code or otherwise
provided by law or by this Mortgage including, without limit, the right to require Mortgagor to assemble the
personal property and make it available to Lender at a place to be designated by Lender which is
reasonably convenient to botl~ pa'rties, the right to take possession of the personal property With or
without demand and'with or w thout process of I~w and the right to sell and dispose of it and distribute the
proceeds according to law. Mortgagor agrees th~at any requirement of reasonable notice shall be met if
t least ten 1~0 da s rlor to the date of sale, disposition or other
Lender sends notice to Mortgagor a ( ) Y P ' ' "
MORTGAGE #C0390 (1-4-05) Page 10 of 25
event giving rise to the required notice. Mortgagor agrees that the proceeds of any disposition of the
personal property may be applied by Lender first to Lender's reasonable expenses in connection with the
disposition including, without limit, attorney fees, and then to payment of the Indebtedness. At any sale or
other disposition of the personal property pursuant to this paragraph, Lender disclaims all warranties
which would otherwise be given under the Uniform Commercial Code, including without limit a disclaimer
of any warranty relating to title, possession, quiet enjoyment or the like, and Lender may communicate
these disclaimers to a purchaser at such disposition. This disclaimer of warranties will not render the sale
commercially unreasonable. Mortgagor agrees that Lender shall be under no obligation to accept any
noncash proceeds in connection with any sale or disposition of the personal property covered by this
Mortgage, unless failure to do so Would be commercially unreasonable. If Lender agrees in its sole''-'~:-
discretion to accept noncash proceeds (unless the failure to do so would be commercially unreasonable),
Lender may ascribe any commercially reasonable value to such proceeds. Without limiting the foregoing,
Lender may apply any discount factor in determining the present value of proceeds to be received in the
future or may elect to apply proceeds to be received in the future only as and when such proceeds are
actually received in cash by Lender. Mortgagor represents that its exact name is its name as set forth in
this Mortgage and that Mortgagor is located (as determined pursuant to Article 9 of the Uniform
Commercial Code) in Wyoming for filing purposes. Mortgagor will give Lender not less than 10 days prior
written notice of all contemplated changes in Mortgagor's name, location, chief executive office, or
principal place of business, but the giving of this notice shall not cure any event of default caused by this
change. "Uniform Commercial Code" means the Wyoming Uniform Commercial Code, as amended,
revised or replaced from time to time. Notwithstanding the foregoing, the parties intend that the terms
used herein which are defined in the Uniform Commercial Code have, at all times, the broadest and most
inclusive meanings possible. Accordingly, if the Uniform Commercial Code shall in the future be
amended or held by a court to define any term used herein more broadly or inclusively than the Uniform
Commercial Code in effect on the date of this Mortgage, then such term, as used herein, shall be given
such broadened meaning. If the Uniform Commercial Code shall in the future be amended or held by a
court to define any term used herein more narrowly, or less inclusively, than the Uniform Commercial
Code in effect on the date of this Mortgage, such amendment or holding shall be disregarded in defining
terms used in this Mortgage.
The Mortgagor agrees to execute, acknowledge and deliver, from time to time, such security
agreements, property lists, financing statements or other instruments as may be requested by Lender to
further evidence, protect and perfect the lien of this Mortgage on any of the foregoing under the
provisions of the Uniform Commercial Code in effect in Wyoming or otherwise, and this Mortgage shall
also be considered to be and may be construed as a security agreement and fixture filing with reference
to any of the foregoing.
15. Assignment of Rents. As additional security for the payment of principal and
ipterest of the Indebtedness and for the performance of the covenants and agreements contained herein
and in the Other Agreements, the Mortgagor hereby sells, assigns, transfers and sets over unto the
Lender, its successors and assigns, all the rents, profits and income under any written or oral lease or
leases of all or any pad of the Mortgaged Property (including any extensions, amendments or renewals.
thereof), whether due or to become due, including all such leases now in existence and also those
coming into existence at any time during the period this Mortgage is in effect and all guaranties of the
tenant's obligations under each such lease. This assignment of rents shall run with the land and be good
and valid as against the Mortgagor herein or those claiming by, under or through the Mortgagor, from the
date of the recording of this instrument. This assignment shall continue to be operative during the
foreclosure or any other proceedings taken to enforce this Mortgage. If a sale or foreclosure shall result
in a deficiency, this assignment shall stand as security during the redemption period for the payment of
such deficiency, whether or not the Lender is the purchaser at the foreclosure sale. This assignment is
given as collateral security only and shall not be construed as obligating Lender to perform any of the
covenants or undertakings required to be performed by Mortgagor contained in any such assigned
leases. The collection of rents by the Lender shall in no way waive the right of the Lender .to foreclose
this Mortgage. i i
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MORTGAGE #C0390 (14-05)
Page 11 of 25
The Mortgagor shall perform all of the material obligations of the lessor under all leases of the
Mortgaged Property in accordance with the terms and provisions thereof. The Lender shall have no
obligation to account for any security deposit unless the same has been actually deposited with the
Lender.
In the event of default in any of the terms or covenants of this Mortgage, the Mortgagor shall,
upon demand therefor made by the Lender, deliver and surrender possession of the Mortgaged Property
to the Lender, which shall have the power, either directly or through a rental agent selected by the
Lender, to operate, maintain, improve (for the purpose of facilitating leasing) and repair the Mortg.a.g_ed
Property. The Lender or its agent may collect the rents and income therefrom, rent or lease the ....
Mortgaged Property or, at its option, any portion thereof, upon such terms and for such time and as the
Lender may deem appropriate, terminate any tenancy and maintain proceedings to recover rents or
possession of the Mortgaged Property from any tenant or trespasser, and apply the net proceeds of such
rent and income (after payment of all costs and expenses of the Lender) to the Indebtedness or any other
amounts owing under this Mortgage or any of the Other Agreements (including without limitation costs
and actual attorney fees) in such order as the Lender may choose. If the Mortgagor fails, refuses or
neglects to de iver or surrender such possession, the Lender shall be entitled to the appointment of a
receiver ex parle of the Mortgaged Property and of the earnings, income, issue and profits thereof, with
such powers as the court making such appointment may confer.
