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HomeMy WebLinkAbout933222 RECORDATION REQUESTED BY: Community Banks of Colorado Community Banks of Colorado - Montrose 330 South 12th Street. Suite B Montrose. CO 81401 RECEIVED 9/18/2007 at 10:41 AM RECEIVING # 933222 BOOK: 672 PAGE: 586 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY 000586 SEND TAX NOTICES TO: Community Banks of Colorado Community Banks of Colorado - Montrose 330 South 12th Street. Suite B Montrose, CO 81401 SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY CONSTRUCTION MORTGAGE THIS MORTGAGE dated September 11. 2007. is made and executed between Double L Ranch #4 LLC. a Wyoming limited liability company (referred to below as "Grantor") and Community Banks of Colorado. whose address is 330 South 12th Street. Suite B. Montrose. CO 81401 (referred to below as "Lender"). GRANT OF MORTGAGE. For valuable consideration. Grantor mortgages and conveys to lender all of Grantor's right, title, and interest in and to the following described real property, together with all existing or subsequently erected or affixed buildings, improvements and fixtures; all easements, rights of way, and appurtenances; all water, water rights, watercourses and ditch rights (including stock in utilities with ditch or irrigation rights); and all other ri9hts, royalties, and profits relating to the real property, including without limitation all minerals, oil, gas, geothermal and similar matters, (the "Real Property") located in Lincoln County. State of Wyoming: LOT TWENTY-TWO (22) OF DOUBLE L RANCH EAST SUBDIVISION. LINCOLN COUNTY. WYOMING. AS SHOWN ON THE OFFICIAL PLAT THEREOF RECORDED MARCH 7. 2007 AT DOCUMENT NUMBER 927425. IN THE OFFICE OF THE CLERK. LINCOLN COUNTY. WYOMING The Real Property or its address is commonly known as Lot 22 of Double L Ranch East Subdivision. Freedom. WY 83120. ' CROSS-COLLATERALlZATION. In addition to the Notè, this Mortgage secures all obligations, debts and liabilities, plus interest thereon, of either Grantor or Borrower to Lender, or anyone or more of them, as well as all claims by Lender against Borrower and Grantor or anyone or more of them, whether now existing or hereafter arising, whether related or unrelated to the purpose of the Note, whether voluntary or otherwise, whether due or not due, direct or indirect, determined or undetermined, absolute or contingent, liquidated or unliquidated, whether Borrower or Grantor may be liable individually or jointly with others, whether obligated as guarantor, surety, accommodation party or otherwise, and whether recovery upon such amounts may be or hereafter may become barred by any statute of limitations, and whether the obligation to repay such amounts may be or hereafter may become otherwise unenforceable. Grantor presently assigns to lender all of Grantor's right, title, and interest in and to all present and future leases of the Property and all Rents from the Property. In addition, Grantor grants to Lender a Uniform Commercial Code security interest in the Personal Property and Rents. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY. IS GIVEN TO SECURE (AI PAYMENT OF THE INDEBTEDNESS AND (B) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THE NOTE. THE RELATED DOCUMENTS. AND THIS MORTGAGE. THIS MORTGAGE. INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY. IS ALSO GIVEN TO SECURE ANY AND ALL OF BORROWER'S OBLIGATIONS UNDER THAT CERTAIN CONSTRUCTION LOAN AGREEMENT BETWEEN BORROWER AND lENDER OF EVEN DATE HEREWITH. ANY EVENT OF DEFAULT UNDER THE CONSTRUCTION lOAN AGREEMENT. OR ANY OF THE RELATED DOCUMENTS REFERRED TO THEREIN. SHALL ALSO BE AN EVENT OF DEFAULT UNDER THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: GRANTOR'S WAIVERS. Grantor waives all rights or defenses arising by reason of any "one action" or "anti-deficiency" law, or any other law which may prevent lender from bringing any action against Grantor, including a claim for deficiency to the extent Lender is otherwise entitled to a claim for deficiency, before or after lender's commencement or completion of any foreclosure action, either jUdicially or by exercise of a power of sale. GRANTOR'S REPRESENTATIONS AND WARRANTIES. Grantor warrants that: (a) this Mortgage is executed at Borrower's request and not at the request of lender; (b) Grantor has the full power, right, and authority to enter into this Mortgage and to hypothecate the Property; (c) the provisions of this Mortgage do not conflict with, or result in a default under any agreement or other instrument binding upon Grantor and do not result in a violation of any law, regulation, court decree or order applicable to Grantor; (d) Grantor has established adequate means of obtaining from Borrower on a continuing basis information about Borrower's financial condition; and (e) Lender has made no representation to Grantor about Borrower (including without limitation the creditworthiness of Borrower). PA YMENT AND PERFORMANCE. Except as otherwise provided in this Mortgage, Borrower and Grantor shall pay to Lender all Indebtedness secured by this Mortgage as it becomes due, and Borrower and Grantor shall strictly perform all Borrower's and Grantor's obligations under this Mortgage. CONSTRUCTION MORTGAGE. This Mortgage is a "construction mortgage" for the purposes of Sections 9-334 and 2A-309 of the Uniform Commercial Code, as those sections have been adopted by the State of Wyoming. POSSESSION AND MAINTENANCE OF THE PROPERTY. Borrower and Grantor agree that Borrower's and Grantor's possession and use of the Property shall be governed by the following provisions: Loan No: 2652603 Mvn I uAGE (Continued) 000587 Page 2 Possession and Use. Until the occurrence of an Event of Default, Grantor may (1) remain in possession and control of the Property; (2) use, operate or manage the Property; and (3) collect the Rents from the Property, Duty to Maintain. Grantor shall maintain the Property in tenantable condition and promptly perform all repairs, replacements, and maintenance necessary to preserve its value. Compliance With Environmental Laws. Grantor represents and warrants to Lender that: (1) During the period of Grantor's ownership of the Property, there has been no use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance by any person on, under, about or from the Property; (2) Grantor has no knowledge of, or reason to believe that there has been, except as previously disclosed to and acknowledged by Lender in writing, (a) any breach or violation .of any Environmental Laws, (b) any