HomeMy WebLinkAbout922640
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MONTANA TRUST INDENTURE
THIS TRUST INDENTURE, Made this--1 Cf'#'- day of &pkmb".r . 2006 between ESI
#120, LLC, whose mailing address is 2801 Connery Way, Missoula, Montana 59808, as GAANTOR,
FIRST AMERICAN TITLE COMPANY OF MONTANA, INC., with principal office at 1006 West Sussex,
Missoula, Montana 59801, as TRUSTEE, and William J Shaw and Kathleen Shawwhose mailing address
is 70 N Morgan VaDey Drive, Morgan, UT 84050, as BENEFICIARY.
WITNESSETH: That Grantor hereby irrevocably GRANTS, BARGAINS, SELLS, CONVEYS
AND WARRANTS TO TRUSTEE IN TRUST, nevertheless, WITH POWER OF SALE that certain real
property, which does not exceed 30 acres in area, situated in the County of Lincoln, State of Wyoming,
particularly described as follows, to-wit:
Lots 2 of the SS Bar-Ranch, Lincoln County, Wyoming according to the plat filed in the Office
ofthe Lincoln County Clerk June 18,2003 as Plat No. 11-H.
TOGETHER WITH: (1) All buildings, fixtures and improvements thereon and all water
rights, rights-of-way, tenements, hereditaments, privileges and appurtenances thereunto belonging, now
owned or hereafter acquired, however evidenced, used or enjoyed with said premises or belonging to the
same; (2) All right, title and interest hereafter acquired in or to any of said premises, hereby also releasing,
relinquishing and waiving all exemptions, rights of dower and homestead, in or to said premises, vested or
inchoate; (3) All heating, air conditioning, plumbing and lighting facilities, equipment and fixtures now or
hereafter installed upon or within said premises, used or proper or necessary to constitute the said premises a
habitable, usable or operating unit--all of said property being designated and deemed for the purposes of this
instrument a part of the realty; and (4) All of the rents, issues and profits of said premises, SUBJECT,
HOWEVER, to the right, power and authority hereinafter conferred upon Beneficiary to collect and apply
such rents, issues and profits;
FOR THE PURPOSE OF SECURING: (1) Payment of the principal sum of JmLhlA.t1dr~
~~ """""J~M 'Sì!l hJ&Adt"Ld ~ ... cq IIØ) Dollars (Ll5' I , to ID. D'I )with interest
thereon according to the terms ofapromissorynote, dated c~~n,f 1£\ I woLD and
any extensions and/or renewals or modifications thereof), made by Grantor payable to the order of
Beneficiary in installments, the last of which, unless sooner paid, will be due and payable on ~
----dry, tlOO1 ; (2) Payment of all sums expended or advanced by Beneficiary under or pursuant to the
COURTESY RECORDINI
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RECEIVED 9/21/2006 at 10:21 AM
RECEIVING # 922640
BOOK: 634 PAGE: 315
JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER, WY
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000316
terms hereof, together with interest thereon as herein provided; (3) Performance of each agreement of
Grantor herein and in said note contained; and (4) Payment of any future advances, in no event exceeding
Dollars now in contemplation of the parties, if the Beqeficiary at its
sole option elects to make any advances whatsoever.
TO PROTECT THE SECURITY OF THIS TRUST INDENTURE, AND FOR OTHER
PURPOSES, GRANTOR AGREES:
1. To keep said property in good condition and repair; not to remove or demolish any building
thereon; to complete and restore promptly and in a good and workmanlike manner any building which may
be constructed, damaged or destroyed thereon, and to pay when due all claims for labor performed and
materials furnished therefor; to comply with all laws, covenants and restrictions affecting said property; not
to commit or permit waste thereof; not commit, suffer or permit any act upon said property in violation of
the law; to do all other acts which from the character or use of said property may be reasonably necessary,
the specific enumerations herein not excluding the general; and if the loan secured hereby or any part thereof
is being obtained for the purpose of financing construction of improvements on said property, Grantor
further agrees:
(a) To commence construction promptly and to pursue the same with reasonable diligence to
completion in accordance with plans and specifications satisfactory to the Beneficiary, and
(b) To allow Beneficiary to inspect said property at all times during construction.