Mortgagor agrees to execute and deliver to Lender, such specific assignments of rent as Lender
may from time to time request with respect to any existing or future lease of the Mortgaged Property, or
any part thereof, during the term of this Mortgage, each such assignment to be in form and content
satisfactory to Lender and the terms thereof shall be considered incorporated herein. If, as additional
security for the Indebtedness the Mortgagor has executed to the Lender one or more assignments of
even date herewith of its interest as Landlord in one or more leases leasing all or part of the Mortgaged
Property, or if tr~e Mortgagor does so n the future, any default by the Mortgagor under the terms and/or
conditions of any such assignment shall be a default under the terms and conditions of this Mortgage,
entitling the Lender to exercise any and all the rights and remedies provided b)y this Mortgage, and if the
Mortgagor shall fail to perform and discharge any of the obligations, covenants and agreements required
to be performed by it under such assignment, then the Lender may elect to perform the same and any
sums which may be so paid out by the Lender, including the costs, expenses and actual attorneys' fees
paid out in any suit affecting the same, shall bear interest from the dates of such payments at the rate
specified in Paragraph 8 hereof, shall be paid by Mortgagor to Lender upon demand and automatically
shall be deemed a part of t~e Indebtedness and secured hereby.
16. Taxes or Assessments on Mortgage or Indebtedness. The Mortgagor will
promptly pay all taxes and assessments assessed or levied under or by virtue of any state, federal or
municipal law or regulation which shall be levied on account of this Mortgage or the Indebtedness, or any
part thereof, or. upon the interest of the Lender hereunder, provided, however that in the event of the
passage of any such law or regulation, the entire Indebtedness shall thereupon become immediately due
and payable at the option of the Lender. If Mortgagor fails to make such payments, the Lender may make
such payments and any such payments so advanced by the Lender shall become a part of the
Indebtedness and payable forthwith, with interest at the rate specified in Paragraph 7 hereof and secured
hereby.
17. Waiver of Rights by Mortgagor. Without notice to or consent of the Mortgagor,
the Lender may extend or renew the Indebtedness or any part thereof with or without an increased or
decreased rate of interest release one or more persons primarily or secondarily liable for the payment of
the same, release any other collateral, mortgage or security securing the same, accept additional
security, subordinate the lien or charge hereof or exerc'se or refuse to exercise forbearance of any kind
and any such action shall tn no way affect the enforceability of this Modgage or operate in any way to
release, discharge, modify or change the origina liability of Mortgagor hereunder. Lender.may sell
ass gn or grant part c pations in any of the Ind~..ebtedness and any related obligations, including, without
m t, this Mortgage Lender may provide infoJ~rnation relating to this Mortgage or relating to Mortgagor to
Lender's parent, affiliates, subsidiaries, servide providers, ass gnees and participants. The Mortgagor
MORTGAGE #C0390 (1-4-05)
Page 12 of 25
0905gS2
i.' 06C,$
hereby waives demand, presentment and notice of default in payment of the Indebtedness or any part
thereof. The Lender's acceptance of the late payment of any sum hereby secured shall not constitute a
waiver of the right of the Lender to require prompt payment when due of all other sums so secured, to
charge interest at the highest default rate set forth in the Mortgage Note, or any other note or other
evidence of indebtedness evidencing the Indebtedness unless and until all payments are brought current
and other default(s) cured, or to accelerate maturity for default in payment of any said sum or to proceed
with foreclosure or sale for any other default then existing.
18. Default and Acceleration.
following events, Mortgagor shall be in default:
Upon the occurrence of any one or more of th..e._
(a)
first due; or
Failure to make any payment due Lender under the ndebtedness when
(b) Commencement of any proceedings under any state or federal
bankruptcy or insolvency law or laws for the relief of debtors by or against Mortgagor, or
the appointment of a receiver, trustee, court appointee, sequestrator or otherwise, for all
or any part of the property of Mortgagor, provided, however, that the commencement of
involuntary insolvency or bankruptcy proceedings against Mortgagor shall not be an
event of default if the petition commencing such proceedings is promptly controverted by
Mortgagor and the proceedings are dismissed within 60 days after the date of the filing
thereof (provided that in any event, during the pendency of any such proceedings, Lender
shall be relieved from any obligation to make loans or otherwise extend credit under the
Loan Agreement or any other loan document); or
(c) Dissolution, termination of existence insolvency, appointment of a
receiver for any part of the property of, assignment for the benefit of creditors by the
Mortgagor or any endorser guarantor or surety for the Mortgagor; or
(d) Any warranty, representation, financia statement, or other information
made, given or furnished to Lender by or on behalf of Mortgagor shall be, or shall prove
to have been, false or materially misleading when made, given, or furnished; or
(e) The Mortgaged Property or any portion thereof is the subject of any
foreclosure, lien enforcement or seizure or forfeiture proceedings of any kind, civil,
criminal or administrative or if execution is made or attempted thereon; or
(f) Sale or other disposition by Mortgagor (except 144 ACRE PARCEL,
LLC) of any substantial portion of its assets or property (except as permitted by the Loan
Agreement) or voluntary suspension of the transaction of business by Mortgagor (except
144 ACRE PARCEL, LLC); or
(g) The breach of any other term or cond'tion of this Mortgage, the Loan
Agreement, the Mortgage Note or any of the Other Agreements and, if applicable, the
failure to cure such default prior to the expiration of any cure period
Upon the occurrence of a default, the Lender may without any requirement of notice
hereunder declare all of the ndebtedness immediately due and payable, although the
time for payment thereof may not have expired, anything herein or in any of the
instruments evidencing the InCebtedness to the contrary notwithstanding. Any failure by
the Lender to exercise its option hereunder shall not constitute a wa ver of the right to
exercise the same at any other time. Any action taken by the Lender hereunder to
enforce this Mortgage shall constitute its declaration hereunder.
MORTGAGE #C0390 (1-4-05)
Page 13 of 25
090568:
Notwithstanding any provision of the law, this Mortgage, the Mortgage Note or the Other
Agreements (as cefined above) to the contrary, Lender agrees that Borrower may cure
any default under the provisions of the this Mortgage (except a default under the
provisions of paragraphs 18(a) through (f)) and any default under the Other Agreements
(as defined above) provided (i) that at the time of such cure Borrower cures all such
defaults and reimburses Lender any expenses incurred as a result of such defaults; and
(ii) that Borrower completes such cure at least 30 days before the Property is first
scheduled for any foreclosure sale under the provisions of this Mortgage.
