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HomeMy WebLinkAbout4.07 Lot 18 Alpine (Axtell) Deed of Trust1111 rY�lYlr��t �rtP41�r���'hVi�li r�i l� INnit itUl Reeept lone: 770156 05'26/2009 01 35 36 wi Jean Aloe-iec 1 o1 7 6ec ee.$35 00 3oe Fes 0.00 GARFIELD 000RTY CO RECORDATION REQUESTED BY: timberline Bank Aspen 311 E. Hopkins Avenue Aspen, CO 81611 WHEN RECORDED MAIL TO: Timberline Bank 633.24 Road Grand Junction, CO 81505 SEND TAX NOTICES TO: Timberline Bank Aspen 311 E. Hopkins Avenue Aspen. CO 81611 FOR RECORDERS USE ONLY DEED OF TRUST MAXIMUM PRINCIPAL AMOUNT SECURED. The Lien of this Deed of Trust shall not exceed at any one time $331.000.00 except as allowed under appiicabte Colorado law. THIS DEED OF TRUST Is dated June 23, 2009, among MATT AXTELL ("Grantor"); Timberline Bank, whose address is Aspen , 311 E. Hopkins Avenue, Aspen, CO 81611 (referred to below sometimes as (referred "Lendoer" and sometimes as "Beneficiary"); and the Public Trustee of GARFIELD County, Colorado as "Trustee"). CONVEYANCE AND GRANT. Fa valuable consideration, Grantor hereby Irrevocably grants, transfers and assigns to Trustee for the benefit of Lender as BenetlClary as of Grantors 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; 30 easements, rights of way, and appurtenances; all water. water rights and ditch rights (thcludtng stock in utilities with ditch or irrigation rights); and all other rights, royatses. and g as, geothermal and similar matters, (the "Real profits relating to the real ProPerlY• including without limitation as minerals, od, g Property') located in GARFIELD County, State of Colorado: LOT 18, THE RANCH AT COULTER CREEK P.U.D., ACCORDING TO THE PLAT THEROF RECORDED JUNE 9, 2004 AS RECEPTION NO. 653768. COUNTY OF GARFIELD, STATE OF COLORADO The Real Property or its address is commonly known as 389 SADDLE DRIVE, CARBONDALE, CO 81623. The Real Property tax identification number is 2391-071-01-018. REVOLVING LINE OF CREDIT. This Deed of Trust secures the Indebtedness including, without limitation, a revolving are of credit, which obligates lander to make advances to Borrower so tong as Borrower compiles with a0 the terms of the Credit Agreement tle. interest n and to allGrantor nt anpresently assignsle to Lender (also Property Beneficiary inProperly. Trust)all dti Grantor's granntts todLender ar Uniform all present and future bases of the Property Commercial Code security interest in the Personal Property and Rents. THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT OF THE INDEBTEDNESS AND (8) PERFORMANCE OF EACH OF GRANTOR'S AGREEMENTS AND OBLIGATIONS UNDER THIS DEED OF TRUST. THIS DEED OF TRUST IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: GRANTOR'S REPRESENTATIONS AND WARRANTIES. Grantor warrants that: (a) this Deed of Trust is executed at Borrowers request and not at the request of Lender; (b) Grantor has the full power, right, and authority to enter into this Deed of Trust and to hypothecate the Property: (c) the provisions of this Deed of Trust do not conflict with, or result in a default under any agreement or other Instrument binding Won Grantor and do riot 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 Borrowers financial condition; and (e) Lender has made no representation to Grantor about Borrower (including without limitation the creditworthiness of Borrower). GRANTOR'S WANERS. Grantor waives all rights or defenses arising by reason of any 'one action" or-antideficie a taw,nt 0 8r is other law which may prevent Lender from bringing any acMon against Grantor, inducing a claim for deficiency to totherwise entitled to a claim for deficiency, before or after Lenders commencement or completion of any foreclosure action, either judicially or by exercise of a power of sale. PAYMENT AND PERFORMANCE. Except as otherwise provided In this Deed of Trust. Borrower shag pay to Lender all Indebtedness secured by this Deed of Trust as it becomes due, and Borrower and Grantor shall perform alt their respective obligations under Me Credit Agreement, this Deed of Trust. and the Related Documents. POSSESSION AND MAINTENANCE OF THE PROPERTY. Borrower and Grantor agree that Borrower's and Grantors P^Ss'^.si0n 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 menage the Property; and (3) tolled the Rents from the Property. Duty to Maintain. Grantor shall maintain the Property In tenantable condition and promptly perform at repairs. replacements, and maintenance necessary to preserve its value. Compliance With Emlronmental Laws. Grantor represents and warrants to Lender that: (1) During the Period of Grantors ownership of the Property, there has been no use. generation. manufacture. storage, treatment, d,sposat, 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 Lender In writing, (a) any breach reason ti believe that there nes been, except as pany usty generation, to and acknowledged sto by l release Or « violation of any Environmental Laws. (b) any use, germeratbn. rtharMrfaUure, storage. treatment disposal, threatened release of any Hazardous Substance on. under, about or from the Property by any poor owners or occupants of the Property, or (c) any actual or threatened litigation or claims of any kind by any person relating to such matters; and (3)« xxCotept as previously disclosed to and acknowledged by Lender in writing. (a) neither Grantor nor an tenant, contractor, agent 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 alt 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 Grantors expense. as Lender may deem appropriate to determine compliance of the Property with this section of the Deed of Trust. Any inspections or tests made by Lender shall be for Lenders 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 Grantors due diligence In investigating the et ■iii�wjM ��r�rwkn�rr4u WOONiterligIOU ■ilii 0: 770156 066!26,2/25,2 00099 01:35 36 P11 Jean giberica 2 of 7 Rec Fee,06 00 Doc Fee:0. CO G06FIELD COUNIs' CO DEED OF TRUST Page 2 (Continued) Property for Hazardous Substances. Grantor hereby (1) releases and waives any future davits against Lender for indemnity or contribution 1n the event Grantor becomes liable for cleanup or other casts under any such laws; and (2) agrees to indemnify. defend, and hold harmless Lender against any and at daims, losses. tiabilfies, damages, penalties. and expenses which Lender may directly or indirectly sustain or suffer resulting from a breach of this section of the Deed of Trust or as a consequence of any use, Property. manufacture, oun. storage, disposal, release or threatened release occurring prior to Grantor's ownership or interest he provisMns of this eed in Propclud g the obligation li rat the same was or sdefe have been kve th to ment ofTRre Indebtedness and the satisfion fthe acbo pard r0 Trust.0 ince ofg theen00 o Deed andadefend, shall survive fect the pay reconveyance of the den of this Deed o/ Trust and shall not be affected by Lender's acquisition of any interest in the ProPertY• whether by foreclosure or otherwise. norce or stripping of or Nasse n Waste. Granter start not cause, conduof the ore'ty. any Without tiimmitirg them��ly of the foregoing, Grantor will not waste , a a the Propertyy other or any portion 10 the Property' (including ori and gas),Y remove, or grant to any other party the right to remove, any timber, minerals ( 9 coal, day, soli, gravel or rock products without Lenders prior written consent Removal of Improvements. Granter shed not demolish or remove any Improvements from the Real Properly without Lender's prior written consent. As a condition to the removal of any Improvements, Lender may require Grantor to make arrangements satisfactory to Lender to replace such Improvements with Improvements of at least equal value. Lender's eLeentee upon the Real Property t reasonable timesto attend o Lender's interests and to Inspect Realroperrty for purposes of Granlors compliance withthe terms and conditions of this Deed of Trust. regulations, now or Compliance with Governmental Requirements. Grantor shall promptly comply with as laws, ordinances, and reg hereafter in effect. of au governmental authorities applicable to the use or occupancy of the Property. including without limitation, the Americans With Disabilities Act. Grantor may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so long es Grantor has notified Lender in writing prior to doing so and so long as. in Lenders sole opinion, Lenders interests in the Property are not jeopardized. Lender may require GraMor to post adequate security oro surety band, reasonably satisfactory to Lender, to protect Lenders interest Duty to Protect. Grantor agrees neither to abandon or leave unattended the Property. Grantor shall do all other acts, in addition to those acts set forth above In this section, which from the character and use of the Property are reasonably necessary to protect and preserve the Property. TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property are part of this Deed of Trust Peyment. Grantor shall pay when due (and in all events prior to delinquency) as taxes. special taxes. assessments. charges (including water and sewer), fines and impositions levied against or on account of the Property, and shall pay when due all claims for work done on or for services rendered or material furnished to the Property. Grantor shall maintain the Property free of all liens having priority over 00 equal to the interest of Lender under this Deed of Trust, except for the hen of taxes and assessments not due, except for the Existing Indebtedness referred to below, and except as otherwise provided in this Deed of Trust. 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 den arises oris filed as a result of nonpayment, Grantor shad within fifteen (15) days after the lien arises or, If a lien is filed, within fifteen (15) days atter Grantor has notice of the filing, secure the discharge of the lien. or if requested by Lender. deposit with Lender cash 00 asuffici and corporate surety bond a other security satisfactory to Lender in an amount sufficient to discharge plusany costs 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 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 snarl upon demand furnish to Larder satisfactory evidence of payment of the taxes or assessments end shad authorize the appropriate governmental official to deriver to Lender at any time a written statement of the taxes and assessments against the Property. Notice of Construction. Grantor shad notify Lender at least fifteen (15) days before any work is oommenced, any sconces are furnished, or any materials are supplied to the Property, if any mechanic's lien, materialmen's lien, or other ten could be asserted on account of the work, services, or materials. Grantor will upon request of Lender furnish to Lender advance assurances 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 Deed of Trust. Malntenenu of Insurance. Grantor shad procure and maintain policies of fire insurance with standard extended coveragenamount endorsements on a fair value basis for the full insurable yak* covering all Improvements on the Rea Property in an sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of Lender. Grantor shad also procure and maintain comprehensive general liability insurance in such coverage amounts as Lender may request with Trustee and Lender being named as additional insureds in such IiabOty 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. Policies shall be written In form, amounts, coverages and basis reasonably acceptable to Lender and issued by a company or companies reasonably acceptable to Lender. Grantor. upon request of Lender. will deliver to Lender from time to time the policies or certificates of insurance in fomn satisfactory to Lender, Including stipulations that coverages will not be cancelled or diminished without at feast thirty (30) days prior written notice to Lender. 