use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the Property by any prior owners or occupants of the Property, or (c) any actual or threaten,ed litigation or claims of any kind by any person relating to such matters; and (3) Except as previously disclosed to and acknowledged by Lender in writing, (a) neither Grantor nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from the Property; and (b) any such activity shall be conducted in compliance with all applicable federal, state, and local laws, regulations and ordinances, including without limitation all Environmental Laws. Grantor authorizes Lender and its agents to enter upon the Property to make such inspections and tests, at Grantor's expense, as Lender may deem appropriate to determine compliance of the Property with this section of the Mortgage. Any inspections or tests made by Lender shall be for Lender's purposes only and shall not be construed to create any responsibility or liability on the part of Lender to Grantor or to any other person. The representations and warranties contained herein are based on Grantor's due diligence in investigating the Property for Hazardous Substances. Grantor hereby (1) releases and waives any future claims against Lender for indemnity or contribution in the event Grantor becomes liable for cleanup or other costs under any such laws; and (2) agrees to indemnify, defend, and hold harmless Lender against any and all claims, losses, liabilities, damages, penalties, and expenses which Lender may di~ectly or indirectly sustain or suffer resulting from a breach of this section of the Mortgage or as a consequence of any use, generation, m~nufacture, storage, disposal, release or threatened release occurring prior to Grantor's ownership or interest in the Property, whether or not the same was or should have been known to Grantor. The provisions of this section of the Mortgage, including the obligation to indemnify and defend, shall survive the payment of the Indebtedness and the satisfaction and reconveyance of the lien of this Mortgage and shall, not be affected by Lender's acquisition of any interest in the Property, whether by foreclosure or otherwise. Nuisance, Waste. Grantor shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any stripping of or waste on or to the Property or any portion of the Property. Without limiting the generality of the foregoing, Grantor will not rE¡!move, or grant to any other party the right to remove, any timber, minerals (including oil and gas), coal, clay, scoria, soil, gravel or rock pro,ducts without Lender's prior written consent. ¡ Removal of Improvements. Grantor shall not demolish or remove any Improvements from the Real Property Jithout Lender's prior written consent. As a condition to the removal of any Improvements, Lender may require Grantor to make arrangemerts satisfactory to Lender to replace such Improvements with Improvements of at least equal value. I Lender's Right to Enter. Lender and Lender's agents and representatives may enter upon the Real Property at a I reasonable times to attend to Lender's interests and to inspect the Real Property for purposes of Grantor's compliance with the terms and conditions of this Mortgage. Compliance with Governmental Requirements. Grantor shall promptly comply with all laws, ordinances, and r~gUlations, now or hereafter in effect, of all governmental authorities applicable to the use or occupancy of the Property, including witho t limitation, the America,ns With Disabilities Act. Grantor may contest in good faith any such law, ordinance, or regulation and with old compliance during any proceeding, including appropriate appeals, so long as Grantor has notified Lender in writing prior to doing so and so long as, in Lender's sole opinion, Lender's interests in the Property are not jeopardized. Lender may require Grantor to po st adeqUa~ e security or a surety bond, reasonably satisfactory to Lender, to'protect Lender's interest. Duty to Protect. Grantor agrees neither to abandon or leave unattended the Property. Grantor shall do all ot er acts, in addition to those acts set forth above in this section, which from the character and use of the Property are reasonably necessar to protect and preserve the Property. CONSTRUCTION LOAN. If some or all of the proceeds of the loan creating the Indebtedness are to be use to construct or complete construction of any Improvements on the Property, the Improvements shall be completed no later than the maturi y date of the Note (or such earlier date as Lender may reasonably establish) and Grantor shall pay in full all costs and expenses in connection with the work. Lender will disburse loan proceeds under such terms and conditions as Lender may deem reasonably necessary to insure that the interest created by this Mortgage shall have priority over all possible liens, including those of material suppliers and workmen. Lender may lequire, among other things, that disbursement requests be supported by receipted bills, expense affidavits, waivers of liens, construction progfSS reports, and such other documentation as Lender may reasonably request. DUE ON SALE - CONSENT BY LENDER. Lender may, at Lender's option, declare immediately due and payabl all sums secured by this Mortgage upon the sale or transfer, without Lender's prior written consent, of all or any part of the Real Property or any interest in the Real Property. A "sale or transfer" means the conveyance of Real Property or any right, title or interest in the Real Prope I y; whether legal, beneficial or equitable; whether voluntary or involuntary; whether by outright sale, deed, installment sale contract, land C~ntract, contract for deed, leasehold interest with a term greater than three (3) years, lease-option contract, or by sale, assignment, or transfer of any beneficial interest in or to any land trust holding title to the Real Property, or by any other method of conveyance of an interest in the Rea Property. If any Grantor is a corporation, partnership or limited liability company, transfer also includes any change in ownership of more than t enty-five percent (25%) of the voting stock, partnership interests or limited liability company interests, as the case may be, of such Grantor. H wever, this option shall not be exercised by Lender if such exercise is prohibited by federal law or by Wyoming law. TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property are part of this Moi'tgag : Payment. Grantor shall pay when due (and in all events prior to delinquency) all taxes, payroll