19. Lender's Remedies. Whenever any default shall occur, the Lender is he'~elSy
authorized and empowered to enforce this Mortgage, without any requirement of notice to Modgagor
whatsoever, by any of the following methods, chosen at the Lender's sole discretion:
(a)
Mortgage;
By commencing an action in an appropriate court to foreclose this
(b) By selling or causing to be sold the Mortgaged Property pursuant to the
power of advertisement and sale statute in such case made and provided;
(c)
Code; or
By exercising its rights as a secured party under the Uniform Commercial
(d)
or by law.
As otherwise allowed under this Mortgage, any of the Other Agreements
At any foreclosure sale by advertisement or pursuant to judicial proceedings, the Mortgaged
Property shall be sold as a single parcel or in such parcels, and in such order, as the Lender may direct.
Mortgagor specifically recognizes that the Lender would not make the loans secured by this Mortgage
were it not for Lender's rights hereby granted to sell the Property ~n one or in several parts, at Lender's
sole option, for any reason or no reason at all. Some of the reasons why Lender deems it necessary to
have these rights include, but are not limited to the folloWing: (i) various different businesses are operated
on or from various parts of the Mortgaged Property, and (ii) Lender requires that, in the event that any
portion of the Mortgaged Property is or is suspected as being environmentally contaminated, it shall have
the right to withhold such portion or portions of the Property from foreclosure or to sell it at a separate
foreclosure sale, as Lender deems appropriate in its sole discretion.
In the event of foreclosure of this Mortgage or the enforcement by Lender of any other remedies
under this Mortgage, Mortgagor waives any right otherwise available 'n respect to marshalling of assets
which-'secure the Indebtedness or to require Lender to pursue its remedies against any other assets or
any other party.
Such sale by the Lender under power of sale or pursuant to judicial foreclosure action may be
conducted by the proper public official and any person, including the Lender, may purchase the
Mortgaged Property at such sale. If the amounts secured hereby are not paid when due whether by
acceleration or otherwise, it shall be lawfu for Mortgagee to proceed to enforce the provisions of this
Mortgage, either by suit at law or in equity, as it may elect, or to foreclose this Mortgage by advertisement
and sale of the Property at public venue, for cash according to Wyoming statutes governing mortgage
foreclosures, and cause to be executed and de ivered to the purchaser or purchasers at any such sale a
good and sufficient deed or deeds of conveyance of the property so sold and to apply the proceeds
arising from such sale, first to the payment of all costs and expenses incurred by Mortgagee n connection
therewith, including, without limitation court costs legal fees and expenses, fees of accountants,
engineers consultants, agents or managers and expenses of any entry or taking or possession, holding,
valuing, preparing for sale, advertising, selling and conveying; second to the payment 'of the amounts
r
secured hereby; and third any surplus thereafter remaining to Mortgagor or Mortgagor s successors o
assigns, as their interests may be established'jto Mortgagee's reasonable satisfaction. There shall be
included in any or all such foreclosure procee~lings, a reasonable attorney's fee as part of the
MORTGAGE #C0390 (1-4-05)
Page 14 of 25
Indebtedness In case Mortgagee shall fail promptly to foreclose upon the occurrence of any event of
default, Mortgagee shall not thereby be prejudiced in its right of foreclosure at any time thereafter during
which such default shall continue and Mortgagee shall not be prejudiced in its foreclosure rights in the
case of further default or defaults.
In addition to the foregoing upon the occurrence of any event of default and at any time
thereafter, Lender shall have, '~n addition to al other rights and remedies available to it as set forth herein
or in the other Loan Documents, all rights se[ forth in the Uniform Commercial Code as then in effect in
Wyoming ("UCC"), regardless of whether the UCC applies to the security transactions covered by tills
Agreement, including, without limitation, the right to accelerate the maturity of the Loan without notii~e-or
demand and to take possession of such collateral and any proceeds thereof, wherever located.
Mortgagor shall make such personal property collateral available to Mortgagee at a place to
designated by Mortgagee that is reasonably convenient for both parties. Insofar as the collateral shall
consist of accounts, insurance policies, instruments, chattel paper, or the like, Mortgagor hereby
irrevocably appoints Mortgagee its attorney-in-fact to demand, collect, receipt for, settle, compromise,
adjust, sue for, foreclose, or realize upon such collateral as Mortgagee may determine and with respect
thereto, Mortgagee shall have the right to endorse notes, checks, or other evidence of payment on behalf
of and in the name of Mortgagor.
Mortgagor will remain liable for any deficiency owing to Mortgagee after application of the net
proceeds of any foreclosure sale or other sale of all or any part of the collateral. In the case of a sale
pursuant to the power of sale granted to Lender under this Mortgage, the official conducting the sale after
deducting all costs, expenses and fees of sale, shall apply the proceeds of sale in accordance with the
statute in such case made and provided. In the case of a judicial sale, the official conducting the sale
after deducting all costs, expenses and fees (including reasonable attorneys' fees) relating to the sale and
after reimbursing the Lender for all costs, expenses and fees paid or incurred by it In connection with
such action shall apply the proceeds Of sale as directed by the court having jurisdiction thereof or as
otherwise provided by law.