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 Reel Property be located in an area designated by the Director of the Federal Emergency Management Agency as a special Rood hazard area, Grantor agrees to obtain and maintain Federal Food 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 maximum amount of Borrowers credit line and the tuft unpaid principal balance of any prior liens on the property securing the ben, up to the maximum policy limits set under the National Flood Insurance Program, or as otherwise required by Lender, and to maintain such insurance for the term of the loan. Appttcatlon of Proceeds. Grantor shall promptly notify Lender of any 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 Lenders ,� is to impaired, Len t r the at Lender's election, receive and retain the proceeds of any insurance and apply the pr apply Indebtedness, payment of any lien affecting the Property, or the restoration and repair of the Property, If Lender elects to the proceeds o restoration and repair. Grantor shad repair or replace the damaged or destroyed Improvements n a manner satisfactory to Lender. Lender shad, upon satisfactory proof of such expenditure, pay or reimburse Grantor from the een proceeds or the reasonable cost of repair or restoration if Grantor is not in default under this Deed of Trust. Any proceed 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 Deed of Trust, then to pay accrued interest, and 1 he 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 appear. Compliance with Ex(stleg Irdebtedrress. During the period In whirl, any Existing indebtedness described below is in effect. compliance with the insurance provisions contained in the instrument evidencing such Existing Indebtedness shall constitute compliance with the insurance provisions under this Deed of Trust, to the extent compliance with the terms of this Deed of Trust would constitute a duplication of Insurance requirement. If any proceeds from the insurance become payable on loss, the ®II♦P11i1lithliik141,11144t11120htififWilli III III Receipt lona: 770156 06/26/2009 01 35 -.36 Pei Jean giber .eo 3 of 7 Rec Fee $36 00 Doc Fee -C.00 GARFIELD COUNTY CO DEED OF TRUST Page 3 (Continued) provisions in this Deed of Trust for division of proceeds shad apply only to that portion of the proceeds not payable to the holder of the Existing Indebtedness Grantor's Report on Insurance. Upon request of Lender. however not more than once a year. Grantor shall furnish to Lof the ender a report on each existing po9ky of insurance showing: (1) the name of the insurer, (2) th tris s insured: rol (3) the a 5111 oalue. Policy: (4) the property insured. the then current replacement value of such property, satisfactory e: and (5) the expiration date of the policy. Grantor shall, upon request of Lender, have an Independent appraiser to Lender determine the cash value replacement cost of the Property. is commenced that would materially affect Lender'interestlimitede Property ce o Grantees if Grantor Blis 10 ommply wilth anyf any eprov prorovision of this . discharge tf Grantor rails to wmD1Y proo mai of the Deed In ebte noress in any Related Documents, including or fail re to comply with any anter tis to maintain Existing oor payd Mer t Dead ood f Trust OOras 4� Related o tpou men Lenderon when due any amounts Grantor is required to discharge to) any a te, including but not ended to Granters behalf may (but anal not be uriigaled lo) take arson that Lender deems aper claims, at propriate, timia discharging o paying all taxes Rens, security interests, vin, th encumbrances and Pct such expenditures mincurr levied or paid by Lender for such Property and paying all costs for insuring, maintaining and preserving the Propegty the or able o purposes will then bear Grantor. NI sat the rate uch expenses will�beco a partunder the rofthe Indebtednet Agreement ss and, date incurred option. will (A)ldbe payable data on of repayment (8) by Agreement and be apportioned among and be payable with any installment payment be added d the balance of the Credit 01 any le The Deed of payments to become due during either (1) Inc term of any applicable insurance poficy: o (2) the remaining term d the Credit Agreement; or (C) be treated as a beacon payment which will be due and payable at the Credit Agreement's maturity. Trust also will secure payment of these amounts' Such right shalt be in addition to all other rights and remedies to which Lender may be entitled upon Default are a part of this Deed of Trust: WARRANT!; DEFENSE OF TITLE. The foilowirg provisions relating to ownership of the Property Tab. Grantor warrants that (a) Grantor holds good and marketable title Of record to the Property in tee simple, free and clear of description or in the Existing Indebtedness section aft Rens and encumbrances insurance other than those sal Torch al the Real n perty escvor below or in any title iheurance tolicy, lige report, or final title opinion issued in favor of, and accepted by, Lader in connection with this Deed of Trust. and (b) Grantor has the full right, power, and authority to execute and deliver this Deed of Trust to Lender. Defense of Title. Subject to the exception in the paragraph above. Granter warrants and will forever defend the title tot e Property against the lawful claims of all persons. in the event any action or proceeding is commenced that questions Grantees title or the interest of sor Lender under Grd the antor tion at Grantor's