taxes, special taxes, assessments, water charges and sewer service charges levied against or on account of the Property, and shall pay when due all cia ms for work done on or for services rendered or material furnished to the Property. Grantor shall maintain the Property free of any liens ha ing priority over or equal to the interest of Lender under this Mortgage, except for those liens specifically agreed to in writing by Lender, an except for the lien of taxes and assessments not due as further specified in the Right to Contest paragraph. Right to Contest. Grantor may withhold payment of any tax, assessment, or claim in connection with a ood faith dispute over the obligation to pay, so long as Lender's interest in the Property is not jeopardized. If a lien arises or is filed s a result of nonpayment, Loan No: 2652603 ''',un, UI"\UI;; (Continued) uv.;:)oo Page 3 Grantor shall within fifteen (15) days after the lien arises or, if a lien is filed, within fifteen (15) days after rantor has notice of the filing, secure the discharge of the lien, or if requested by Lender, deposit with Lender cash or a sufficient corporat surety bond or other security satisfactory to Lender in an amount sufficient to discharge the lien plus any costs and attorneys' fees, or 0 her charges that could accrue as a result of a foreclosure or sale under the lien. In any contest, Grantor shall defend itself and Lende and shall satisfy any adverse judgment before enforcement against the Property. Grantor shall name Lender as an additional obfigee und r any surety bond furnished in the contest proceedings. Evidence of Payment. Grantor shall upon demand furnish to Lender satisfactory evidence of payment of the axes or assessments and shall authorize the appropriate governmental official to deliver to Lender at any time a written statement of the xes and assessments against th,e Property. Notice of Construction. Grantor shall notify Lender at least fifteen (15) days before any work is commenced any services are furnished, or any materials are supplied to the Property, if any mechanic's lien, materialmen's lien, or other lien could e asserted on account of the work, services, or materials. Grantor will upon request of Lender furnish to Lender advance assurances sati factory to Lender that Grantor can and will pay the cost of such improvements. PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the Property are a part of this Mo tgage: Maintenance of Insurance. Grantor shall procure and maintain policies of fire insurance with standard exten ed coverage endorsements on a replacement basis for the full insurable value covering all Improvements on the Real Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of Lender. Grantor sha I also procure and maintain comprehensive general liability insurance in such coverage amounts as Lender may request with Lender bein named as additional insureds in such liability insurance policies. Additionally, Grantor shall maintain such other insurance, including but ot limited to hazard, business interruption and boiler insurance as Lender may require. Policies shall be written by such insurance compani s and in such form as may be reasonably acceptable to Lender. Grantor shall deliver to Lender certificates of coverage from each insure containing a stipulation that coverage will not be cancelled or diminished without a minimum of thirty (30) days' prior written notice to ender and not containing any disclaimer of the insurer's liability for failure to give such notice. Each insurance policy also shall include a endorsement providing that coverage in favor of Lender will not be impaired in any way by any act, omission or default of Grantor or any ther person. Should the Real Property be located in an area designated by the Director of the Federal Emergency Management Agency a a special flood hazard area, Grantor' agrees to obtain and maintain Federal Flood Insurance, if available, within 45 days after notice is giv n by Lender that the Property is located in a special flood hazard area, for the full unpaid principal balance of the loan and any prior liens on the property securing the loan, up to the maximum policy limits set under the National Flood Insurance Program, or as otherwise requir d by Lender, and to maintain such insurance for the term of the loan, Application of Proceeds. Grantor shall promptly notify Lender of any loss or damage to the Property. Len er may make proof of loss if Grantor fails to do so within fifteen (15) days of the casualty. Whether or not Lender's security is impai ed, Lender may, at Lender's election, receive and retain the proceeds of any insurance and apply the proceeds to the reduction of the Inde tedness, payment of any lien affecting the Property, or the restoration and repair of the Property. If Lender elects to apply the proceeds to storation and repair, Grantor shall repair or replace the damaged or destroyed Improvements in a manner satisfactory to Lender. Lender sh II, upon satisfactory proof of such expenditure, payor reimburse Grantor from the proceeds for the reasonable cost of repair or restorati n if Grantor is not in default under this Mortgage. Any proceeds which have not been disbursed within 180 days after their receip 'and which Lender has not committed to the repair or restoration of the Property shall be used first to pay any amount owing to Lender under this Mortgage, then to pay accrued interest, and the remainder, if any, shall be applied to the principal balance of the Indebtedness. If Lender holds any proceeds after payment in full of the Indebtedness, such proceeds shall be paid to Grantor as Grantor's interests may ap ear. Grantor's Report on Insurance. Upon request of Lender, however not more than once a year, Grantor shall urnish to Lender a report on each existing policy of insurance showing: (1) the name of the insurer; (2) the risks insured; (3) the a ount of the policy; (4) the property insured, the then current replacement value of such property, and the manner of determining that v lue; and (5) the expiration date of the policy. Grantor shall, upon request of Lender, have an independent appraiser satisfactory to Len er determine the cash value re'placement cost of the Property. LENDER'S EXPENDITURES. If any action or proceeding is commenced that would materially affect Lender's interes ¡in the Property or if Grantor fails to comply with any provision of this Mortgage or any Related Documents, including but not limited to Grantor 5 failure to discharge or pay when due any amounts Grantor is