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HomeMy WebLinkAbout952906r e.r` i bei ecorded l y Escrow of Wyoming, LLC Mortgage Continued as a courtesy only WHEN RECORDED MAIL TO: RECEIVED 4/13/2010 at 4:11 PM Steven C. Smith RECEIVING 952906 Smith Chapman Campbell BOOK: 745 PAGE: 414 1800 N Broadway, Suite 200 JEANNE WAGNER Santa Ana, CA 92706 LINCOLN COUNTY CLERK, KEMMERER, WY alliance Title Escrow P 0 Box 1367 Kemmerer WV 83101 SPACE ABOVE THIS LINE IS FOR RECORDERS USE ONLY MORTGAGE -1- O0 414 THIS MORTGAGE, dated this 19th day of January, 2010, is made and executed by SB STAR VALLEY LLC, A Utah limited liability Company "Grantor in favor of Castle Rock Dodge, Chrysler, Jeep, LC, a Wyoming limited liability company, whose address is 1046 S. Washington Street, P.O. Box 77, Afton, Wyoming, 83110 "Lender GRANT OF MORTGAGE. For valuable consideration, Grantor mortgages and conveys, with power of sale, to Lender all of Grantor's right, title, and interest in and to the real property more fully described on Exhibit "A attached hereto and made a part hereof by reference, 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 rights, entitlements, royalties, and profits relating to said real property, including without limitation all minerals, oil, gas, geothermal and similar matters, (the "Real Property This Mortgage secures all of the Secured Obligations. Upon payment in full and complete performance of the Secured Obligations, Lender shall record a complete release of this Mortgage in the filing and recording offices in which it was originally filed or recorded. 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 PAYMENT AND PERFORMANCE OF THE SECURED OBLIGATIONS AND THIS MORTGAGE. Mortgage Continued THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: 0O :4 15 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); Grantor has the full power, right, and authority to enter into this Mortgage and to hypothecate the Property; and (b) 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. PAYMENT AND PERFORMANCE. Except as otherwise provided in this Mortgage, Grantor shall pay to Lender all obligations secured by this Mortgage as and when they become due, and Grantor shall strictly perform all of Grantor's obligations under this Mortgage. POSSESSION AND MAINTENANCE OF THE PROPERTY. Grantor agrees that Grantor's possession and use of the Property shall be governed by the following provisions: 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. 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 -2- Mortgage Continued 00:416 remove, or grant to any other party the right to remove, any timber, minerals (including oil and gas), coal, clay, scoria, soil, gravel or rock products without Lender's prior written consent. Removal of Improvements. Grantor shall not demolish or remove any Improvements from the Real Property without Lender's prior written consent. As a condition to the removal of any Improvements, Lender may require Grantor to make arrangements reasonably satisfactory to Lender, which consent shall not be unreasonably withheld, to replace such Improvements with improvements of at least equal value. Entitlements. Grantor shall not transfer, sell, convey, release or allow to lapse any entitlements associated with the Real Property. Lender's Right to Enter. Lender and Lender's agents and representatives. may enter upon the Real Property. at all reasonable times, upon prior written notice (not to be provided less than two (2) business days in advance) to Grantor and subject to reasonable conditions imposed by Grantor, to attend to Lender's interests and to inspect the 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 applicable laws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable to the use or occupancy of the Property, including without limitation, the Americans With Disabilities Act, the violation of which would give rise to any material adverse impact on (a) Grantor's business, (b) Grantor's financial condition, (c) Grantor's ability to perform, taken as a whole, under the Secured Obligations or this Mortgage, or (d) the Property. Grantor may contest in good faith any such law, ordinance, or regulation and withhold 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, reasonable opinion, Lender's interests in the Property are not jeopardized. Lender may require Grantor to post adequate security or a surety bond, reasonably satisfactory to Lender, to protect Lender's interest. -3- Mortgage Continued CAY'417 Duty to Protect. Grantor agrees neither to abandon nor leave unattended the Property. Grantor shall do all other acts, m addition to those acts set forth above m this section, which from the character and use of the Property are reasonably necessary to protect and preserve the Property. DUE ON SALE CONSENT BY LENDER. Lender may, at Lender's option, declare immediately due and payable 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 Property; whether legal, beneficial or equitable; whether voluntary or involuntary; whether by outright sale, deed, installment sale contract, land contract, 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 Real Property. TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property are part of this Mortgage: Payment. Grantor shall pay or cause to be paid when due and payable (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 and payable all claims