expense. Grantor may be the nominal party such proceeding, but Lender she! be entitledto participate in the proceeding and to be represented in the proceeding by counsel of Lender's own choice. and Grantor will deliver, or rause to be delivered, to Lender such instruments as Lender may request from time to lime to permit such participation. Compliance With taws. Grantor warrants that the Property and Grantors use of the Property complies with all existing applicable laws, ordinances. and regulations of govemnn0Mal authorities. Survival of Representations and Warranties. All representations, warranties, and agreements made by Grantor in this Deed of Trust shall survive the exeotibn and l�vve�ds10115 Oeedd s sheet be of I^ Trust, be continuing In native, and shag remain in full force and effect until such time as Borrower' EXISTING INDEBTEDNESS. The folhowing provisions concerning Existing Indebtedness are a part of this Deed of Trust Existlien. Grantor ing expresslyLien, The sea d tgr Dead tea Trust eec*0 th tea Indebt dness may be secondary and infenor to an of, tfhe Exi 8 Indebtedness and to prevent any default o such indetedcovenants any defau agrees to pay, or see o the Payne nt indebtedness, any default under the instruments evidencing such indebtedness, or any default under any severity documents for such indebtedness. No Modification, Grantor shall not enter into arty agreement with the holder of any mortgage, deed of trust, or other security agreement which has priority over this Deed of Trust by which that agreement is modified. amended, extended, or renewed without the prior written consent of Lender. Grantor shall neither request nor accept any future advances under any such security agreement without the prior written consent of Lender. CONDEMNATION. The following provisions relating to condemnation proceedings are a part of this Deed of Trust: Proceedings. if any proceeding in condemnation is feed, Grantor shag promptly notify Lender ire writing, and Grantor shain ll promptly take such steps as may be necessary to defend the action and obtain the award. Grantor may be the nominal party a such proceeding, but Lender shah be entitled to participate in the proceeding and to be represented in the prod ng by counS of its own choice, and Grantor will deliver or rause to be delivered to Lender such instruments and documentation as may be requested by Lender from time to time to permit such participation. i proceeding Application of Net Proceeds. If all or any part of the Property is condemned by eminent domain proceedings or by any P or purchase in Neu of condemnation, Lender may al its election require that r net portion of the net n of the awed shalls of the mean the award be applied to the Indebtedness or the repair or restoration of the Property. Trusteeeed1 tLhe in mean t with and after payment of all reasonable costs, expenses, and attorneys' fees incurred by condemnation. visions relating o IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following pro governmental taxes, fees and charges are a part of this Deed of Trust Current Taxes, Fees and Charges. Upon request by Lender, Grantor shag execute such documents in addition to this Deed of Trust and take whatever other action is requested by Lender to perfect and continue Lender's Nen on the Real Property. Grantor ontinuing shall Deed of reimburse ncludi g without imitr for all taxes, as ation taxes. fees. docuether mentary stamps.incurred other charges or perfecting or regs>erin9 this Deed of Trust. Taxes. The following shall constitute taxes to which this sectio applies: (1) a specific tax upon this type of Deed of Trust or upon all or any part of the Indebtedness secured by this Deed of Trust; (2) a specific tax o Borrower which Borroon wer is tauthorized or ype of Deed of Trust chired to argeable againuce from st the Lender or thments on the e holder of the ebtedness Credit Agreemed by this ent; and (4) aof Deed of Trust; specific tax on al ora y porton of the idebtedness or on payments of principal and interest made by Borrower. Subsequent Taxes. If any tax to which this section applies is enacted subsequent to the date of this Deed of Tent, this event shall have the same effect as an Event of Default. and Lender may exercise any or all of its avalable remedies o1 Default as provided below unless Grantor either (1) pays the tax before it becomes delinquent, or bond or other s the tax as provided above in the Taxes and Liens section and deposits with Lender cash o a sufficient coperate surety security satisfacory to Lender. SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to *his Deed of Trust as a security agreement are a part of this Deed of Trust Security Agreement This instrument shall constitute a Security Agreement to the extent any of the Property constitutes fbdures, end Lender shall have all of the rights of a secured party under the Uniform Commercial Code as amended from time to time. 111111M 114 11111 Reception#: 770156 05,26/2009 01 35:36 Rn Jea- 5ibe^rico 4 0f 7 Rao Fee 836 00 700 Fee -0.0n GARFI_LD COJNTY CO DEED OF TRUST Page 4 (Continued) Security Interest. Upon request by Lender, Grantor shell take whatever action is requested by Lender to perfect and continue Lender's security interest in the Rents and Personal Property. In addition to recording this Deed of Trust in the real property records, Lender may, at any time and without further authorization from Grantor, file executed counterparts, copies or t tor shail reproductions or continuing security interesof Trust as a ts Upon default,ng nGrantornshall not removvreimburse ver or detach the Parser - Lender for all expenses al from the Property. upon 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 avalable to Lender within three (3) days after receipt of written demand