Trustee, upon presentation to it of an affidavit signed by Beneficiary, setting forth facts showing a
default by Grantor under this numbered paragraph, is authorized to accept as true and conclusive all facts
and statements therein, and to act thereon as provided in this instrument, and as allowed by laws.
2. To provide, maintain and deliver to Beneficiary, insurance of such type or types and amounts as
Beneficiary may require, on the improvements now existing or hereafter erected or placed on said property.
Such insurance shall be carried in companies approved by the Beneficiary with loss payable clause in favor
of and form acceptable to Beneficiary. In the event ofloss, Grantor shall give immediate notice to
Beneficiary, who may make proof of loss and each insurance company concerned is hereby authorized and
directed to make payment for such loss directly to Beneficiary instead ofto Grantor and Beneficiary jointly,
and the insurance proceeds, or any part thereof, may be applied by Beneficiary, at its option, to the reduction
of the indebtedness hereby secured or to the restoration or repair of the property damaged.
3. To deliver to, pay for and maintain with Beneficiary until the indebtedness secured hereby is paid
in full, such evidence of title as Beneficiary may require, including abstracts of title or polices of title
insurance and any extension or renewals thereof or supplements thereto.
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0922640
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4. To pay before delinquent all taxes and assessments, including interest and penalties, affecting said
premises and improvements; to promptly pay and discharge all encumbrances, charges and liens on said
property which at any time are, or appear to be, prior or superior hereto. In addition to the payments due in
accordance with the terms of the note hereby secured, Grantor shall, at the option and on deµIand of the
Beneficiary, pay to the Beneficiary monthly and concurrently with payment of principal and interest, a sum
equal to one-twelfth (1/12th) of the annual taxes, assessments, insurance premiums, maintenance and other
charges upon the property, as estimated by the Beneficiary, in trust nevertheless for Grantor's use and benefit
and for payment by Beneficiary of any such items when due. The failure of Grantor to make any such
payments shall constitute a default under this trust.
5. Except as otherwise expressly provided herein, to pay all costs fees and expenses of this trust,
including costs of search and evidence of title, advertising and recording expense, documentary taxes and
Trustee's and attorney's fees as allowed by law.
6. Should Grantor fail to make any payment or to do any act as herein provided, then Beneficiary or
Trustee, without obligation so to do and without notice to or demand upon Grantor and without releasing
Grantor from any obligation hereof, may make or do the same in such manner and to such extent as either
may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon
said property for such purposes.
7. To pay immediately and without demand all sums expended hereunder by Beneficiary or Trustee,
with interest from date of expenditure at the rate of eight per cent (8%) per annum until paid, and the
payment thereof shall be secured hereby.
IT IS MUTUALLY AGREED THAT:
8. Without affecting the liability of any person, including Grantor, for the payment of any
indebtedness secured hereby, or the lien ofthis Trust Indenture on the remainder of the property for the full
amount of any indebtedness unpaid, Beneficiary and Trustee are respectively empowered as follows;
Beneficiary may from time to time and without notice:
(a) Release any person liable for payment of any ofthe indebtedness,
(b) Extend the time or otherwise alter the terms of payment of any of the indebtedness,
(c) Alter, substitute or release any property securing the indebtedness;
Trustee may, at any time and from time to time, upon the written request of Beneficiary:
(a) Consent to the making of any map or plat of the property,
(b) Join in granting any easement or creating any restriction thereon,
(c) Join in any subordination or other agreement affecting this Trust Indenture or lien or charge
thereof,
(d) Reconvey, without warranty, all or any part of the property.
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9a. Both parties agree that Beneficiary may, if Beneficiary so elects, procure and thereafter continue
during the term of this Indenture, for as long as Beneficiary desires, a form of insurance acceptable to
Beneficiary insuring Beneficiary against any loss sustained by Beneficiary by reason of any default in
payment by Grantor of the secured indebtedness. If Beneficiary elects to procure such insu~ance, Grantor
shall promptly reimburse Beneficiary the full amount ofthe initial premium for such insurance. During the
term of this Indenture, Grantor,shall each month deposit in escrow with Beneficiary 1/12th of the next
following anticipated annual premium for such insurance, said deposit to be made at same time and place as
Grantor makes monthly payments on the aforementioned promissory note. Beneficiary may thereafter pay
all annual renewal premiums from such escrow. Should the amount deposited in escrow be insufficient to
pay any renewal premium in full as the same becomes due, Grantor shall immediately upon demand deposit
with or pay to Beneficiary such additional amount as may be sufficient to pay the renewal premium in full.