required to discharge or pay under this Mortgage or any Related Documents, Le çler on Grantor's behalf may (but shall not be obligated to) take any action that Lender deems appropriate, including but not limited to discharg ng or paying all taxes, liens, security interests, encumbrances and other claims, at any time levied or placed on the Property and paying all costs for insuring, maintaining and preserving the Property. All such expenditures incurred or paid by Lender for such purposes will then bear interest t the rate charged under the Note from the date incurred or paid by Lender to the date of repayment by Grantor. All such expenses will becom a part of the Indebtedness and, at Lender's option, will (A) be payable on demand; (B) be added to the balance of the Note and be apport oned among and be payable with any installment payments to become due during either (1) the term of any applicable insurance policy; or ( ) the remaining term of the Note; or (C) be treated as a balloon payment which will be due and payable at the Note's maturity, The Mortgag ¡ also will secure payment of these amounts. Such right shall be in addition to all other rights and remedies to which Lender may be entitled upo ,Default. WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the Property are a part of this Title. Grantor warrants that: (a) Grantor holds good and marketable title of record to the Property in fee sim ie, free and clear of all liens and encumbrances other than those set forth in the Real Property description or in any title insurance policy, titl . report, or final title opinion issued in favor of, and accepted by, Lender in connection with this Mortgage, and (b) Grantor has the full ri /1t, power, and authority to execute and deliver this Mortgage to Lender. : Defense of Title. Subject to the exception in the paragraph above, Grantor warrants and will forever defend the ~itle to the Property against the lawful claims of all persons. In the event any action or proceeding is commenced that questions Grantor's itle or the interest of Lender under this Mortgage, Grantor shall defend the action at Grantor's expense. Grantor may be the nominal pa ty in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel 0: Lender's own choice, and Grantor will deliver, or cause to be delivered, to Lender such instruments as Lender may request from ti ' e to time to permit such participation, ¡ Compliance With Laws. Grantor warrants that the Property and Grantor's use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities. . Loan No: 2652603 MCJn I u,",GE (Continued) Page 4 Survival of Representations and Warranties. All representations. warranties, and agreements made by Gr ntor in this Mortgage shall survive the execution and delivery of this Mortgage, shall be continuing in nature, and shall remain in full force . nd effect until such time as Borrower's Indebtedness shall be paid in full. CONDEMNATION. The following provisions relating to condemnation proceedings are a part of this Mortgage: Proceedings. If any proceeding in condemnation is filed, Grantor shall promptly notify Lender in writing, and Grantor shall promptly take such steps as may be necessary to defend the action and obtain the award. Grantor may be the nominal p rty in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of i,ts own choice, and Grantor will deliver or cause to be delivered to Lender such instruments and documentation as may be requested by 'ender from time to time to p,ermit such participation. Application of Net Proceeds. If all or any part of the Property is condemned by eminent domain proceed in purchase in lieu of condemnation, Lender may at its election require that all or any portion of the net proceed the Indebtedness or the repair or restoration of the Property. The net proceeds of the award shall mean th reasonable costs, expenses, and attorneys' fees incurred by Lender in connection with the condemnation. s or by any proceeding or of the award be applied to award after payment of all I IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions rei ting to governmental taxes, fees and charges are a part of this Mortgage: ¡ Current Taxes, Fees and Charges. Upon request by Lender, Grantor shall execute such documents in additio . to this Mortgage and take whatever other action is requested by Lender to perfect and continue Lender's lien on the Real Property. Grant r shall reimburse Lender for all taxes, as described below, together with all expenses incurred in recording, perfecting or continuing this . ortgage, including without limitation all taxes, fees, documentary stamps, and other charges for recording or registering this Mortgage, i Taxes. The following shall constitute taxes to which this section applies: (1) a specific tax upon this type of Mortgage or upon all or any part of the Indebtedness secured by this Mortgage; (2) a specific tax on Borrower which Borrower is auth :rized or required to deduct from payments on the Indebtedness secured by this type of Mortgage; (3) a tax on this type of Mortgage cha : eable against the Lender or the holder of the Note; and (4) a specific tax on all or any portion of the Indebtedness or on payments of pr ~cipal and interest made by &~~~ i I Subsequent Taxes. If any tax to which this section applies is enacted subsequent to the date of this Mortga ;e, this event shall have the same effect as an Event of Default, and Lender may exercise any or all of its available remedies for an Event t Default as provided below unless Grantor either (1) pays the tax before it becomes delinquent, or (2) contests the tax as provided a bve in the Taxes and Liens section and deposits with Lender cash or a sufficient corporate surety bond or other security satisfactory to Len er. I SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to this Mortgage as a secu ¡ty agreement are a part of this Mortgage: I Security Agreement. This instrument shall constitute a Security Agreement to the extent any of the Prope ty constitutes fixtures, and Lender shall have all of the rights of a secured party under the Uniform Commercial Code as amended from time ~o time. Security Interest. Upon request by Lender, Grantor shall take whatever action is requested by Lender to pe tect and continue Lender's security interest in the Rents and Personal Property. In addition to recording this Mortgage in the real property ecords, Lender may, at any time and without further authorization from Grantor, file executed counterparts, copies or reproductions of t Is Mortgage as a financing