20. Possession of the Mortgaged Property-Appointment of a Receiver. In the
case of any default or breach under the terms and covenants of this Mortgage, Mortgagee shall at once
become entitled to the possession, use and enjoyment of the Mortgaged Property and to all rents,
revenue, income, issues and profits therefrom, from the date of the accruing of such right and continuing
during the pendency of foreclosure proceedings including any pe¢od of redemption. Such possession
shall be at once delivered to Mortgagee or the holder of the certificate of purchase upon request. Upon
refusal, the delivery of such possession may be enforced by Mortgagee by an appropriate civil suit or
proceeding. Upon the occurrence of a default or in the event Mortgagor has leased or rented the
Mortgaged Property to a tenant, Mortgagee shall be entitled to appointment of a receiver for said
Mortgaged Property to receive the rents, revenue, income, issues and profits therefrom from and after
~ny such default, including the time covered by foreclosure proceedings, as a matter of right without
regard to the solvency or insolvency of Mortgagor or of the then owner of said Mortgaged Property and
without regard to the value of the Mortgaged Property. Such receiver may be appointed by any court of
competent jurisdictipn upon ex-parle application and without notice, notice being hereby expressly
waived. All rents, issues, profits, income and revenue from said Mortgaged Property shall be applied by
such receiver to the payment first of the fees and costs of such receivership proceeding and then to the
Indebtedness. The balance remaining, if any, shall be disposed of in accordance with the orders and
directions of the court. The fees of any such receiver, attorneys' fees incurred in appointment of the
receiver and administration of the receivership estate and all costs, shall be due and payable upon
demand and shall become additional Indebtedness. Failure to pay said fees and costs upon demand
shall be a breach of the terms of this Mortgage. The rights of Mortgagee under this paragraph shall be in
addition to and not in lieu of any rights existing by virtue of a separate assignment of leases, rents or
profits.
21. Security Interest in Personal Property in Lender's Possession. A~ further
and additional security for the repayment of th~llndebtedness and performance of the Mortgagor's
obligation hereunder and under the Other AgrSements, the Mortgagor hereby gives and grants to the
MORTGAGE #C0390 (1-4-05) Page 15 of 25
Lender, its successors and assigns, a security interest in all personal property of any nature whatsoever
at any time in the possession of the Lender and in which the Mortgagor may now or hereafter have any
interest, any and all of which may be applied by the Lender in event of default hereunder upon the
Indebtedness in such manner as the Lender, in its discretion, deems advisable.
22. Provisions Related to Projects. This Mortgage is a Construction Mortgage
pursuant to which funds are to be advanced by the Lender to the Mortgagor for various purposes as set
forth in the Loan Agreement, including the purpose of constructing a golf and sporting club and residential
community on the Mortgaged Property ("Project") in accordance with plans and specifications des.c, ri_bed
in and on the other terms and conditions provided for in the Loan Agreement. Provided that this ' -
Mortgage ~s not then in default, the Lender agrees that:
(a) From and after the date upon which the Mortgaged Property, or part
thereof, is or has been established as a Project, the Mortgagor promptly and fully shall
comply in all respects with its obligations as the "Developer" thereof under the master
deeds and other documents relating to the Projects and under applicable law, as the
same may be amended from time to time.
(b) The lien and security interest of this Mortgage shall cover, as additional
security for repayment of the indebtedness secured by this Mortgage, all rights of the
Mortgagor as the Developer of all present and future Projects within the Premises or any
part thereof and as grantor under the master deeds with respect thereto, as well as any
amounts from time to time escrowed pursuant to the terms of any lot purchase
agreements now or hereafter entered into by the Mortgagor, all of which Mortgagor does
hereby assign as collateral to the Lender.
(c) The Mortgagor agrees that it will not terminate or abandon any Project or
amend any master deed or use any form of escrow agreement, condominium purchase
agreement or other condominium document which has not been approved by the Lender
in writing without the Lender's written consent (which consent shall not be unreasonably
withheld, conditioned or delayed). The Mortgagor promptly shall send to the Lender
copies of all disclosures statements and updated thereof, notices of community
association meetings or action and association financial records as soon as they
become available from time to time.
23 Late Charges. The Mortgagor, at the option of the Lender, shall pay a "late
charge" of ten percent (10%) of any delinquent amount, when paid more than ten (10) days after the due
date thereof, to cover the extra expense nvolved in handling delinquent payments.
24. Miscellaneous Provisions. This Mortgage, together with all other instruments
evidencing the ndebtedness, or any part thereof, shall be governed by and construed in accordance with
the laws of the State of Wyoming and Mortgagor agrees that the sole and exclusive forum for the
determination of any action relating to the validity and enforceability thereof shall be either an appropriate
court of the State of Wyoming or that court of the United States which includes within its territorial
jurisdiction the State of Wyoming. Unenforceability for any reason of any provision of this Mortgage shall
not limit or impair the operation and validity of any other provision or provisions hereof. If a court of
competent jurisdiction should declare that Mortgagor's obligation to pay interest on the principal balance
of the Indebtedness or of any part thereof is at a rate which could subject the Lender to either civil or
criminal liability as a result of being in excess of the maximum interest rate which the Mortgagor is
permitted by law to contract or agree to pay, giving due consideration to the contract or agreement to pay
and giving (]ue consideration to the execution date of this Mortgage, then, in that event, the rate of
interest applicable thereto shall be deemed to be immediately reduced to such maximum rate and the
interest payable shal be computed at such maximum rate and all previous payments n excess of the
maximum rate shall be deemed to have been i~ayments in reduction of principal and not of interest.
MORTGAG£ #C0390 (1-4-05) Page 16 of 25
O 05G S;d
25. Interest Rate. Anything in this Mortgage or in any note or other instrument
evidencing the Indebtedness or any part thereof to the contrary notwithstanding, except for greater rate of
interest allowed under Paragraph 8 hereof, from and after any default, the entire Indebtedness shall bear
interest at the highest rate of interest set forth in any instrument evidencing the Indebtedness or any part
thereof as applying after default thereunder.
26. Costs and Expenses. Mortgagor hereby agrees to pay to the Lender and the
Lender shall be entitled to collect all costs and expenses incurred'by or on behalf of Lender (i) in
connection with the closing and the administration throughout the term hereof, the Mortgage and th.e_
Indebtedness, (ii) in connection with any amendment, extension or modification hereof or thereof'to-which
the Lender may agree, (iii) in connection with the pursuing of any of the Lender's remedies provided for in ·
this Mortgage and/or in any of the Other Agreements upon a default, and (iv) in connection with any
criminal, civil or administrative proceedings of any kind relating in any way to the Mortgaged Property, the
Indebtedness or any of the Other Agreements. Such costs and expenses in connection with the
foregoing shall include, but shall not be limited to, actual attorney fees and legal expenses in connection
with any of the foregoing. Such amounts shall be due and payable by Mortgagor forthwith upon demand,
shall bear interest from the dates upon which they were incurred at the rate specified in Paragraph 8
hereof and automatically shall constitute part of the Indebtedness hereunder and secured by this
Mortgage.
