HomeMy WebLinkAbout906709RECORDATION REQUESTED BY:
Rocky Mounlain Bank - Whitehall
101 E. Legion
P.O. Box 599
Whilehall, MT 59759
WHEN RECORDED MAIL TO:
Rocky Mounlain Bank - Whitehall
101 E. Legion
P.O. Box 599
Whitehall, MT 59759
SEND TAX NOTICES TO:
Rocky Mountain Bank - Whitehall
101 E. Legion
P.O. Box 599
Whileh{~ll, MT 59759
0554
RECEIVING # 906709
BOOK: 579 PAGE: 554
JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER, WY
~;PA(;::E ABQVE THI~; LINE I~; FgR RECORDER'$ USE ONLY
CONSTRUCTION MORTGAGE
MAXIMUM LIEN. The total principal indebtedness that may be outstanding at any given time which is secured
by this Mortgage is $180,000.00.
THIS MORTGAGE dated February 18, 2005, is made and executed between Wendell Harris Profit Sharing Plan,
whose address is PO Box 977, Thayne, WY 83127 (referred to below as "Grantor") and Rocky Mountain Bank -
Whitehall, whose address is 101 E. Legion, P.O. Box 599, Whitehall, MT 59759 (referred to below as "Lender").
GRANT OF MORTGAGE. For valuable consideration, Grantor mortgages and conveys to Lender all of Grantor's right, title, and interest in and to
the following described real property, together with all existing or subsequently erected or affixed buildings, improvements and fixtures; all easements,
rights of way, and appurtenances; all water, water rights, watercourses and ditch rights (including stock in utilities with ditch or irrigation rights); and all
other rights, royalties, and profits relating to the real property, including without limitation all minerals, oil, gas, geothermal and similar matters, (the
"Real Property") located in Lincoln County, State of Wyoming:
Lot 43 of Star Valley Ranch, Plat 18, Lincoln County, Wyoming as described on the official plat thereof
The Real Property or its address is commonly known as 720 Hardman Road, Thayne, WY 83127.
CROSS-COLLATERALIZATION. In addition to the Note, this Mortgage secures all obligations, debts and liabilities, plus interest thereon, of Grantor to
Lender, or any one or more of them, as well as all claims by Lender against Grantor or any one or more of them, whether now existing or hereafter
arising, whether related or unrelated to the purpose of the Note, whether voluntary or otherwise, whether due or not due, direct or indirect, determined
or undetermined, absolute or contingent, liquidated or unliquidated whether Grantor may be liable individually or jointly wilh others, whelher obligated
as guarantor, surety, accommodation pa~ty or otherwise, and whether recovery upon such amounts may be or hereafter may become barred by any
statute of limitations, and whether the obligation to repay such .=mounts may be or hereaffer may become otherwise unenforceable.
Grantor presently assigns to Lender all of Grantor's right, title, and interest in and to all present and future leases of the Property and all Rents from the
Property. In addition, Grantor grants to Lender a Uniform Commercial Code security interest in the Personal Properly and Rents.
THIS MORTGAGE, 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 (B) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THE NOTE,
THE RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS:
PAYMENT AND PERFORMANCE. Except as otherwise provided in this Mortgage, Grantor shall pay to Lender all amounts secured by this Mortgage
as they become due and shall strictly perform all of Grantor's obligations under this Mortgage.
CONSTRUCTION MORTGAGE. This Modgage is a "construction modgage" for the purposes of Sections 9-334 and 2A-309 of the Uniform
Commercial Code, as those sections have been adopted by the State of Montana.
POSSESSION AND' MAINTENANCE OF THE PROPERTY. Grantor agrees that Grantor's Possession and use of the Properly shall be governed by the
followlhg provisions ' ~', ' ' '" ' ..... : ' ~ ' ~':
Possession and Use.. :Until the occurrence.of;an Event of,Default, Grantor may (1') remain in possession ~nd contr01 bf the.PrOperty;. (2) use,
operate or,manage the Property and (3) collect the Rents from the Properly The following provisions relate lo the use of the-'Ptopedy or to other_
limitations on the Propert~
Duty to Maintain.. Grantor shall maini~in the 15~'ol~erty in tena'ntable condition and pi:omptly pedorm all repairs,'replacementS::'and maintenance
necessary to preserve its value. . .. ~ ..,. . ..