statement. Grantor shall reimburse Lender for all expenses incurred in perfecting or continuing this security int fest. Upon default,Grantor shall not remove, sever or detach the Personal Property from the Property. Upon default, Grantor shall assembl : any Personal Property not affixed to the Property in a manner and at a place reasonably convenient to Grantor and Lender and make it available to Lender within three (3) days after receipt of written demand from Lender to the extent permitted by applicable law. I Addresses. The mailing addresses of Grantor (debtor) and Lender (secured party) from which information con erning the security interest granted by this Mortgage may be obtained (each as required by the Uniform Commercial Code) are as stat CI on the first page of this Mortgage. I FURTHER ASSURANCES; ATTORNEY-iN-FACT. The following provisions relating to further assurances and attorn IY-in-fact are a part of this Mortgage: ! Further Assurances. At any time, and from time to time, upon request of Lender, Grantor will make, execute hd deliver, or will cause to be made, executed or delivered, to Lender or to Lender's designee, and when requested by Lender, cause to b filed, recorded, refiled, or rerecorded, as the case may be, at such times and in such offices and places as Lender may deem appropriate, y and all such mortgages, deeds of trust, security deeds, security agreements, financing statements, continuation statements, instru ~nts of further assurance, certificates, and other documents as may, in the sole opinion of Lender, be necessary or desirable in order to ef Ictuate, complete, perfect, continue, or preserve (1) Borrower's and Grantor's obligations under the Note, this Mortgage, and the Relate Documents, and (2) the liens and security interests created by this Mortgage as first and prior liens on the Property, whether now ow d or hereafter acquired by Grantor. Unless prohibited by law or Lender agrees to the contrary in writing, Grantor shall reimburse Lender for all costs and expenses incurred in connection with the matters referred to in this paragraph. Attorney-in-Fact. If Grantor fails to do any of the things referred to in the preceding paragraph, Lender may d Grantor and at Grantor's expense. For such purposes, Grantor hereby irrevocably appoints Lender as Grant purpose of making, executing, delivering, filing, recording, and doing all other things as may be necessary or opinion, to accomplish the matters referred to in the preceding paragraph. FULL PERFORMANCE. If Borrower and Grantor pay all the Indebtedness when due, and Grantor otherwise performs II the obligations imposed upon Grantor under this Mortgage, Lender shall execute and deliver to Grantor a suitable satisfaction of this Mortga e and suitable statements of termination of any financing statement on file evidencing Lender's security interest in the Rents and the Personal roperty. Grantor will pay, if permitted by applicable law, any reasonable termination fee as determined by Lender from time to time. EVENTS OF DEFAULT. Each of the following, at Lender's option, shall constitute an Event of Default under this Mort age: Payment Default. Borrower fails to make any payment when due under the Indebtedness. Default on Other Payments. Failure of Grantor within the time required by this Mortgage to make any paymen [for taxes or insurance, or any other payment necessary to prevent filing of or to effect discharge of any lien. I I so for and in the name of 's attorney-in-fact for the esirable, in Lender's sole Loan No: 2652603 ..."... .-..,.,~... (Continued) 00590 I Page 5 Other Defaults. Borrower or Grantor fails to comply with or to perform any other term, obligation, covena ~ or condition contained in this Mortgage or in any of the Related Documents or to comply with or to perform any term, obligation, covena t or condition contained in any other agreement between Lender and Borrower or Grantor. J Default in Favor of Third Parties. Should Borrower or any Grantor default under any loan, extension of credi security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially a Ifect any of Borrower's or any Grantor's property or Borrower's ability to repay the Indebtedness or Borrower's or Grantor's ability to perf rm their respective obligations under this Mortgage or any related document. False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower Grantor or on Borrower's or Grantor's behalf under this Mortgage or the Related Documents is false or misleading in any material resp ct, either now or at the time made or furnished or becomes false or misleading at any time thereafter, l Defective Collateralization. This Mortgage or any of the Related DOjuments ceases to be in full force and ffect (including failure of any collateral document to create a valid and perfected security interest 0 lien) at any time and for any reason. Death or Insolvency. The dissolution or termination of the Trust, the insolvency of Borrower or Grantor, th appointment of a receiver for any part of Borrower's or Grantor's property, any assignment f r the benefit of creditors, any type of creditor workout. or the commencement of any proceeding under any bankruptcy or insolvenc.{ laws by or against Borrower or Granto . Creditor or Forfeiture Proceedings. Commencement of foreclosure lor forfeiture proceedings, whether by Ijudicial proceeding, self-help, repossession or any other method, by any creditor of Borrower or Grattor or by any governmental agency ag 'nst any property securing the Indebtedness. This includes a garnishment of any of Borrower's or G antor's accounts, including deposit acc unts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Borrower or Grantor as to the validity :r reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borro ber or Grantor gives Lender written not ce of the creditor or forfeiture pr:Jceeding and deposits with Lender monies or a surety bond for the, reditor or forfeiture proceeding, in an Irount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute. Breach of Other Agreement. Any breach by Borrower or Grantor undel the terms of any other agreement bet een Borrower or Grantor and Lender that is not remedied within any grace period provided thbrein, including without limitation an agreement concerning any indebtedness or other obligation of Borrower or Grantor to Lender, whether existing now or later. Events Affecting Guarantor. Any of the preceding events occurs with respect to any guarantor, endorser, s ¡ety, or accommodation party of any of the Indebtedness