from Lender to the extent permitted by apfficabte law. from which Information concerning the security Addresses. The mailing addresses of Grantor (debtor) and Lender (secured try) from w Commercial Code) are as stated c ri y interest granted by this Deed of Trust may be obtained (each as requiredby first page of this Deed of Trust -tad are a part FURTHER ASSURANCES; ATTORNEY4N FACT• The (throwing provisions relating to further assurances and attorney'.vh of this Deed of Trust: Further Assurances. At any time, and from time to time, upon request Of Lender, Grantor will make, execute and deliver, or will rause to be mace, executed or delivered, to Lender o to Lender's designee, and 'n such when offrrequested q and bybbyces deLender, t cause may deem recorded, relied, rerecorded, mo gs the ease may security agreements. financing statements. continuation appropriate, any and at such further sass, deeds certificates, ttust secand deeds, inion of Lender, be necessary idetmrmenin of er toe/ ectuate, c.pt=menus, serve (1) Y in the and Grantor's obligations necessary r desirable Agre in order 15 e effectuate, Tr f. and perfect. under the Credit Agreement, this Deed of Trust and the Related Docurnents. and (2) the (tens and security interests U� d by ender this Deed of Trust the Property. Grantor shall reimburse Lender now owned or flforer �costsired by Grantor. and expensesnlIncu red in connection with the agrees to the contrary � 9, matters referred to in this paragraph_ Attorney -in -Fact if Grantor fails to do any of the things referred to in the preceding paragraph, Lendermaydofender 8r and in the name of Grantor and at Grantor's expense. For such purposes, Grantor hereby irrevocably appoints beGrant attomey-in-fact for the purpose of making. executing, delivering, filing, recording. and doing a6 other things as may necessary or desirable. in Lender's sole opinion, to accomplish the matters referred to in the preceding paragraph. FULL PERFORMANCE. Upon the full performance of all the obligations under the Credit Agreement and this Deed of Tr��ustee la may, upon production of documents and fees as required under applicable w, release this Deed of Trust, and such reel to constitute a release of the Gen for alt such additional sums and expenditures made pursuant to this Deed of Trust Lender e9 cooperate with Grantor in obtaining such release and releasing the other =eater -al securing the indebtedness. Any release fees required by taw shah be paid by Grantor, if permitted by applicable law. EVENTS OF DEFAULT. Each of the following, at Lender's option, shag constitute an Event of Default under ties Deed of Trust Payment Default Borrower fags to make any payment when due under the Indebtedness. Other Defaults. Borrower or Grantor falls to comply with or to perform any other term, obligation, covenant or condition contained in this Deed of Trust or in any of the Related Documents or to comply with or to perform any term, oblgetion. covenant or condition contained in any other agreement between Lender and Borrower or Grantor. Compliance Default. Failure to comply with any other term, obligation, covenant or condition contained in this Deed of Trust, the Credit Agreement or in any of the Related Documents. for taxes or Default on Other Payments. Failure of Grantor within the time required by this Deed of Trust to make any payment Insurance, or arty other payment necessary to prevent filing of or to effect discharge of any lien. False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or Grantor or on Borrower's or Grantors behalf under this Deed of Trust or the Related Documents s 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 Coltateraleaton. This Deed of Trust or any of the Related Documents nnts�ceaseto be in full force and s any time and for and resect (including failure of any collateral document to create a valid and perfected securityinterest Death or Insolvency. The dissolution or termination of Borrower's or Grantors existence as a ging business, the insolvency 05 80rr4w06 or Grantor, the appointment of a receiver for any part of Borrower's or Grantees property any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceechng under any bankruptcy or insolvency laws by or against Borrower or Grantor. Creditor a ForfeltUfe Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by )agenal pg my set -help, repossession or any other method, by any creditor of Borrower a Grantor or by any governmental property searing the Indebtedness. This includes a garnishment of any of Borrower's or Grantors accounts, including deposit accounts, with Lender. However, this Event of Default shalt 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 t Borrower or Grantor gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a suty bond bond the creditor a forfeiture proceeding, in an amount determined by Lender. in its sole discretion. as being adequate for the dispute. Breach of Other Agreement Any breach by Borrower or Grantor viler the terns of any other agreement between Borrower or Grantor and Lender that is not remedied within any grace r Gperiod provided ther0i0. including without limitation any agreement concerning any indebtedness or other obligation of Borrower Grantor to Lender, whether existing now or later. Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the Indebtedness or any Guarantor dies or becomes incompetent or revokes or disputes the validity of. or liability under, any Guaranty of the Indebtedness. Adverse Change. A material adverse change omas in Borrower's or Grantors financial condition. or Lender believes the prospect of payment or performance of the Indebtedness is impaired. Insecurity. Lender in good faith believes heat insecure. RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this Deed of Trust, at any time thereafter, Trustee or Lender may exercise any one or more of the following rights and remedies: make of Remedies. Election by Lender to pursue any remedy shall not exclude 11 obligation of Grantor under pursuit its hDeed of Trrust. afterremedy, Grantee9 election to o mako exp hall oaffect to take action gh to de lea pertain, shah not affect Lenders right to declare a default and exercise its remedies. Accelerate Indebtedness. Lender shall have the right at its option without notice to Borrower or Grantor to declare the entire Indebtedness immediately due and payable. Foreclosure. Lender shag have the right to cause all or any part of the Real Property. and Personal Property. if Lender decides to proceed against it as if it were real property. to be sold by the Trustee according to the taws of the State of Colorado as respects foreclosures against real property. The Trustee shall give notice in accordance with the laws of Colorado. The Trustee shall apply the proceeds of the sale in the following order. (a) to MI costs and expenses of the sale, including but not limited to •if iP2111111hC hhrfhrOLItAlitiltiWW1.11t41IIII Receotson8. 770136 06/26/2009 01 35,36 Pn Jean Riberroa 5 or 7 Roc FeeiS38.00 Doc Fee 0.00 GARFIELD COUNTY CO DEED OF TRUST (Continued) Page 5 Trustee's fees. attorneys fees, and the cost of title evidence' (b) to alt sums secured by this Deed of Trust: and (c) the excess, If any, to the person or persons legally entitled to the excess. UCC Remedies. With respect to ail or any part of the Personal Property, Lender shall have all the rights and remedies of a segued party under the Uniform Commercial Code. manage Collect Rents. Lender shall have the right, without notice to Borrower or Gran e to nottake possessionn aria d anenhe Pr cpsts• operty and collect the Rents, indudirg amounts past due and unpaid, and apply proceeds, to make against the Indebtedness. In furtherance of this right, Lender may require any tenant or other user of the Property payments of rent or use fees directly to Lender 11 the Rents are collected by Lender, Men Grantor irevocablY designates Lender as Grantor's attorney-in-fact to endorse instruments received in payment thereof in the name of Grantor and to negotiate the Pa by tenants or other users to Lender in response to Lender's demand shalt satisfy the s obligations and for w Me the proceeds. YmerWs whether or not any proper grounds for the demand existed. Lender may exercise Hsrihts foe wash the payments are person. by agent, or through a receiver. its rights under this subparagraph either in Appoint Receiver. Lender shall have the right to have a receiver appointed to take p05585sron 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 Property and apply the Wted°y lawn and above the cost of of mreentor' a re against the Indebtedness. The receiver may serve without bond if permitted by law. Lender's right to the appointment of a receiver shalt exist whether or not the apparent value of the Property exceeds the Indebtedness by a substantial amount. Employment by Lender shall net disqualify a person from serving as a receiver. Receiver may be appointed by a court of competent jurisdiction upon ex pa application and without notice, notice being expressly waived. 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 default of Borrower or Grantor. Gants onable lei a tenant use at sufferance of Lender or the purchaser of the Property and shall, at Lender's option, either (1) pay of the Property. or (2) vacate the Property 'immediately upon the demand of Lender. Other Remedies. Trustee or Lender shall have any other right or remedy provided in this Deed of Trust or the Credit Agreement or available at law or in equity. Sale Of the Preperty. In exercising its rights and remedies, Lender shall be free to designate or fore intone 001108 of election and demand with the Trustee, that the Trustee sell all or any part of the Property tog y sale of the by separate sales. Lender shall be entitled to bid at any public sale on all or any portion of the Property. Upon if an Property. whether made under a power of sale granted in this Deed of Trust or pursuant t0 judicial proceedings.Indebtedness gdnholder l erfof r at sure sale, It shall be entitled to use and apply ail, or any portion r the Credit meat payment {s a purchase purchaseride of the Property purchased. and, in such case. this Deed or T settlement Gr w of aa, or any ocume of, then p of Trust. the Credo Agreement. and any documents evidencing expenditures secured by this Deed of Trust shall be Presented to the person conducting the sale in order that the amount of Indebtedness so used or applied may be credited thereon as having been paid. Attorneys' Fees; Expenses. If Lender forecloses or institutes any suit or action to enforce any of the terms of this Deed of Trust. Lender shall be entitled to recover such sum as the cent may adjudge reasonable as attorneys' fees at trial and upon any appeal. es Lender incurs that et Whether or not any court necessary mais ttime for the protecand to the tion its it nt rest or theibited by enforcemen of its rigge hts shalt Decorn8 a part of the Inde teneopinion are necessary any the Indebtedness payable on demand and stroll bear interest at the Crede Agreement rate from the date of the expenditure law, until repaid. Expenses covered by this paragraph include, without limitation. however subject to any limits under appfica Lenders attorneys fees whether or not there is a lawsuit, including attorneys' fees and expenses for bankruptcyppraisal pToce ngs (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-udg antcollectiona the e oast of searching records, obtaining title reports (Including foreclosure reports). surveyors repo rts, andfees, title Insurance, and fees for the