27. Environmental Provisions.
(a) The Mortgagor represents, warrants and covenants that the Mortgagor
has not used Hazardous Materials (as later defined) on or affecting the Mortgaged
Property in any manner which violates Environmental Laws (as later defined), that there
is no condition concerning the Mortgaged Property which could require remediation
pursuant to applicable Environmental Laws, and that, to the best of the Mortgagor's
knowledge, no prior owner of the Mortgaged Property or any current or prior occupant
has used Hazardous Materials on or affecting the Mortgaged Property in any manner
which violates Environmental Laws. The Mortgagor covenants and agrees that neither it
nor any occupant shall use, introduce or maintain Hazardous Materials on the Mortgaged
Property in any manner unless done in strict compliance with all Environmental Laws.
(b) The Mortgagor shall conduct and complete all investigations,
environmental audits, Studies, sampling and testing, and all remedial, removal and other
actions necessary to clean up and remove all Hazardous Materials on or affecting the
Mortgaged Property, whether caused by the Mortgagor or a third party, in accordance
with all Environmental Laws to the satisfaction of the Lender, and in accordance with the
orders and directives of all federal, state and local governmental authorities. Any
remedial, removal or other action by the Mortgagor shall not be deemed a cure or waiver
of any breach of this paragraph due to the presence or use of Hazardous Materials on or
affecting the Mortgaged Property. Additionally, the Mortgagor shall defend, indemnify
and hold harmless the Lender, its employees, agents, shareholders, officers and
directors, from and against any and all claims, demands, penalties, fines, liabilities,
settlements, damages, costs or expenses (including, without limit, actual attorneys' fees)
of whatever kind or nature arising out of or related to (i) the presence, disposal, release
or threatened release of any Hazardous Materials on, from or affecting the Mortgaged
Property or the soil, water, air, vegetation, buildings, personal property, persons or
animals on the Mortgaged Property, (ii) any personal injury (including without limit
wrongful death) or property damage (real or personal) arising out of or related to these
Hazardous Materials, (iii) any lawsuit brought or threatened, settlement reached or
Government order related to these Hazardous Materials, (iv) the cost of removal of all
Hazardous Materials from all or any portion of the Mortgaged Property, (v) talcing
necessary precautions to prot. ect aga nst the release of Hazardous Materials on or
affecting the Mortgaged Prol~rty, (vi) complying with all Environmental Laws, and/or (vii)
any violation of Environments(I Laws or requirements of the Lender, which are based
MORTO^OE #C0390 (1-4-05) Page 17 of 25
.. 0'6?0
upon or n any way related to Hazardous Materials including, without limit, attorneys and
consultants' fees (the attorneys and consultants to be selected by the Lender),
investigation and laboratory fees, environmental studies required by the Lender (whether
prior to foreclosure, or otherwise), court costs and litigation expenses. Upon the request
of the Lender, the Mortgagor and any guarantor shall execute a separate indemnity
consistent with this paragraph.
(c) The Mortgagor has never received any notice ("Environmental
Complaint") of any violation of Environmental Laws with respect to the Mortgagor or the
Mortgaged Property (and, within five (5) days of receipt of any Environmental CoiffilSlaint,
the Mortgagor shall give the Lender a copy of it), and to the best of the Mortgagor's
knowledge, there have been no actions commenced or threatened by any party with
respect to the Mortgagor or the Mortgaged Property for noncompliance with any
Environmental Laws.
(d) In the event this Mortgage is foreclosed or the Mortgagor tenders a deed
in lieu of foreclosure, the Mortgagor shall deliver the Mortgage to the Lender, purchaser
or grantee, as the case may be, free of any and all Hazardous Materials so that the
condition of the Mortgaged Property shall not be a violation of any Environmental Laws.
(e) Upon ten (10) days notice to the Mortgagor (except in an emergency or
where not practical under applicable law, in which case notice is waived), and without
limitation of the Lender's other rights under this Mortgage or elsewhere, the Lender has
the right, but not the obligation to enter on the Mortgaged Property and to take other
actions as it deems appropriate to investigate or test for, clean up, remove, resolve,
minimize the impact of or advise governmental agencies of the possible existence of any
Hazardous Materials or Environmental Complaint upon the Lender's receipt of a notice
from any source asserting the existence of any Hazardous Materials or an Environmental
Complaint pertaining to the Mortgaged Property which, if true, could result in an order
suit or other action against the Mortgagor and/or any part of the Mortgaged Property
which, in the sole opinion of the Lender, could jeopardize its security un(~er this
Mortgage. All costs and expenses incurred by the Lender in the exercise of any of these
rights shall be due and payable by Mortgagor forthwith upon demand, shall bear interest
from the dates upon which they were incurred at the rate specified in Paragraph 7 hereof
and automatically shall constitute part of the Indebtedness hereunder and secured by this
Mortgage. Any such actions conducted by the Lender shall be solely for the benefit of
and to protect the interests of the Lender and shall not be relied upon the Mortgagor or
any third party for any purpose whatsoever. By conducting any such actions, the Lender
does not assume control over the environmental affairs or operations of the Mortgagor
nor assume any liability of the Mortgagor or any third party.
(f) The provisions of this paragraph entitled Hazardous Materials shall be in
addition to any and all other obligations and liabilities the Mortgagor may have to the
Lender at common law or pursuant to any other agreement, and shall survive (i) the
repayment of all sums due under any Notes or other'loan documents executed in
connection with this Mortgage and the repayment of all other indebtedness, (ii) the
satisfaction of all other obligations of the Mortgagor under this Mortgage and under the
other loan documents and evidence(s) of indebtedness (iii) the discharge of this
Mortgage, and (iv) the foreclosure of this Mort§age or acceptance of a deed in lieu of
foreclosure.