Compliance With Environmental Laws. Grantor re'presents and warrants to'Lendertha, t: (1) During the period of Grantor's ownership of the
Property, there has been no use, generation, manufacture, storage, treatment, diSPosal, release or th~'e~ten~d release of any Hazardous
Substance by any person on, under, about or from the Properly; (2) Grantor has no knowledge of, or reason to believe that there has been,
except as previously disclosed to and acknowledged by Lender in writing, (a) any breach or violation of any Environmental Laws, (b) any use,
generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the
Properly by any prior owners or occupants of the Properly, or (c) any actual or threatened litigation or claims of any kind by any person relating
to such matters; and (3) Except as previously disclosed to and acknowledged by Lender in writing, (a) neither Grantor nor any tenant,
contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of or release any Hazardous
Substance on, under, about or from the Properly; and (b) any such activity shall be conducted in compliance with all applicable federal, state,
and local laws, regulations and ordinances, including without limitation all Environmental Laws. Grantor authorizes Lender and its agents to enter
upon the Properly to make such inspections and tests, at Grantor's expense, as Lender may deem appropriate to determine compliance of the
Property with this section of the Mortgage. Any inspections or tests made by Lender shall be for Lender's purposes only and shall not be
construed to create any responsibility or liability on the pad of Lender to Grantor or to any other person. The representations and warranties
contained herein are based on Grantor's due diligence in investigating the Properly for Hazardous Substances. Grantor hereby (1) releases and
waives any future claims against Lender for in'demnity or contribution in the event Grantor becomes liable for cleanup or other costs under any
such laws; and (2) agrees to indemnify and hbld harmless Lender against any and all claims, losses, liabilities, damages, penalties, and expenses
which Lender may directly or indirectly sustain or suffer resulting from a breach of this section of the Modgage or as a consequence of any use,
generation, manufacture, storage, disposal, release or threatened release occurring prior to Grantor's ownership or interest in the Property,
whether or not the same was or should have been known to Grantor. The provisions of this section of the Mortgage, including the obligation to
indemnify, shall survive the payment of the Indebtedness and the satisfaction and reconveyance of the lien of this Modgage and shall not be
affected by Lender's acquisition of any interest in the Properly, whether by foreclosu~'e or otherwise.
Nuisance, Waste.. Grantor shall not cause, conduct or .permit any nuisance nor commit, permit, or suffer any stripping of or waste on or to the
Property 0r: any portion of the Property. Without limiting the generality'of the foi:eg'°ingl GrantOr' will n'ot rernove~ or grant to any"oth'er' pady the
right to remove '.any ti'mber, minera s (including o and gas), coa, c ay scora so grave or rock products w thout Lender's pr or wr ften consent
emoval of. Improvements. ,.Grantor. shall not demohsh Orr remove any Improvements from the Real Pr0p~rt~,'Withodt'rehder's"p~ior'written
~. . ¢..onsent. As a condition to the removal of any Improvements, I'er~der may require Grantor to make arrangem'ents SaJli§faCtdry't0 Lender to.replace
i'~!~'.. ~:t~ Improvements with Improvements of at least equal value.
Lender's Righl 1o Enter. Lender and Lender's agents and representatives may enter upon the Real Property' at all reasonable times to attend to
Lender's interests and to inspect the Real Property for purposes of Granlor's compliance with the terms and conditions of this Mortgage.
Compliance with Governmental Requirements. Grantor shall promptly comply with aJ~,laws, ordinances, and regulations, now or hereafter in
effect, of all governmental authorities applicable to the use or occupancy of the I~pedy, 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 as Grantor has notified Lender in writing prior to doing so and so long as, in Lender's sole opinion,
MORTGAGE {,.: ~
Loan No: 803451 0~}0~{,.},~ . (Continued) :~ 0 5 5 ,~ Page 2
Lender's interests in lhe Property are not jeopardized. Lender may require Granlor to post adequate security or a surely bond, reasonably
satisfactory to Lender, to protect Lender's.inleres,l,,..;.:.- .
Duty lo Protecl. Grantor agrees neilher to abandon or leave unaltended the Property. Grantor shall do all other acts, in addition 1o those acts set
forth above in lhis section, which from the character and use of lhe Properly 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 wrilten consent, of all or any pad 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 Properly; whether legal, beneficial or equitable; whether
voluntary or involuntary; whelher 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 1o any land trust holding lille to the Real
Properly, or by any other method of conveyance of an interest in the Real Properly. However, this option shall not be exercised by Lender if such
exercise-is prohibited by federal law or by Montana law.
TAXES AND LIENS. The following provisions relating to the taxes and liens on lhe Property are part'of this'Mortgage:
Payment. Grantor shall pay when due (and in all events prior to delinquency) all taxes, payroll taxes, special taxes, assessments, water charges
and sewer service charges levied against or on account of the Property, and shall pay when due all claims for work done on or for services
rendered or material furnished to the Property. Grantor shall maintain lhe Property free of any liens having priority over or equal to the interest of
Lender under this Modgage, except for those liens specifically agreed 1o in writing by Lender, and except for the lien of taxes and assessments not
due as further specified in the Right to Contest paragraph.