for work done on or for services rendered or material furnished to the Property on behalf of Grantor. Grantor shall maintain the Property free of any liens having priority over or equal to the interest of Lender under this Mortgage, except for those liens specifically agreed to in writing by Lender, and except for the lien of taxes, assessments and claims 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 good 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 as a result of nonpayment, Grantor shall within thirty (30) days after the lien arises or, if a lien is filed, within thirty (30) days after Grantor has notice of the filing, secure the discharge of the lien, or if requested by Lender, deposit with Lender cash or a sufficient corporate surety bond or other security reasonably satisfactory to Lender in an amount sufficient to discharge the lien plus -4- Mortgage O0 41.8 Continued any costs and reasonable attorneys' fees, or other charges that could accrue as a result of a foreclosure or sale under the lien. In any contest, Grantor shall defend itself and Lender, at Grantor's cost, and Shall satisfy any adverse judgment before enforcement against the Property. Grantor .shall name Lender as an additional obligee under any surety bond furnished in the contest proceedings. Evidence of Payment. Grantor shall upon written demand furnish to Lender satisfactory evidence of payment of the taxes or assessments and shall authorize the appropriate governmental official to deliver to Lender at any time a written statement of the taxes and assessments against the Property: Notice of Construction. Grantor shall notify Lender at least fifteen (15) days before any construction work is commenced, any construction or construction- related services are furnished, or any construction materials are supplied to the Property, if any mechanic's lien, materialmen's lien, or other lien could be asserted on account of the work, services, or materials. Grantor will upon written request of Lender furnish to Lender advance assurances reasonably satisfactory 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 Mortgage: Maintenance of Insurance. Grantor shall procure and maintain policies of earthquake and fire insurance with standard extended coverage endorsements on a replacement basis for the full insurable value covering all the Property, including 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 as loss payee. Grantor shall also procure and maintain comprehensive general liability insurance in such coverage amounts as Lender may reasonably request, consistent with normal and customary commercial lending practices for similar properties and uses within the geographical area of the Property, with Lender being named as additional insured in such liability insurance policies. Additionally, Grantor shall maintain such other insurance, including but not limited to hazard, business interruption and boiler insurance as Lender may reasonably require consistent with normal and customary commercial lending practices for similar properties -5- Mortgage Continued 00C419 and uses within the geographical area of the Property. Policies shall be written by such insurance companies and m such form as may be reasonably acceptable to Lender. Grantor shall deliver to Lender certificates of coverage from each insurer containing a stipulation that coverage will not be cancelled or diminished without a minimum of ten (10) days' prior written notice to Lender and not containing any disclaimer of the insurer's liability for failure to give such notice. Each insurance policy also shall include an 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 other person. .Should the Real Property be located in an area designated by the Director of the Federal Emergency Management Agency as -a special flood hazard area, Grantor agrees to obtain and maintain Federal Flood Insurance, if available, within 45 days after notice is given 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 reasonably required by Lender consistent with normal and customary commercial lending practices for similar properties and uses within the geographical area of the Property, and to maintain such insurance for the term of the loan. Application of Proceeds. Grantor shall promptly notify Lender of any material loss or damage to the Property. Lender 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 impaired, Lender may, at Lender's election, receive and retain the proceeds of any insurance and apply the proceeds to the reduction of the obligations under the Secured Obligations, payment of any lien affecting the Property, or the restoration and repair of the Property. If Lender elects to apply the proceeds to restoration and repair, Grantor shall repair or replace the damaged or destroyed Improvements in a manner reasonably satisfactory to Lender consistent with the condition thereof now existing. Lender shall, upon satisfactory proof of such expenditure, pay or reimburse Grantor from the proceeds for the reasonable cost of repair or restoration if an Event of Default has not occurred. Any proceeds which have not been disbursed within 180 days after their receipt 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 and the Secured Obligations, then to pay accrued interest. If Lender holds any proceeds after payment in full of the obligations under the Secured Obligations, such proceeds