or any guarantor, endorser, surety, or accommodation party dies or become incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness. In the event of a death, Lende at its option, may, but shall not be required to, permit the guarantor's estate to assume unconditionally the obligations arising und the guaranty in a manner satisfactory to Lender, and, in doing so, cure any Event of Default. I Adverse Change. A material adverse change occurs in Grantor's financial condition, or Lender believes the prospect of payment or performance of the Indebtedness is impaired. I Right to Cure. If any default, other than a default in payment is curable and if Grantor has not been given a n tice of a breach of the same provision of this Mortgage within the preceding twelve (12) months, it may be cured if Grantor, after receivi 9 written notice from Lender demanding cure of such default: (1) cures the default within thirty (30) days; or (2) if the cure require Imore than thirty (30) days, immediately initiates steps which Lender deems in Lender's sole discretion to be sufficient to cure the default and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical i i RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default and at any time thereafter, Le Cler, at Lender's option, may exercise anyone or more of the fOllowing rights and remedies, in addition to any other rights or remedies provided y law: Accelerate Indebtedness. Lender shall have the right at its option without notice to Borrower or Grantor to de ~Iare the entire Indebtedness immediately due and payable, including any prepayment penalty that Borrower would be required to pay. I UCC Remedies. With respect to all or any part of the Personal Property, Lender shall have all the rights and remedies of a secured party under the Uniform Commercial Code. i Collect Rents. Lender shall have the right, without notice to Borrower or Grantor, to take possession of the P þperty, including during the pendency of foreclosure, whether judicial or non-judicial, and collect the Rents, including amounts past due a ø unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness. In furtherance of this right, Lender may [require any tenant or other user of the Property to make payments of rent or use fees directly to Lender. If the Rents are collected by Lener, then Grantor irrevocably designates Lender as Grantor's attorney-in-fact to endorse instruments received in payment thereof in the nam lof Grantor and to negotiate the same and collect the proceeds, Payments by tenants or other users to Lender in response to Lender s demand shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the demand existed. Le ,der may exercise its rights under this subparagraph either in person, by agent, or through a receiver. I Appoint Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any p rt of the Property, with the power to protect and preserve the Property, to operate the Property preceding foreclosure or sale, and to :collect the Rents from the Property and apply the proceeds, over and above the cost of the receivership, against the Indebtedness. The receiver may serve without bond if permitted by law. Lender's right to the appointment of a receiver shall exist whether or not the ap arent value of the Property exceeds the Indebtedness by a substantial amount. Employment by Lender shall not disqualify a person from se ring as a receiver. Judicial Foreclosure. Lender may obtain a judicial decree foreclosing Grantor's interest in all or any part of the P bperty. I Nonjudicial Sale. Lender may foreclose Grantor's interest in all or in any part of the Property by non-judicial sale land specifically by "power of sale" or "advertisement and sale" foreclosure as provided by statute. ¡ Deficiency Judgment. If permitted by applicable law, Lender may obtain a judgment for any deficiency remaini ,g in the Indebtedness due to Lender after application of all amounts received from the exercise of the rights provided in this section. I Tenancy at Sufferance. If Grantor remains in possession of the Property after the Property is sold as provided flbove or Lender otherwise becomes entitled to possession of the Property upon default of Borrower or Grantor, Grantor shall become a ten 'nt at sufferance of Lender or the purchaser of the Property and shall, at Lender's option, either (1) pay a reasonable rental for the use of /;1e Property, or (2) vacate the Property immediately upon the demand of Lender, i Loan No: 2652603 Me", I u,.\GE (Continued) Page 6 Other Remedies. Lender shall have all other rights and remedies provided in this Mortgage or the Note or availa 'Ie at law or in equity. Sale of the Property. To the extent permitted by applicable law, Borrower and Grantor hereby waive any and II right to have the Property marshalled. In exercising its rights and remedies, Lender shall be free to sell all or any part of the Property t gether or separately, in one sale or by separate sales. Lender shall be entitled to bid at any public sale on all or any portion of the Property. I Notice of Sale. Lender shall give Grantor reasonable notice of the time and place of any public sale of the Per pnal Property or of the time after which any private sale or other intended disposition of the Personal Property is to be made. Reasona Ie notice shall mean notice given at least ten (10) days before the time of the sale or disposition. Any sale of the Personal Property may e made In conjunction with any sale of the Real Property. i Election of Remedies. Election by Lender to pursue any remedy shall not exclude pursuit of any other reme 1;, and an election to make expenditures or to take action to perform an obligation of Grantor under this Mortgage, after Grantor's failure ~o perform, shall not affect Lender's right to declare a default and exercise its remedies. Nothing under this Mortgage or otherwise shall b: construed so as to limit or restrict the rights and remedies available to Lender following an Event of Default, or in any way to limit or res rlct the rights and ability of Lender to proceed directly agai-nst Grantor and/or Borrower and/or against any other co-maker, guarantor, s. rety or endorser and/or to proceed against any other collateral directly or indirectly securing the Indebtedness, Attorneys' Fees; Expenses. If Lender institutes any suit or action to enforce any of the terms of this Mortgag ¡ Lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys' fees at trial and upon any appeal. Wheth 'r or not any court action is involved, and to the extent not