Failure of Grantor to payor deposit any of the amounts referred to herein shall constitute a default of the
terms of this Indenture. Mortgagor further agrees to deposit in escrow with Beneficiary 1/12th of the annual
premium for hazard insurance coverage and annual taxes and assessments each month. Failure of the
Grantor to deposit any of the above amounts in the escrow account shall constitute a default ofthe terms of
this Indenture.
00031B
9b. Upon written request of Beneficiary stating that all sums secured hereby have been paid, and
upon surrender of this Trust Indenture and said note to Trustee for cancellation and retention and upon
payment by Beneficiary of its fees, Trustee shall reconvey to Grantor, without warranty, the property then
held hereunder.
10. As additional security, Grantor hereby assigns to Beneficiary, during the continuance of these
trusts, all rents, issues, royalties, and profits of the property affected by this Trust Indenture and of any
personal property located thereon. Until Grantor shall default in the payment of any indebtedness secured
hereby or in the performance of any agreement hereunder, Grantor shall have the right to collect all such
rents, issues, royalties, and profits earned prior to default as they become due and payable. If Grantor shall
default as aforesaid, Grantor's right to collect any of such monies shall cease and Beneficiary shall have the
right, with or without taking possession of the property affected hereby, to collect all rents, royalties, issues,
and profits. Failure or discontinuance of Beneficiary at any time or from time to time to collect any such
monies shall not in any manner affect the subsequent enforcement by Beneficiary of the right power and
authority to collect the same. Nothing contained herein, nor the exercise of the right by Beneficiary to
collect, shall be or be construed to be, an affirmation by Beneficiary of any tenancy, lease or option, nor an
assumption ofliability under, nor subordination of the lien or charge of this Trust indenture to any such
tenancy, lease or option.
11. Upon any default by Grantor hereunder, Beneficiary may at any time without notice, either in
person, by agent, or by a receiver to be appointed by a court (Grantor hereby consenting to the appointment
of Beneficiary as such receiver), and without regard to the adequacy of any security for the indebtedness
hereby secured, enter upon and take possession of said property or any part thereof, in its own name sue for
or otherwise collect said rents, issues, and profits, including those past due and unpaid, and apply the same,
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0922640
0003:19
less cost and expenses of operation and collection, including reasonable attorney's fees, upon any
indebtedness secured hereby, and in such order as Beneficiary may determine.
12. The entering upon and taking possession of said property, the collection of suc~ rents, issues,
and profits, or the proceeds of fire or other insurance policies, or compensation or awards for any taking or
damage of said property, and the application or release thereof as aforesaid, shall not cure or waive any
default or notice of default hereunder or invalidate any act done pursuant to such notice.
13. Time is of the essence hereof. Upon default by Grantor in the payment of any indebtedness
secured hereby or in the performance of any agreement hereunder, all sums secured hereby shall
immediately become due and payable at the option of the Beneficiary. In the event of such default,
Beneficiary may execute or cause Trustee to execute a written notice of default and of election to cause such
property to be sold to satisfy the obligation hereof, and Trustee or Beneficiary shall file such notice for
record, in each county wherein said property or some part thereof is situated. Beneficiary shall also deposit
with Trustee, the note and all documents evidencing expenditures secured hereby.
14. After the lapse of such time as may then be required by law following the recordation of said
notice of default and of election to cause said property to be sold, and notice of default and notice of sale
having been given as then required by law, Trustee, or its attorney, without demand on Grantor, shall sell
said property on the date and at the time and place designated in said notice of sale, either as a whole or in
separate parcels, and in such order as it may determine (but subject to any statutory right of Grantor to direct
the order in which such property, if consisting of several known lots or parcels, shall be sold), at public
auction to the highest bidder, the purchase price payable in cash in lawful money of the United States at the
time of sale. The person conducting the sale may, for any cause he deems expedient, postpone the sale for a
period not exceeding fifteen (15) days by public proclamation by such person at the time and place fixed in
the notice of sale, and no other notice of the postponed sale need be given. Trustee shall execute and deliver
to the purchaser its deed conveying said property so sold, but without any covenant of warranty, express or
implied. The recitals in the deed of any matters or facts shall be conclusive proof of the truthfulness thereof.