shall be paid to Grantor as Grantor's interests may appear. -6- Mortgage 2 Continued Grantor's Report on Insurance. Upon request of Lender, Grantor shall furnish to Lender a report on each existing policy of insurance showing: (1) the name of the insurer; (2) the risks insured; (3) the amount of the policy; (4) the property insured, the then current replacement value of such property, and the manner of determining that value; and (5) the expiration date of the policy. LENDERS EXPENDITURES. If any action or proceeding is commenced adversely affecting Lender's interest in the Property or if there occurs an Event of Default hereunder or under the Secured Obligations, including but not limited to Grantor's failure to discharge or pay when due any amounts Grantor is required to discharge or pay under this Mortgage or the Secured Obligations, Lender on Grantor's behalf may (but shall not be obligated to) take any action that Lender reasonably deems appropriate, including but not limited to discharging or paying all taxes, liens, security interests, cumbrances and other claims, at any time levied or placed on the Property and paying all reasonable costs for insuring, maintaining and preserving the Property. All such expenditures reasonably incurred or paid by Lender for such purposes as provided herein or pursuant to the Secured Obligations will then bear interest at the rate charged under the Secured Obligations from the date incurred or paid by Lender to the date of repayment by Grantor. All such expenses will become a part of the obligations under the Secured Obligations and, at Lender'soption, will be payable upon written demand. The Mortgage 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 upon an Event of Default. WARRANTY: DEFENSE OF TITLE. The following provisions relating to ownership of the Property are a part of this Mortgage. Title. Grantor warrants that (a) Grantor holds good and marketable title of- record to the. Real Property in fee simple, free and clear of all liens and encumbrances other than those set forth in any title insurance policy title report of the Real Property, or final title opinion issued in favor of, and accepted by, Lender in connection with this Mortgage, and (b) Grantor has the lull right, power, and authority to execute and deliver this Mortgage to Lender. -7- Mortgage 00.421 Continued Defense of Title. Subject to the exception in the paragraph above, Grantor warrants and will forever defend the title to the Property against the claims of all persons.. In the event any action or- proceeding is commenced that questions Grantor's title or the interest of Lender under this Mortgage, Grantor shall defend the action at Grantor's expense. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of Lender's own choice, and Grantor will deliver, or cause to be delivered, to Lender such instruments as Lender may reasonably request from time to time to permit such participation. Compliance With Laws. Grantor warrants that the Property and Grantor's use of the Property complies in all material respects with all existing applicable laws, ordinances, and regulations of governmental authorities. Survival of Representations and Warranties. All representations, warranties, and agreements made by Grantor m this Mortgage shall survive the execution and delivery of this Mortgage, shall be continuing in nature, and shall remain in full force and effect until such time as the obligations under the Secured Obligations and Mortgage shall be satisfied in -full, unless otherwise stated herein. CONDEMNATION. The following provisions relating to condemnation proceedings are a part of this Mortgage. Proceedings. If any proceeding m 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 party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of its own choice, and Grantor will deliver or cause to be delivered to Lender such instruments and documentation as may be reasonably requested by Lender from time to time to permit such participation. Application of Net Proceeds. If all or any part of the Property is condemned by eminent domain proceedings or by any proceeding or purchase in lieu of condemnation, Lender may at its election require that all or any portion of the net proceeds of the award be applied to -8- Mortgage C Continued the amounts due under the Secured Obligations or the repair or restoration of the Property. The net proceeds of the award shall mean the award after payment of all reasonable out -of- pocket costs, expenses, and reasonable out -of- pocket attorneys' fees incurred by Lender in connection with the condemnation. IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating to governmental taxes, fees and charges are a part of this Mortgage: Current Taxes, Fees and Charges. Upon request by Lender in writing, Grantor shall execute such documents in addition to this Mortgage and take whatever other action is reasonably requested by Lender to perfect and continue Lender's lien on the Real Property. Grantor shall reimburse Lender for all taxes, as described below, together with all reasonable expenses incurred in recording, perfecting or continuing this Mortgage, including without limitation all taxes, fees, documentary stamps, and other charges for recording or registering this Mortgage. 