prohibited by law, all reasonable expenses Lender incurs that in Lender's opini ~ are necessary at any time for the protection of its interest or the enforcement of its rights shall become a part of the Indebtedness payab e on demand and shall bear interest at the Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph :include, without limitation, however subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses whet ,er or not there is a lawsuit, Including attorneys' fees and expenses for bankruptcy proceedings (including efforts to modify or vacate any a tomatic stay or injunction), appeals, and any anticipated post-judgment collection services, the cost of searching records, obtaining title r ports (including foreclosure reports), surveyors' reports, and appraisal fees and title insurance, to the extent permitted by applicable law! Grantor also will pay any court costs, in addition to all other sums provided by law. ! NOTICES. Any notice required to be given under this Mortgage, including without limitation any notice of default an : any notice of sale shall be given in writing, and shall be effective when actually delivered, when actually received by telefacsimile (unless other' Ise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited In the United States mail! as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Mortgage. All copies 0 ¡notices of foreclosure from the holder of any lien which has priority over this Mortgage shall be sent to Lender's address, as shown near the :eginning of this Mortgage. Any party may change Its address for notices under this Mortgage by giving formal written notice to the other : arties, specifying that the purpose of the notice is to change the party's address. For notice purposes, Grantor agrees to keep Lender infor ed at all times of Grantor's current address. Unless otherwise provided or required by law, if there is more than one Grantor, any notice given 'y Lender to any Grantor is deemed to be notice given to all Grantors. I MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Mortgage: I Amendments. This Mortgage, together with any Related Documents, constitutes the entire understanding and greement of the parties as to the matters set forth in this Mortgage. No alteration of or amendment to this Mortgage shall be effective nless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. I I Annual Reports. If the Property is used for purposes other than Grantor's residence, Grantor shall furnish b Lender, upon request, a certified statement of net operating income received from the Property during Grantor's previous fiscal year ih such form and detail as Lender shall require. "Net operating income" shall mean all cash receipts from the Property less all cash expen itures made in connection with the operation of the Property. ; I Caption Headings. Caption headings in this Mortgage are for convenience purposes only and are not to be use to interpret or define the provisions of this Mortgage. I Governing Law. With respect to procedural matters related to the perfection and enforcement of Lender's right against the Property, this Mortgage will be governed by federal law applicable to Lender and to the extent not preempted by federal la I, the laws of the State of Wyoming. In all other respects, this Mortgage will be governed by federal law applicable to Lender and', to th, extent not preempted by federal law, the laws of the State of Colorado without regard to its conflicts of law provisions. However, if th 'e ever is a question about whether any provision of this Mortgage is valid or enforceable, the provision that is questioned will be gover ed by whichever state or federal law would find the provision to be valid and enforceable. The loan transaction that is evidenced by the ote and this Mortgage has been applied for, considered, approved and made, and all necessary loan documents have been accepted 'y lender in the State of Colorado. Joint and Several Liability. All obligations of Borrower and Grantor under this Mortgage shall be joint and se eral, and all references to Grantor shall mean each and every Grantor, and all references to Borrower shall mean each and every Borro èr. This means that each Grantor signing below is responsible for all obligations in this Mortgage. Where anyone or more of the parties is a corporation, partnership, limited liability company or similar entity, it is not necessary for Lender to inquire into the powers of any of the 0 ticers, directors, partners, members, or other agents acting or purporting to act on the entity's behalf, and any obligations made or cr :ated in reliance upon the professed exercise of such powers shall be guaranteed under this Mortgage. II No Waiver by lender. Lender shall not be deemed to have waived any rights under this Mortgage unless suc waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a aiver of such right or any other right. A waiver by Lender of a provision of this Mortgage shall not prejudice or constitute a waiver of þnder's right otherwise to demand strict compliance with that provision or any other provision of this Mortgage. No prior waiver by Lender Inor any course of dealing between Lender and Grantor, shall constitute a waiver of any of Lender's rights or of any of Grantor's ob Igatlons as to any future transactions. Whenever the consent of Lender is required under this Mortgage, the granting of such consent by Lender in any Instance shall not constitute continuing consent to subsequent instances where such consent is required and in all ca 'es such consent may be granted or withheld in the sole discretion of Lender. ¡ Severability. If a court of competent jurisdiction finds any provision of this Mortgage to be illegal, invalid, 0 unenforceable as to any circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other, ircumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offen Tg provision cannot be so I I Loan No: 2652603 (Continued) ~0059Z Page 7 1.1....... . . ......,....,......... modified, it shall be considered deleted from this Mortgage. Unless otherwise required by law, the illegalit of any provision of this Mortgage shall not affect the legality, validity or enforceability of any other provision Merger. There shall be no merger of the interest or estate created by this Mortgage with any other interest time held by or for the benefit of Lender in any capacity, without the written consent of Lender. Successors and Assigns. Subject to any limitations stated in this Mortgage on transfer of Grantor's interest, this Mortgage