(g) For purposes of this Mortgage, (i) "Hazardous Materials" means each
and all of the following hazardous materials and/or substances as defined, in a. ny
Env ronmenta Law, petroleu;p, petroleum byproducts, natural gas, flammable explosives,
rad oact ve mater als, and to;~ic materials, and (ii) "Environme, ntal Laws" mean any and
all federal, state, local or other laws (whether under common law, by legislative action or
Mo [tTn^GE #CO390 (~-4-0s) Page 18 of 25
067.t
otherwise), rules, policies, ordinances, directives, orders, statutes, or regulations an
object of which is to regulate or improve health, safety, or the environment including,
without limit, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 USC § 9601 et seq.) or any similar state law or local
ordinance, the Resource Conservation and Recovery Act as amended (42 USC § 6901
et seq.) or any similar state law or local ordinance, the Federal Water Pollution Control
Act, 33 USC § 1251 et seq. or any similar state law or local ordinance, or the Clean Air
Act, 42 USC § 7401 et seq. or any similar state law or local ordinance.
(h) Notwithstanding anything to the contrary contained in this paragrA~l~i the
Lender does acknowledge that certain Hazardous Materials are used by Mortgagor in
connection with its daily business operations, and Lender hereby consents to such use;
however, Mortgagor hereby represents and warrants that it shall use those Hazardous
Materials strictly in compliance with all Environmental Laws.
(i) Mortgagor shall indemnify, defend and save harmless Lender from and
against any legal or administrative proceedings brought against Lender and all demands,
claims, liabilities, fines, penalties, or costs (including reasonable attorneys' fees)
occasioned by the existence, during Mortgagor's ownership, of Hazardous Substances
on or in the Mortgaged Property.
28. Indemnity. The Mortgagor hereby covenants and agrees that no liability shall be
asserted or enforced against the Lender in the exercise of the rights and powers granted tothe Lender in
this Mortgage, and the Mortgagor hereby expressly waives and releases any such liability. The
Mortgagor shall indemnify and save the Lender harmless from and against any and all liabilities,
obligations, losses, damages, claims, costs and expenses, including reasonable attorneys' fees and Court
costs (collectively, "Claims"), of whatever kind or nature which may be imposed on, incurred by or
asserted against the Lender at any time by any third party which relate to or arise from: (a) any suit or
proceeding (including probate and bankruptcy proceedings), or the threat thereof, in or to which the
Lender may or does become a party, either as plaintiff or as a defendant, by reason of this Mortgage or
for the purpose of protecting the lien of this Mortgage; (b) the offer for sale or sale of all or any portion of
the Premises; and (c) the ownership, leasing, use, operation or maintenance of the Premises, if such
Claims relate to or arise from actions taken prior to the surrender of possession of the Premises to the
Lender in accordance with the terms of this Mortgage; provided, however, that the Mortgagor shall not be
obligated to indemnify or hold the Lender harmless from and against any Claims directly arising from the
gross negligence or willful misconduct of the Lender. All costs provided for herein and paid for by the
Lender shall be additional Obligations and shall become immediately due and payable upon demand by
the Lender and with interest thereon from the date incurred by the Lender until paid at the Default Rate.
29. Construction Mortgage. This Mortgage is a construction mortgage and secures
loans made by Mortgagor to Lender to pay 'the costs to construct, improvements on the Premises.
30. Partial Releases. Lender agrees that it shall release the Mortgaged Property
from the lien of this Mortgage upon receipt of the Release Price set forth in the Loan Agreement as to
such portion of the Mortgaged Property and subject to and in accordance With the provisions with respect
thereto contained in the Loan Agreement.
31. Remedies Cumulative. All of the rights and remedies granted to the Lender
hereUnder shall be cumulative and not. exclusive of any other remedy provided by law and may be
exercised either successively or concurrently. If this Mortgage provides for the imposition of any late
charge(s), default or other interest rate, or costs and expenses in an amount or at a rate which is
inconsistent with or different than that provided in any instrument evidencing the Indebtedness or in any
of the Other Agreements, then, at the Lender's option, the provision(s) of this Mortgage, such .instrument
or such Other Agreement which provides for ~tt~e greatest amount or rate shall govern with respect to such
amount or rate:
MOr~TO^OE ~co39o (~-4-o5) Page 19 of 25 ;
32. Notices. Any writing mailed by certified mail return receipt requested in an
envelope with postage prepaid and addressed to the owner of record of the Modgaged Property
according to the last address actually furnished to the Lender, shall be conclusively deemed to have been
given on the date of mailing and to have been received by the Mortgagor in due course of the mail, but
under no circumstances shall this paragraph be construed as in any way obligating the Lender to give any
notice whatsoever to the Mortgagor hereunder.
33. Definitions; Interpretation. The term "Lender" wherever it appears shall
include the person or entity identified as such on the first page of this Mortgage, its successors and
assigns, and also any lawful owner, holder or pledgee of the Indebtedness. The term "Mortgagdi'"'-:'
wherever it appears herein, shall include and bind the undersigned and either or any of them and their
respective heirs, executors, administrators, legal representatives, successors and assigns. If two or more
persons execute this instrument, the obligation hereunder, and each grant of lien and security interest
hereby made, shall be that of all and of any one or more of them, jointly, and of each severally. Wherever
used, the singular number shall include the plural and the singular and the use of any gender shall be
applicable to all genders.
34. Waiver of Guarantor or Surety Defenses. If the Mortgagor under this
Mortgage is not also the maker of the Note, then Mortgagor acknowledges and agrees that this Mortgage
is given to Mortgagee as additional security for the obligations contained in the Note, and Mortgagor does
hereby unconditionally and irrevocably waive all of the following potential rights: (i) Mortgagor's rights of
subrogation reimbursement, indemnification and contribution and any other rights and defenses that are
or may become available to Mortgagor by reason of its potential status as a guarantor or surety; and (ii)
Any rights or defenses Mortgagor may have in respect of its obligations as the Mortgagor hereunder by
reason of any election of remedies by Mortgagee, even though that election of remedies such as a
nonjudicial foreclosure with respect to security for a guaranteed obligation, may destroy or impact
Mortgagor's rights of subrogation and reimbursement against the maker of the Note.
35. WAIVER OF TRIAL BY JURY. MORTGAGOR AND LENDER
ACKNOWLEDGE THAT EACH PARTY, AFTER CONSULTING (OR HAVING HAD THE
OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY AND
VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT WAIVES ANY RIGHT TO TRIAL BY JURY IN
THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN
ANY WAY RELATED TO, THIS MORTGAGE, THE INDEBTEDNESS AND/OR EACH OF THE OTHER
AGREEMENTS.