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 obligations secured by this Mortgage; (2) a specific tax on the Grantor which Grantor is authorized or required to deduct from payments on the obligations secured by this Mortgage; (3) a tax on this type of Mortgage chargeable against the Lender or the holder of any of the notes that are a part of the Secured Obligations; and (4) a specific tax on all or any portion of the obligations secured by this Mortgage or on payments of principal and interest made by Grantor. Nothing herein, however, shall apply to any tax on the income or profit of Lender. Subsequent Taxes. If any tax to which this section applies is enacted subsequent to the date of this Mortgage, Lender may exercise any or all of its available remedies for an Event of Default unless Grantor, following written notice to Grantor of the existence of same, the amount thereof and the date such amount is due and payable, either (1) pays the tax before it becomes delinquent, or (2) contests the tax as provided above in the Taxes and Liens section and deposits with Lender cash or a sufficient corporate surety bond or other security reasonably satisfactory to Lender. -9- Mortgage Continued 0423 SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to this Mortgage as a security agreement are a part of this Mortgage: Security Agreement. This instrument shall constitute a Security Agreement to the extent any of the Property constitutes fixtures, and Lender shall have all of the rights of a secured party under the Uniform Commercial Code as amended from time to time Security Interest. Upon written request by Lender, Grantor shall take whatever action is reasonably requested by Lender to perfect and continue Lender's security interest in the Rents and Personal Property. In addition to recording this Mortgage in the real property records, Lender May, at any time and without further authorization from Grantor, file executed counterparts, copies or reproductions of this Mortgage as a financing statement. Grantor shall reimburse Lender for all reasonable out -of- pocket expenses incurred in perfecting or continuing this security interest. Upon an Event of Default, Grantor shall not remove, sever or detach the Personal Property from the Property. Upon an Event of Default, Grantor shall assemble 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 ten (10) days after receipt of written demand from Lender to the extent permitted by applicable law. Addresses. The mailing addresses of Grantor (debtor) and Lender (secured party) from which information concerning the security interest granted by this Mortgage may be obtained (each as required by the Uniform Commercial Code) are as stated in the Loan Agreement. FURTHER ASSURANCES; ATTORNEY -IN -FACT. The following provisions relating to further assurances and attorney -in -fact are a part of this Mortgage: Further Assurances. At any time, and from time to time, upon written request by Lender, Grantor will make, execute and deliver, or will cause to be made, executed or delivered, to Lender or to Lender's designee, and when requested by Lender in writing, cause to be filed, recorded, refiled, or rerecorded, as the case may be, at such times and in such offices and places as Lender may deem reasonably appropriate, any and all such mortgages, deeds of trust, security deeds, security agreements, financing statements, 10 Mortgage Continued (NA 424 continuation statements, instruments of further assurance, certificates, and other documents as may, in the sole reasonable opinion of Lender, be necessary or desirable in order to effectuate, complete, perfect, continue, or preserve (1) Grantor's obligations under the Secured Obligations or this Mortgage and (2) the liens and security interests created by this Mortgage as first priority liens on the Property, whether now owned or hereafter acquired by Grantor. Unless prohibited by law or Lender agrees to the contrary in writing, Grantor shall reimburse Lender for all reasonable out -of- pocket 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 within a reasonable period of time from the date of Lender's written request, Lender may do so for and in the name of Grantor and at Grantor's reasonable expense. For such purposes, Grantor hereby irrevocably appoints Lender as Grantor's attorney -m -fact for the purpose of making, executing, delivering, filing, recording, and doing all other things as may be necessary or desirable, in Lender's sole reasonable opinion, to accomplish the matters referred to in the preceding paragraph. FULL PERFORMANCE. If Grantor pays all the obligations under the Secured Obligations when due, and otherwise performs all the obligations imposed upon Grantor under this Mortgage, Lender shall promptly execute and deliver to Grantor a suitable satisfaction of this Mortgage and suitable statements of termination of any financing statement on file evidencing Lender's security interest in the Rents and the Personal Property. Grantor will pay, if permitted by applicable law, any reasonable termination fee as determined by Lender from time to time necessary for filing such releases, discharges and terminations. EVENTS OF DEFAULT. Each of the following, at Lender's option, shall constitute an Event of Default under this Mortgage: Payment Default. Borrower fails to make any payment' when due under the Secured Obligations. Default on Other Payments, Failure of Grantor within the time required by this Mortgage to make any payment for taxes or insurance, or