Trustee. to the extent permitted by applicable law. Grantor also will pay any court costs. in addition to all other sums provided by law. Rights of Trustee. To the extent permitted by applicable law. Trustee shat* have all of the rights and duties of Lender as set forth in this section. NOTICES. Any notice required to be given under this Deed of Trust. including without limitation any notice of default and any notice of sale shall be given In writing, and shatl be effective when actually delivered, when actually received by treatersimile (unless otherwise required by law), when deposited with a nationally recognize directht ed courier, te rdor, if mailed.es wn hen depose ited i beginning United fnitd States mail. as fast lass. certified or registered mail postage prepaid, over this Deed of Trust shag o sent is Deed of Taut. All copies of notices of foreclosure from Me holder of any Lien which has priority its address for notices umber this to Lenders address, as shown near the beginning of this Deed of Trust Any party y change Deed of Trust by giving tonna! written notice to the other parties, specifying that the purpose of the notice is to change the parry's address. For notice purposes. Grantor agrees to keep Lender informed at all times rates�enttor �ad� Unlesso notice g se provided or required by law, if there is more than one Grantor, any notice q by Lender to all Grantors. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a pad of this Deed of Trust, and agreement of Amendments. This Deed of Trust, together with any Related Documents, constitutes the entire understanding _ the parties as to the matters set forth in this Deed of Trust No ares ounMfro be endmentd t0 this isirW by 0r' est shall a be effective unless given in writing and signed by the party or pant amendment. Annual Reports. b the Property is used for purposes other than Grantors residenee, Grantor shag Vanish to Lender, upon request, a certified statement of net operating income received from Me Property during Grantors previous fiscal year In such forrn and detail as Lender shag require. 'Net operating income" shall mean all cash receipts from the Property less all cash expenditures made in connection with the operation of the Property. Caption Headings. Caption headings in this Deed of Trust are for convenience purposes only and are not to be used to interpret or define the provisions of this Deed of Trust. Merger. There shag be no merger of the interest or estate created by this Deed of Trust with any other interest or estate in the Property at any time held by or for the benefit of Lender in any capaclb, without the written consent of lender. Governing Law. This Deed of Trust will be governed by federal law applicable to Lender and, to the extern not preempted by federal law, the laws of the Stele of Colorado without regard to Its conflicts of law provisions. Thls Deed of Trust has been accepted by Lender In the State of Colorado. Choice of Venue. If there is a lawsuit. Grantor agrees upon Lenders request to subunit to the jurisdiction of the courts of P1kin County, State of Colorado. Joint and Several Liability. All obligations of Borrower and Grantor under this Deed of Trust shall be joint and several, and all references to Grantor shall mean each and every Grantor, and all references to Borrower shall mean each and every Borrower. This means that each Grantor signing below "s responsfole for all obligations in this Deed of Trust. No Waiver by Lander. Lender shag not be deemed to have waived any nghts under tt is Tof rust uNess tight shag such hewaiver 05 is given in writing and signed by Lender. No delay or omission on the part of sunder exercising 1111K 101111hCRIFIwtLIilLiritli I tiN 1r' IIR" 11111 Recent ionii; 770136 06/26/2039 01.30 36 Pr Jean Riberioci 6 of 7 Rec Fee.336. 00 Doc Fee:7 00 CaRFIE.D COJ*TY CO DEED OF TRUST Page 6 (Continued) waiver of such right or any other right. A waiver by Lender of a provision of this Deed of Trust shall not prejudice or corsttUte a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this teed of Trust. 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 Grantors obligations as to any future transactions. Whenever the consent of Lender is required under this Deed of Trust, the granting of such consent by Lender In any instance stall not constitute continuing consent to subsequent instances where such consent is required and in as cases 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 Deed of Trust 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 provisions cannot be so modified, it shay be considered deleted from this Dead of Trust. Unless otherwise required by law. the illegality, invalidity. or unenforceability of any provision of this Deed of Trust shad not affect the legality, validity or enforceability of any other provision of this Deed of Trust. Successors and Assigns. Subject to any limitations stated in this Deed their of Trust trannsfeors and erfaGrantor'sliter of this Property Trust shall be binding upon and inure to the benefit of the partes, becomes vested in a person other than Grantor. Lender, without notice to Grantor, may deal with Grantors successors with reference to this Deed of Trust and the Indebtedness by way of forbearance or extension without releasing Grantor from the obligations of this Deed of Trust or liability under the Indebtedness. Time is of the Essence. Time is of the essence in the performance of this Deed of Trust. Waive Jury. All parties to this Deed of Trust hereby waive the right to any Jury trial in any action, proceeding, or counterclaim brought by any party against any other party. Waiver of Homestead Exemption. Grantor hereby releases and waives at rights and benefits of the homestead exemption laws of the State of Cobredo as to alt Indebtedness