N WITNESS WHEREOF, the M~rtgagor has executed this Mortgage (or, if a corporation, has
caused this Mortgage to be executed on its behalf by its duly authorized officer or officers) the day and
year first above written.
144 ACRE PARCEL, LLC, a Wyoming limited
!iabi~y comp_any
L'. Rict~ard Edgcomb, Ma~n~g'er
CANYON CLUB, INC.,
a Wyoming corporation
L Richard Edgcomb, I~'~'~sident
L/
MORTGAGE t/C0390 (1-4-05) Page 20 of 25
06';'3
STATE OF WYOMING )
COUNTY OF _-'~-~F'~ . ) ) ss. ,--. r~,~. ~
The foregoing instrument was acknowledged before me this ~ day of ~mur~ ,~, b~
Richard Edgcomb,~ as the president o~ CANYON CLUB, INC., a Wyomin~orpo~a~, on behalf of said
corporation.
Witness my hand and official seal. { Coun~ bi ~ State of
~ Teton ~ Wyoming ....
My commission expires: ~ My Commission Expires May 25, 2007
~~~%~- - - _ ,
ota~ wu~lic
STATE OF WYOMING )
COUNTY OF Zfh~('~__ I ss. c~~
The foregoing inslrument was acknowledged before rne this ..~_.. day of.~[F)0Ct/Y~. ~, by L.
Richard Edgcomb, as the manager of 144 ACRE PAR~t~l~it~ company, on
behalf of said limited liability company.. ~ D ~u~ ~ ~S~ NO~Z:~LiO[
Witness my hand and oficial seal.·
My commissiOn expires' · --z~ - -
~otary ~ublic
MORTGAGE #C0390 (1-4-05)
Page 21 of 25
0.6 ? 4
EXHIBIT A
Parcel 1'
Lot 2 of Snake River Canyon Ranch, The Can:yon Homes, Teton County, Wyoming, according to that plat
recorded in the Office of the Teton County Clerk on January 15, 2002, as Plat No. 1040.
TOGETHER WITH any appurtenant riparian lands.
Parcel 2:
Lots 19, 20, 21, 22, and 23 of Snake River Canyo~ Ranch, The River Homes Teton County, W:yoming,
according to that plat recorded in the Office of the Teton County Clerk on September 18, 2001, as Plat
No. 1030.
TOGETHER WITH any appurtenant riparian lands.
Parcel 3'
Lots 24, 25, 26 and 28 of Snake River Canyon Ranch, The Ranch Homes Teton County, Wyoming,
according to that plat recorded in the Office of the Teton County Clerk on September 18, 2001, as Plat
No. 1031.
TOGETHER WITH any appurtenant riparian lands.
Parcel 4.:
Homestead Entry Survey Number 57 located in Section 33, T39N, R116W, Teton County, Wyoming.
AND
Government Lot 4, Government Lot 5 and SE1/4SE1/4, Section 32, T39N, R116W, Teton County,
Wyoming.
EXCEPTING THEREFROM Snake River Canyon Ranch, The Canyon Homes, Teton County, Wyoming,
according to that plat recorded in the Office of the Teton County Clerk on January 15, 2002, as Plat No.
1040 AND Snake River Canyon Ranch, The River Homes Teton County, Wyoming, according to that plat
recorded in the Office of the Teton County Clerk on September 18, 2001, as Plat No. 1030 AND. Snake
River Canyon Ranch, The Ranch homes, Teton County, Wyoming, according to that plat recorced in the
Office of the Teton County Clerk on September 18, 2001, as Plat No. 1031
TOGETHER WITH any appurtenant riparian lands
Parcel 5'
LEGAL DESCRIPTION
OF
A PARCEL
WITHIN
SECTION 8,
HOMESTEAD ENTRY SURVEY NO. 187
AND HOMESTEAD ENTRY SURVEY NO. 127
T38N, R116W 6m P.M.
TETON COUNTY, WYOMING
A parcel of land located in Section 8, Homestead Entry Survey No. 187, and Homestead Entry Survey
No. ,127, T38N, R116W, 6m P.M. Teton County, Wyoming, more particularly described as follows;
All of Homestead Entry Survey (H.E.S.) No. 187;
Al of Homestead Entry Survey (H.E.S.) No. 127;
SE¼SE¼ and W¼NE¼SE¼ of said Section 8;
Government Lots 2, 3, and 4, and part of Government Lot 1 of said Section 8;
ALL more particularly described as fillows;
MORTGAGE #C0390 (1-4-05)
Page 22 of 25
BEGINNING southeast corner of said Section 8, said point also being Corner 1 of said H.E.S. No.
127, where is found a 2 inch diameter aluminum pipe with a 3-1/4 inch diameter aluminum cap inscribed
"RLS 164" and appropriate details;
THENCE along the east line of said H.E.S. No. 127, S 00°00'15"E, 658.05 feet to Corner 2 of said
H.E.S. where is found a 2 inch diameter galvanized pipe with a 3-1/4 inch diameter brass cap inscribed
"PLS 6447" and appropriate details, said point lying on the north line of said H.E.S. No. 187;
THENCE along the north line of said H.E.S. No. 187, S 89°58'45"E, 321.38 feet to Corner 1 of
said H.E.S. where is found a 2 inch diameter aluminum pipe with a 3-1/4 inch diameter aluminum cap
inscribed "RLS 164" and appropriate details; ....