shall be binding upon and inure to the benefit of the parties, their successors and assigns. If ownership of the Property bec ,mes vested in a person other than Grantor, Lender, without notice to Grantor, may deal with Grantor's successors with reference to this ortgage and the Indebtedness by way of forbearance or extension without releasing Grantor from the obligations of this Mortgage or liabilit under the Indebtedness. Time is of the Essence. Time is of the essence in the performance of this Mortgage. Waiver of Homestead Exemption. Grantor hereby releases and waives all rights and benefits of the homeste of Wyoming as to all Indebtedness secured by this Mortgage. DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States used in the singular shall include the plural, and the plural shall include the singular, as the context may require. defined in this Mortgage shall have the meanings attributed to such terms in the Uniform Commercial Code: Borrower. The word "Borrower" means Double L Ranch #2 LLC, Lance Mortensen, Lori Mortensen and Resource Trust and includes all co-signers and co-makers signing the Note and all their successors and assig Default. The word "Default" means the Default set forth in this Mortgage in the section titled "Default". Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statute, regulations and ordinances relating to the protection of human health or the environment, including without limitation the Comprehen ive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA "J, the ISuperfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA "I, the Hazardous Materials Transportation Act, 49 .S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable st e or federal laws, rules, or regulations adopted pursuant thereto. Event of Default. The words "Event of Default" mean any of the events of default set forth in this Mort age in the events of default section of this Mortgage. Grantor. The word "Grantor" means Double L Ranch #4 LLC. invalidity, or unenforceability f this Mortgage. Ir estate in the Property at any r exemption laws of the State ortgage. Unless specifically f America. Words and terms i ords and terms not otherwise 2000 Mortensen Family Guaranty. The word "Guaranty" means the guaranty from guarantor, endorser, surety, or accommodati r party to Lender, including without limitation a guaranty of all or part of the Note. Hazardous Substances. The words "Hazardous Substances" mean materials that, because of their quanti y, concentration or physical, chemical or infectious characteristics, may cause or pose a present or potential hazard to human heal h or the environment when improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handl d. The words "Hazardous Substances" are used in their very broadest sense and include without limitation any and all hazardous or xic substances, materials or waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances" also includes, without limitation, petroleum and petroleum by-products or any fraction thereof and asbestos. Improvements. The word "Improvements" means all existing and future improvements, buildings, structures, mobile homes affixed on the Real Property, facilities, additions, replacements and other construction on the Real Property. Indebtedness. The word "Indebtedne ls" means all principal, interest, and other amounts, costs and expens s payable under the Note or Related Documents, together with all renewals of, extensions of, modifications of, consolidations of and ubstitutions for the Note or Related Documents and any amounts expended or advanced by Lender to discharge Grantor's obligations or ex enses incurred by Lender to enforce Grantor's obligations under this Mortgage, together with interest on such amounts as provided in this Mortgage. Specifically, without limitation, Indebtedness includes all amounts that may be indirectly secured by the Cross-Colla eralization provision of this Mortgage. Lender. The word "Lender" means Community Banks of Colorado, its successors and assigns. Mortgage. The word "Mortgage" means this Mortgage between Grantor and Lender. Note. The word "Note" means the promissory note dated September 11, 2007, in the origin I principal amount of $2,551,000.00 from Borrower to Lender, together with all renewals of, extensions of, modifications of, r financings of, consolidations of, and substitutions for the promissory note or agreement, NOTICE TO GRANTOR: THE NOTE CONTAINS A ARIABLE INTEREST RATE. Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of person I property now or hereafter owned by Grantor, and now or hereafter attached or affixed to the Real Property; together with all accession , parts, and additions to, all replacements of, and all substitutions for, any of such property; and together with all proceeds (including wi hout limitation all insurance proceeds and refunds of premiums) from any sale or other disposition of the Property. Property. The word "Property" means collectively the Real Property and the Personal Property. Real Property. The words "Real Property" mean the real property, interests and rights, as further described in t is Mortgage. Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgage , and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. Rents. The word "Rents" means all present and future rents, revenues, income, issues, royalties, profits, and other benefits derived from the Property. Loan No: 2652603 MUM I uAGE (Continued) 000593 Page 8 VING EAD ALL THE PROVISIONS OF THIS MORTGAGE. AND GRANTOR AGREE TO ITS TERMS. LIMITED LIABILITY COMPANY ACKNOWLEDGMENT STATE OF L) ~()~'\,'l o COUNTY OF L ~C 0\\/\ S5 On this l \C---, day Of~')f ¡--)'-~-tv\ b~ , 20 ~, before me, the undersig ed Notary Public, personally appeared Lance Mortensen. Manager of Double L Ranch #4 LLC. and known to me to be a member or designated agent of the limited liability company that executed the Mortgage and acknowledged the Mortgage to be the free and voluntary act and deed of he limited liability company, by authority of statute, its articles organization or its operating agreement, for the uses and purposes therein me tioned, and on oath stated t t he or she is authorized to exe ut this Mortgage and in fact executed the Mortgage on behalf of the limited Ijabi ity company. /~ R ·d· I "\11 ' eSI !ng at L, v ' w ~'" >è) My commission expires Dycmna Parker· Notary PublIc County of . State of Uncoln Wyoming My CommIuIon June 29, 2011 pro H.r end Flnenc .1 Solullon.. Ino. 1997,2007. All Rivhll R"'8fVld. . WY/ca F:\CFr\LPlIGOJ.FC TA-14386 "A-JO