secured by this Deed of Trust. DEFINITIONS. The following capitalized words and terms snail have the following meanings when used in this Dead of Trust. Unless specifically stated to the contrary, at references to debar amounts shall mean amounts in 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 temp not otherwise defined in this teed of Trust shall have the meanings attributed to such terms in the Uniform Commercial Code: Beneficiary. The word 'Beneficiary' means Timberline Bank. and its successors and assigns. Borrower. The word 'Borrower means AXE TRUCKING, LLC ; and AXE HOLDINGS, INC. and includes NI co-signers and co -makers signing the Credit Agreement and all mer successors and assigns. Credit Agreement. The words 'Credit Agreement" mean the credit agreement dated June 23, 2009, with credit limit of 5331,000.00 from Borrower to Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the promissory note or agreement NOTICE TO GRANTOR: THE CREDIT AGREEMENT CONTAINS A VARIABLE INTEREST RATE. Deed of TrusL The words "Deed of Trust' mean this Deed of Trust among Grantor. Lender, and Trustee. and includes without limitation all assignment and security interest provisions relating to the Personal Property and Rena. Default. The word "Default' means the Default set forth in this Deed of Trust in the section titled 'Default'. Environmental Laws. The words 'Envirwnmenlai Laws' mean any and all sate, federal and local statutes. reguations and ordinances relating to the protection of human health or the environment, inducting without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended. 42 U.S.C. Section 9601. et seq. ('CERCLA'), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ('SARA'), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801. et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 8901. et seq., or other applicnble state 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 Deed of Trust in the events of default section of this Deed of Trust. Meting Indebtedness. The words 'Existing Indebtedness' mean the Indebtedness described in the Existing Liens provision of this Deed of Trust. Grantor. The word 'Grantor means MATT AXTELL. Guarantor. The word 'Guarantor' means any guarantor, surety, or accommodation party of any or all of the Indebtedness. Guaranty. The word 'Guaranty' means the guaranty from Guarantor to Lender, including without limitation a guaranty of all or part of the Credit Agreement. Hazardous Substances. The words "Hazardous Substances' mean materials that, because of their quantity, concentration or physical. chemical or infectious characteristics, may cause or pose a present or potential hazard to human health or the environment when improperly used, treated, stored, disposed of. generated. manufactured. transported or otherwise handfed. The words 'Hazardous Substances' are used in their very broadest sense and include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed hander 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 'Indebtedness' means all principal, interest, and other amounts, costs and expenses payable under the Credit Agreement or Related Documents. together with al renewals of, extension of, modifications of, consolidations of and substitutions for the Credit Agreement or Related Documents and any amounts expended or advanced by Lender to discharge Grantors obligations or expenses incurred by Trustee theor rLender to force Grantor's obligations under this Deed of Trust, together with interest on such amounts as provided st Lender. The word 'Lender means Timberline Bank, its successors and assigns. Personal Property. The words 'Personal Propert mean al equipment, fixtures, and other articles of personal Property now or hereafter owned by Grantor, and now or hereafter attached or affixed to the Real Property: together with all accessions. parts, and additions to, all replacements of, and at substitutions for, any of such property: and together with as proceeds (inckx8ng without limitation all insurance proceeds and refunds of premiums) from any sale or other disposition of the Property. Properly. The word 'Property' means collectively the Real Property and the Personal Property. Raab Property. The words 'Real Property' mean the real property. interests and rights, as further described in this Deed of Trust. 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, ooltateral mortgages, and all other instruments, agreements and documents. whether now or hereafter existing. executed in connection with the Indebtedness. 111411111 1N,14117.l;lAVillle i IIIA Reeeptionk: 770156 06/26/2C09 01 35:36 P", Jean Alber.co of 7 Roc Fee -$36.00 Doc Fee 0 00 GARFIEL) COvNi7 CO DEED OF TRUST (Continued) Page 7 Rents. The word "Rents" means all present and future rents, revenues. income, issues, royalties, profits, and other bene5ts derved from the Property. Trustee. The word "Trustee" means the Pubic Trustee of GARFIELD County: Colorado. GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS DEED OF TRUST, AND GRANTOR AGREES TO ITS TERMS. GRANTOR: X MA ' AXTELL STATE OF W'UASlit) COUNTY OF INDIVIDUAL ACKNOWLEDGMENT ) SS On this day before me, the undersigned Notary Public. personally appeared MATT AXTELL, to me known to be the irdhedual described in and who executed the Deed of Trust, and acknowledged that he or she signed the Deed of Trust as his or her free and voluntary act and deed, for the uses and purposes ttllrem m boned. Given under my d and fficiai Beal this Q day of,-4i✓4— J /,/20- (1 . By rte'" Residing at it( T C�+.�/ A //rl,pr rice commission expires / pp 6)0/ V Notary Public n and for the State ofr`' t/ My %� �L/ LASER PRO Lending, Ver. 5.45.00-004 Copr. Harland Financial Solutions, Inc. 1997. 2009. AY Rights Reserved • CO Y:\CFtLLPOG01 FC TR -2514 PR -9