Any person including Beneficiary (but excluding Trustee) may bid at the sale. After deducting all costs and
expenses of exercising the power of sale and of the sale including costs of search and evidence of title,
advertising and recording expense, documentary taxes and Trustees' and attorney's fees, Trustee shall apply
the proceeds of sale to payment of all amounts secured hereby and due hereunder, including all sums
expended by the Trustee and Beneficiary, or either of them, with accrued interest thereon at the rate of ten
per cent (10%) per annum from the date of expenditure thereof, and the surplus, if any, to the person or
persons legally entitled thereto; provided that the Trustee, in its discretion, may deposit such surplus with
the County Clerk and Recorder of the county in which the sale took place.
15. Grantor agrees to surrender possession of the hereinabove described trust property to the
purchaser at the aforesaid sale on the tenth (10th) day following said sale, in the event such possession has
not previously been delivered by Grantor.
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0922640
000320
16. Each abstract of title, title insurance policy and all other evidences of title, and all hazard
insurance policies placed or deposited with the Beneficiary shall be deemed an incident to the title to the
trust property and upon foreclosure by exercise of power of sale, or otherwise, shall pass to the purchaser
and the same are hereby pledged as additional security for payment of the indebtedness seclfIed hereby.
17. Upon the occurrence of any default hereunder, Beneficiary shall have the option to declare all
sums secured hereby immediately due and payable and foreclose this Trust Indenture in the manner provided
by law for the foreclosure of mortgages on real property and Beneficiary shall be entitled to recover in such
proceedings all costs and expenses incident thereto, including reasonable attorney's fee in such amount as
shall be fixed by the Court.
18. Except as may be otherwise provided herein, Grantor agrees to pay to Beneficiary or Trustee the
costs and expenses, including a reasonable attorney's fee, incurred by either of them in instituting,
prosecuting or defending any Court action in which Grantor does not prevail, if such action involves the
interpretation hereof of performance hereunder by a party hereto or the breach of any provision hereof by a
party hereto, including but not limited to an action to obtain possession of the above described property after
exercise of the power of sale granted hereunder.
19. This Trust Indenture shall apply to, inure to the benefit of and bind all parties hereto, their heirs,
legatees, devisees, administrators, executors, successors and assigns. All obligations of Grantor hereunder
are joint and several. The term "Beneficiary" shall mean the owner and holder, including any pledgee, of the
note secured hereby. In this Trust Indenture, whenever the context so requires, the masculine gender
includes the feminine and/or neuter, and the singular number includes the plural.
20. Trustee accepts this Trust when this Trust Indenture, duly executed and acknowledged, is made
a public record as provided by law. Trustee is not obligated to notify any party hereto of a pending sale
under any other Trust Indenture or of any action or proceeding in which Grantor, Beneficiary, or Trustee
shall be a party, unless brought by Trustee.
21. This Trust Indenture is made within the State of Montana pursuant to the Small Tract Financing
Act of Montana and is not made or taken in substitution for any mortgage in existence on the effective date
of said Act.
22. Grantor requests that a copy of any notice of default and of any notice of sale hereunder be
mailed to him at the address hereinabove set forth.
IN WITNESS WHEREOF, the Grantors has hereunto set its hand the day and year first hereinabove
written.
ESI #120, LLC, a Montana limited liability company
By: Montana Exchange Services, Inc., Its Authorized Member
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0922640
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By:
Amanda Schmidt, Assistant Vice President
00032~
--
STATE OF MONTANA )
ss.
County of Missoula )
This instrument was acknowledged before me on the I rh of cSe.pj-e.M.Þd, 2/:.JDlø , by
Amanda Schmidt, as Assistant Vice President of MONTANA EXCHANGE SERVICES, INC., a Montana
Corporation who is the sole member ofESI #120, LLC, a Montana limited liability company.
4JÆfl~ - ì
(Seal) Notary Public for u::z::;;;o:~
Residing at:
My commission expires:
Return to:
Montana Exchange Services, Inc.
2801 Connery Way
Missoula, MT 59808
TIMoIY L ERICKSON
NOTARY PIØJC.KJITANA
RIIIdng......... MoaIø
... CIIImI. EIpnI..... 7. 2007 .
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