any other payment necessary to prevent filing of or to effect discharge of any lien. Mortgage 00v425 Continued Other Defaults. Borrower or Grantor falls to comply with or to perform any other term, obligation, covenant or condition contained in this Mortgage or the Secured Obligations, or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower or Grantor. Default in Favor of Third Parties. Should Borrower or Grantor default under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that materially affects any of Grantor's property or Borrower's ability to repay the Secured Obligations or Borrower's or Grantor's ability to perform their respective obligations under this Mortgage or any related document. False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or Grantor or on Borrower's or Grantor's behalf in this Mortgage or the Secured Obligations is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter. Defective Collateralization. This Mortgage ceases to be in full force and effect (including failure of any collateral document to create a valid and perfected security interest or lien) at any time and for any reason. Death or Insolvency. The dissolution of Grantor (regardless of whether election to continue is made), any member withdraws from the limited liability company, or any other termination of Borrower's or Grantor's existence as a going business or the death of any member, the insolvency of Borrower or Grantor, the appointment of a receiver for any part of Borrower's or. Grantor's property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower or Grantor, provided that in the event the members of Grantor shall negotiate a sale or sell their members interests or the assets of Grantor to Wolf Auto Group or buyer of equal financial strength and (1) Wolf Auto Group or such other buyer agrees in writing to assume the Secured Obligations of Grantor and obligations arising under this Mortgage, and (2) Lender, in its sole and absolute 12 Mortgage Continued 000426 discretion, consents (a) to such sale or transfer to Wolf Auto Group or such other buyer and (b) to the assumption of the Secured Obligations. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self -help, repossession or any other method, by any creditor of Borrower or Grantor or by any governmental agency against any property securing the amounts due under the Secured Obligations. This includes a garnishment of any of Borrower's or Grantor's accounts, including deposit accounts, 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 or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower or Grantor gives Lender written notice of the creditor or forfeiture proceeding deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount 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 under the terms of any other agreement between Borrower or Grantor and Lender that is not remedied within any grace period provided therein, including without limitation any 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, surety, or accommodation party of any of the notes that are a part of the Secured Obligations or any guarantor, endorser, surety, or accommodation party dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any guaranty of the Secured Obligations. In the event of a death, Lender, at its option, may, but shall not be required to, permit the guarantor's estate to assume unconditionally the obligations arising under the guaranty in a manner satisfactory to Lender, and, m doing so, cure any Event of Default. Adverse Change. A material adverse change occurs in Grantor's or Borrower's financial condition, or Lender believes the prospect of payment or performance of the Secured Obligations is impaired. 13 Mortgage C Ov427 Continued Right to Cure. If any default, other than a default m payment is curable and if Grantor or Borrower has not been given a notice of a breach of the same provision of this Mortgage within the preceding twelve (12) months, it may be cured if Grantor or Borrower, as applicable, after receiving written notice from Lender demanding cure of such default: (1) cures the default within fifteen (15) days; or (2) if the cure requires more than fifteen (15) 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. RIGHTS AND REMEDIES UPON AN EVENT OF DEFAULT. Upon the occurrence of an Event of Default and at any time thereafter, Lender, at Lender's option, may exercise any one or more of the following rights and remedies, in addition to any other rights or remedies provided by the Secured Obligations, or the law: Accelerate Indebtedness. Lender shall have the right at its option without notice to Grantor or Borrower to declare the entire amount of the Secured Obligations immediately due and payable. 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. Collect Rents. Lender shall have the right, without notice to Grantor, to take possession of the Property, including during the pendency of foreclosure, whether judicial or non judicial, andcollect the Rents, including amounts past due and unpaid, and apply the net proceeds, over and above Lender's reasonable out -of- pocket costs, against the amount due under the Secured Obligations. 