THENCE along the east line of said H.E.S. No. 187 S 13°30'45"E, 3433.21 feet to Corner 2 of
said H.E.S. where is found an original stone;
THENCE along the south line of said H.E.S. No. 187, S 85°38'25"W, 1340.78 feet to Corner 3 of
said H.E.S. where is found a 2 inch diameter aluminum pipe with a 3-1/4 inch diameter BLM-type
aluminum cap inscribed with appropriate details, said Corner 3 also being a meander corner on the left
bank of the Snake River;
THENCE following the record meander line for said H.E.S. No. 187 through the following courses,
N 24°30'08"W, 880.09 feet;
N 15°09'45"W, 353.76 feet;
N 23°14'45"W, 681.12 feet;
N 16°16'45"W, 1026.96 feet;
N 26°02'45"W, 357.72 feet;
N 00°39'13"E, 365.46 feet more or less to Corner 4 of said H.E.S. No. 187, said point being
identical with Corner 3 of said H.ES. No. 127, said Corner 4 also being a meander corner on the left bank
of the Snake River;
THENCE following the west line of said H.E.S. No. 127, N 22°47'15"W 714.66 feet to Corner 4 of
said H.E.S. where is found a 2 inch diameter aluminum cap with a 3-1/4 inch diameter BLM-type
aluminum cap inscribed with appropriate details, said point lies on the south ine of Government Lot 4 of
said Section 8, N 89°56'01"W 337.24 feet from the southeast corner of said Government Lot 4;
THENCE along the south line of said Government Lot 4 of said Section 8, N
89°57'02"W, 105.51 feet to a 2 inch diameter aluminum cap with a 3-1/4 inch diameter BLM-type
aluminum cap inscribed with appropriate details, said point representing a meander corner on the left
bank of the Snake River;
THENCE continuing N 89°57'02"W 95.70 feet to the record position of said meander corner
established by the original survey shown on that :)lat approved April 2, 1903;
THENCE following the record left bank meander line of the Snake River shown on said plat
the following courses,
N 02°47'47"W 508.20
through
feet;
N 08°17'47"W 171.60 feet;
N 05°17'47"W 310.20 feet;
N 02°32'47"W 244.20 feet;
N 17°17'47"W 264.00 feet;
N 22°47'47"W 316.80 feet;
N 29°02'47"W 316.80 feet;
N 07°12'13"E 69.20 feet;
THENCE departing said record meander line N 80°14'04"E, 30.42 feet to a 5/8 inch diameter
steel rebar with an aluminum cap inscribed "PLS 6447";
THENCE N O0°00'00"E, 232.05 feet more or less to an ntersection with said record meander line;
T.HENCE along said record meander line, N 07°12'13"E, 67.91 feet;
THENCE along said record meander ine, N 15°17'47"W, 32.28 feet;
THENCE departing said record meander line, N 00°00'00"E 79.28 feet to a 5/8 inch diameter
steel rebar with an aluminum cap ~nscribed "PLS 6447";
THENCE N 45°24'32"W, 41.69 feet more or less to an intersection with said record meander line;
THENCE following said record meander line through the following courses,
N 15°17'47"W, 125.79 feet; j t
N 22°17'47"W, 231.00 feet; f
MORTGAGE #C0390 (1-4-05) Page 23 of 25
N 35°32'47"W 72.60 feet;
N 02°57'13"E 356.40 feet;
N 01°02'47"W 231.00 feet;
N 07°17'47"W 349.80 feet;
N 31°02'47"W 323.40 feet;
N 04°02'47"W 131.10 feet;
THENCE de Darting said record meander line, N 75°19'06"E, 409.51 feet to a 5/8 inch diameter
steel rebar with an aluminum cap inscribed "PLS 6447"'
THENCE N 00°26'01"W, 530.96 feet to a 5/8 inch diameter steel rebar with an aluminum cap
inscribed "PLS 6447";
THENCE N 90°00'00"E, 171:02 feet to a 5/8 inch (:iameter steel rebar with an aluminum cap
inscribed "PLS 6447";
THENCE S 38°26'50"E, 1247.72 feet to the northeast 1/16 corner of said Section 8 where is
found a 5/8 inch diameter steel rebar with an aluminum cap inscribed "PLS 6447";
THENCE along the east line of Government Lot 2 of said Section 8, S 00°03'26"E,
1322.01 feet to the center-east 1/16 corner of said Section 8 where is found a 2 inch diameter galvanized
p~pe with a 3-1/4 inch diameter brass cap inscribed "PLS 6447" and appropriate details;
THENCE along the north line of said W1/2NE1/4SE1/4, S 89°43'08"E, 660.65 feet to the center-
east-east 1/64 corner of said Section 8 where is found a 2 inch diameter aluminum p~pe with a 3-1/4 inch
diameter BLM-type aluminum cap inscribed with appropriate details;
THENCE along the east line of said W1/2NE1/4SE1/4 S'00°01'59"E- ,1316.72 feet to the center-
east-southeast 1/64 corner of said Section 8 where is found a 5/8 inch diameter steel rebar with an
aluminum cap inscribed "PLS 6447";
THENCE along the north line of said SE1/4SE1/4, S 89°57'23"E, 660.40 feet to the south 1/16
corner common to said Section 8 and Unsurveyed Section 9, T38N, R116W, 6'~ P.M., where is found a 2
inch diameter aluminum pipe with a 3-1/4 inch diameter BLM-type aluminum cap tnscribed with
appropriate details;
THENCE along the east line of said SE1/4SE1/4 S 00°02'03"E, 1316.62 feet to the POINT OF
BEGINNING;
TOGETHER WITH any appurtenant riparian lands.
.Parcel 6:
A parcel of land located in Sections 21, 28 and 29, Township 38N,
Lincoln County, Wyoming and more particularly described as follows:
HomEstead Entry Survey 185.
TOGETHER WITH any appurtenant riparian lands.
Range 116W, Teton County and
Parcel
Number PIN Number
TETON COUNTY
1 (Lot 2) 22-39-16-32-4-03-001
2 (Lot 19) 22-39-16-32-4-01-001
2 (Lot 20) 22-39-16-32-4-01-002
2 (Lot 21) , 22-39-16-32-4-01-003
2 (Lot22)!! 22-39-16-32-4-01-004
MORTGAGE #C0390 (1-4-05)
Page 24 of 25
2 (Lot 23) 22-39-16-32-4-01.-005
3 (Lot 24) 22-39-16-32-4-02-001
3 (Lot 25) ' 22-39-16-32-4-02-002
3 (Lot 26) 22-39-16-32-4-02-003
3 (Lot 28) 22-39-16-32-4-02-005
4 22-39-16-32-4-00-001
5 22-38-16-08-3-00-001
5 22-38-16-08-1-00-001
6 22-38-16-08-4-00-003
LINCOLN COUNTY
6 I 12-38-16-28-2-00-001
MORTGAGE #C0390 (1-4-05)
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