Right to Contest. Grantor may withhold payment of any tax, assessment, or claim in connection with a 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 fifteen
(15) days after the lien arises or, if a lien is filed, within fifteen (15) 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'sufficienl corporate surety bond or other security satisfactory lo Lender in an amount sufficient
to discharge the lien plus any costs and 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 shall upon demand~furniSh to'Lender satisfactory evidence Of payment'of the taxes'o~-::aSseS§ments and shall
authorize lhe 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 work is commenced, any services are furnish~, or any
malerials are supplied 1o the Property, if any mechanic's lien, malerialmen's lien, or other lien could be asserted on account of the work, services,
or materials. Grantor will upon request of Lender furnish 1o 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 Mortgage:
Maintenance of Insurance. Grantor shall procure and maintain policies of fire insurance with standard extended coverage endorsements on a
replacement basis for the full insurable value covering all Improvements on the Real Properly in an amount sufficient to avoid application of any
coinsurance clause, and wilh a standard mortgagee clause in favor of Lender. Grantor shall also procure and maintain comprehensive general
liability insurance in such coverage amounts as Lender may request wilh Lender being named as additional insureds in such liability insurance
policies. Additionally, Grantor shall maintain such other insurance, including but not limited to hazard, business inlerruption and boiler insurance
as Lender may require. Policies shall be written by such insurance companies and in 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 writlen notice lo 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 Properly 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 Iocaled in a special flood hazard area, for the full unpaid principal balance of the
loan and any prior liens on the properly securing lhe loan, up to the maximum policy limits set under the National Flood Insurance Program, or as
olherwise required by Lender, and to maintain such insurance for the term of lhe loan.
Application of Proceeds. Grantor shall promptly notify Lender of any loss or damage to the Properly. Lender may make proof of loss if Grantor
fails to do so within fifteen (15) days of lhe 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 lhe proceeds to lhe reduction of the Indebtedness, payment of any lien affecting the Property, or
the restoration and repair of the Properly. If Lender elects to apply the proceeds to restoration and repair, Grantor shall repair or replace the
damaged or destroyed Improvements in a manner satisfactory to Lender. Lender shall, upon satisfactory proof of such expenditure, pay or
reimburse Grantor from the proceeds for the reasonable cost of repair or restoration if Grantor is not in default under this Mortgage. 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 ProPe~-ty
shall, be used first to pay any amount owing to Lender under this Modgage, then to pay accrued interest, and the remainder, if any, shall be
applied to the principal balance of the Indebtedness. If Lender holds any proceeds after payment in full of the IndebtednesS, such proceeds shall
be paid to Grantor as Grantor's interests may appear.-:~
Grantor's Reporl on Insurance. Upon request of Lender, however not more than once a year, 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 replacemenl value of such property, and the manner of determining that value; and (5) the expiration date of the policy. Grantor
shall, upon request of Lender, have an independent appraiser satisfactory to Lender determine lhe cash value replacement cost of the Property.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would materially affect Lender's interest in the Property or if Granlor fails
to comply with any provision of lhis Modgage or any Related Documents, including but not limited lo Grantor's failure to discharge or pay when due
any amounls Grantor is required to dischai'ge or pay under this Mortgage or any Related Documents, Lender on Grantor's behalf may (but shall not be
obligated to) take any action that Lender deems appropriate, including but not limited to discharging or paying all taxes, liens, security interests,
encumbrances and other claims, at any lime levied or placed on the Property and paying all costs for insuring, maintaining and preserving the Property.
All such expenditures incurred or paid by Lender for such purposes will then bear interest at the rate charged under the Note from the date incurred or
paid by Lender to the date of repayment by Grantor. All such expenses will become a part of the Indebtedness and, at Lender's option, will (A) be
payable on demand; (B) be added to the balance of the Note and be apportioned among and be payable with any installment payments lo become
due during either (1) the term ct any applicc, ble insurance policy; or (2) Ihe remaining term of the Note; or (C) be lrealed as a balloon payment
which will be due and payable at the Note's maturity. 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 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 lhe Property in fee simple, free and clear of all liens and
encumbrances other than those set forth in the Real Property description or in any title insurance policy, title report, or final title opinion issued in
favor of, and accepted by, Lender in connection with this Mortgage, and (b) Grantor has the full right, power, and authority 1o execute and deliver
this Mortgage to Lender.