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 Lender, then Grantor irrevocably designates Lender as Grantor's attorney -in -fact to endorse instruments received in payment thereof in the name of 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, 14 Mortgage 006 428 Continued whether or not any proper grounds for the demand existed. Lender may exercise its rights under this subparagraph either in person, by agent, or through a receiver. Appoint Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any part 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 amounts due under the Secured Obligations. 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 apparent value of the Property exceeds the amount owing under the Secured Obligations by a substantial amount. Judicial Foreclosure. Lender may obtain a judicial decree foreclosing Grantor's interest in all or any part of the Property. Nonjudicial Sale. Lender may foreclose Grantor's interest in all or in any part of the Property by non judicial sale, and 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 remaining under the Secured Obligations due to Lender after application of all amounts received from the exercise of the rights provided in this section. Tenancy at Sufferance. If Grantor remains in possession of the Property after the Property is sold as provided above or Lender otherwise becomes entitled to possession of the Property upon an Event of Default, Grantor shall become a tenant 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 the Property, or (2) vacate the Property immediately upon the written demand of Lender. Other Remedies. Lender shall have all other rights and remedies provided in this Mortgage, the Secured Obligations, or otherwise available at law or in equity. Sale of the Property. To the extent permitted by applicable law, Grantor hereby waives any and all 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 together or -15- Mortgage O6429 Continued 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. Notice of Sale. Lender shall give Grantor reasonable notice of the time and place of any public sale of the Personal Property or of the time after which any private sale or other intended disposition of the Personal Property is to be made. Reasonable 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 be made in conjunction with any sale of the Real Property. Election of Remedies. Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Grantor under this Mortgage, after an Event of Default, shall not affect Lender's right to declare a. default and exercise its remedies. Nothing under this Mortgage or otherwise shall be 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 restrict the rights and ability of Lender to proceed directly against Grantor and /or against any other co- maker, surety, guarantor, or endorser and /or to proceed against any other collateral directly or indirectly securing the amounts due and owing under the Secured Obligations and /or this Mortgage. Attorneys' Fees; Expenses. If Lender institutes any suit or action to enforce any of the terms of this Mortgage, Lender shall be entitled to recover reasonable attorneys' fees incurred by Lender at trial and upon any appeal. Whether or not any court action is involved, and to the extent not prohibited by law, all reasonable out -of- pocket expenses Lender incurs that in Lender's opinion are necessary at, any time for the protection of its interest or the enforcement of its rights hereunder shall become a part of the obligations payable upon written demand and shall bear interest at the Secured Obligations 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 reasonable out -of- pocket attorneys' fees and Lender's reasonable out -of- pocket legal expenses whether or not there is a lawsuit, including reasonable out -of- pocket attorneys' fees and expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post judgment collection services, the reasonable out -of- pocket cost of 16 Mortgage OO.4aO Continued searching records, obtaining title reports (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 and any notice of sale shall be given in writing, and shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise 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 of 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 beginning of this Mortgage. Any party may change its address for notices under this Mortgage by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, Grantor agrees to keep Lender informed 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 by Lender to any Grantor is deemed to be notice given to all Grantors. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Mortgage: Amendments. This Mortgage, together with the Secured Obligations, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Mortgage. No alteration of or amendment to this Mortgage shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Caption Headings. Caption headings in this Mortgage are for convenience purposes only and are not to be used to interpret or define the provisions of this Mortgage. Governing Law. This Mortgage will be governed by, construed and enforced in accordance with federal law and the laws of the State of Wyoming. This Mortgage has been accepted by Lender in the State of Wyoming. -17- Mortgage 00v431. Continued Choice of Venue. If there is a lawsuit, Grantor agrees upon Lender's request to submit to the jurisdiction of the courts of Lincoln County, State of Wyoming. No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Mortgage unless such 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 waiver 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 Lender's right otherwise to demand strict compliance with that provision or any other provision of this Mortgage. No prior waiver by Lender, nor any course of dealing between Lender and Grantor, shall constitute a waiver of any of Lender's rights or of any of Grantor's obligations 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 cases such consent may be granted or withheld in the sole discretion of Lender, except as otherwise expressly provided herein. Severability. If a court of competent jurisdiction finds any provision of this Mortgage to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall be considered deleted from this Mortgage. Unless otherwise required by law, the illegality, invalidity, or unenforceability of any provision of this Mortgage shall not affect the legality, validity or enforceability of any other provision of this Mortgage. Merger. There shall be no merger of the interest or estate created by this Mortgage with any other interest or estate in the Property at any 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 becomes vested in a person other than Grantor, Lender, without notice to Grantor, may deal with 18 Mortgage co 432 Continued Grantor's successors with reference to this Mortgage and the obligations of the Secured Obligations by way of forbearance or extension without releasing Grantor from the obligations of this Mortgage or liability under the Secured Obligations, until such time as the obligations of this Mortgage or liability under the Secured Obligations have been assumed by such successor or assignee. 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 homestead exemption laws of the State of Wyoming as to all obligations secured by this Mortgage. DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Mortgage. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts m lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in. this Mortgage shall have the meanings attributed to such terms in the Uniform Commercial Code. Borrower. The word "Borrower" means SB STAR VALLEY LLC, a Utah limited liability company, whose address is 985 Queens Drive, American Fork, UT 84003. Event of Default. "Event of Default" shall have that meaning as defined in this Mortgage. Grantor. The word "Grantor" means SB STAR VALLEY LLC, a Utah limited liability company, whose address is 985 Queens Drive, American Fork, UT 84003. 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. Lender. The word "Lender" means Castle Rock Dodge, Chrystler, Jeep, LC a Wyoming limited liability Company, its successors and assigns. Mortgage. The word "Mortgage" means this Mortgage between Grantor and Lender. Secured Obligations. The word "Secured Obligations" shall mean that certain "Promissory Note" of even date, between SB STAR VALLEY LLC, a Utah Limited 19 Mortgage 4:; Continued Liability Company as "Borrower" and Castle Rock Dodge, Chrysler, Jeep LC, as "Lender," together with (A) all amendments, addenda, modifications, restatements or replacements made with respect thereto, whether presently existing or hereafter arising; and (B) any other document or instrument given m connection with or as security for any of the foregoing, whether presently existing or hereafter created or arising, as the same have been or may hereafter be amended, modified, renewed, extended or restated from time to time (collectively, the Obligations Property. The word "Property" means collectively the Real Property and any Personal Property. Real Property. The words "Real Property" mean the real property, interests and rights, as further described in this Mortgage. Rents. The word "Rents" means all present and future rents, revenues, income, issues, royalties, profits, and other benefits derived from the Property. /Remainder of Intentionally Left Blank Signature Page to Follow -20- STATE OF UTAH ss. COUNTY OF UTAH Witness my hand and official 4/J seal. n My Commission Expires: 7 c9 /3 WITNESS my hand and official seal. Commission 1713670 Notary PubNc California f Orang. County IN/Con �IwDsc81,a010 Mortgage ACKNOWLEDGEMENT ACKNOWLEDGEMENT -22- GRANTOR: SB STAR VALLEY LLC a Utah limited liability company By: a G. PAULO BAN TER Its: Member By: TEVEN C. SMIT Its: Member 00t61434 The foregoing instrument was acknowledged before me by G. Paulo Bangerter as Member of SB STAR VALL Y LLC, a U i limi.td liability company, this J$T day of 2010. Public STATE OF CALIFORNIA ss. COUNTY OF ORANGE On /pt)'(_ (t 20 iJ before me, Meryl J. Day, a notary public, personally appeared _STEVEN C. SMITH who proved to me on the basis of satisfactory evidence to be the person(, whose name(s4' is /awe subscribed to the within instrument and acknowledged to me that he/site-Maw executed the same in his /l the.ir authorized capacity(ies), and that by his /weir signature(%) on the instrument the person(s), or the entity upon behalf of which the person() acted, executed the instrument. I declare under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. k G Sig uretsn notar Continued MARALEE MORTENSEN NOTARYPMIUC411IE OF UNI C0MM18810N8 577518 COMM. EXP. 0249.2013 Mortgage EXHIBIT A The following is located in Lincoln County, Wyoming Township 31 North, Range 119 West, of the 6th P.M., Lincoln County, Wyoming NW% SE%, SE% NW%, SW% NW% 000435 Section 28: SW% SE%, SE% SW SW% SW%, NW% SW%, NE% SW%, Continued