Defense of Title. Subject to the exception in the paragraph above, Grantor warrants and will forever defend the title to the Property against the
lawful claims of all persons. In the event any action or proceeding is commenced lhat queslions 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 lo be delivered, lo Lender such instruments as Lender may request from lime to lime to permit such participation.
Compliance wiih Laws. 'Grantor warr:ants'that ihe.~Pr~perty and Grantor's u~e 0f tl~e Propert~ 'complies with ~li existing a'pplicable laws,
. ,.. ordinances and.regrulations of governmental authorities. ,. ,
Survival of Representations and Warranties. All representations, warranties, and agreemenls made by Grantor in this Mortgage shAll"~urvive
the execution and delivery of this Mortgage, shall be continuing in nature, and shall remain in full force and effect until such time as Grantor's
Indebtedness shall be paid in full.
CONDEMNATION. The following provisions relating to condemnation proceedings are a part of this Mortgage:
Proceedings. If any proceeding in condemnation is filed, Grantor shall promptly notify Lender in writing, and Grantor shall promptly take such
steps as may be necessary to defend the action and obtain the award. Grantor may be the nominal party in such proceeding, but Lender shall be
Loan No: 803451
?MQRTGAGE
- ": .~'(C6ntinued)';i'.
Page 3
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 requested by Lender from time to time to permit such participation.
Application of Nel Proceeds. If all or any pad of the Properly 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 podion of the net proceeds of the award be applied to the Indebtedness
or the repair or restoration of the Property. The net proceeds of lhe award shall mean the award after payment of all reasonable costs, expenses,
and 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, Grantor shall ~xecute such documents in addition to.this Mortgage and take
whatever other action is 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 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 Indebtedness secured by this Mortgage; (2) a specific tax on Grantor which Grantor is authorized or required to deduct from payments on
the Indebtedness secured by this type of Mortgage; (3) a tax on this type of Mortgage chargeable against the Lender or the holder of the Note;
and (4) a specific tax on all or any portion of the Indebtedness or on payments Of principal and interest made by Grantor.
Subsequent Taxes. If any tax to which this section applies is enacted subsequent to the date of this Mortgage, this event shall have the same
effect as an Event of Default, and Lender may exercise any or all of its available remedies for an Event of Default as provided below unless Grantor
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 satisfactory to Lender.
SECURITY AGREEMENT; FINANCING STATEMENTS. 'The following Provisions relating to this M°rtgage'c;s'a {ecurity agr~ement.are a"P'art of this
Security Agreement..This instrument sha const tute a Security Agreement to the extentany of the Properly.constitutes fixtures, and.Lender shall
have all of the rights of a secured pady under the Uniform Commercial Code as amended from time to time .... :,
Security Interest. Upon request by Lender, Grantor shall take whatever action is requested by Lender to pedect and continue Lender's security
interest in the Rents and Personal Property..In addition to recording this Mortgage in the real properly records, Lender may, at any time and
without further authorization from Grantor, file executed counterpads, copies or reproductions of this Modgage as a financing statement. Grantor
shall reimburse Lender for all expenses incurred in perfecting or continuing this security interest. Upon default, Grantor shall not remove, sever or
detach the Personal Properly from the Properly. Upon default, Grantor shall assemble any Personal Property not affixed to the Properly in a
manner and at a place reasonably convenient 1o Grantor and Lender and make it available to Lender within three (3) days after receipt of written
demand from Lender to the extent permitted by applicable law.
Addresses. The mailing addresses of Grantor (debtor) and Lender (secured pady) from which information concerning the security interest
granted by this Mortgage may be obtained (each as required by lhe Uniform Commercial Code) are as stated on the first page of this Mortgage.
FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating to fudher assurances and attorney-in-fact are a part of this
Modgage:
Further Assurances. At any time, and from time to time, upon request of 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, 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 appropriate, any and all subh modgages,
deeds of trust, security deeds, security agreements, financing statements, continuation statements, instruments of fudher assurance, certificates,
and other documents as may, in the sole opinion of Lender, be necessary or desirable in order to effectuate, complete, perfect, continue, or
preserve (1) Grantor's obligations under the Note, this Modgage, and lhe Related Documents, and (2) the liens and security interests created
by this Mortgage as first and prior liens on the Properly, whether now owned or hereafter acquired by Grantor, Unless prohibited by law or Lender
agrees Io the contrary in writing, Grantor shall reimburse Lender for all costs and expenses incurred in connection with the matters referred to in
this paragraph.
Attorney-in-Fact. If Grantor fails to do any of the things referred to in the preceding paragraph, Lender may do so for and in the name of Grantor
and al Grantor's expense. For such purposes, Grantor hereby irrevocably appoints Lender as Grantor's attorney-in-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 opinion, to
accomplish the matters referred to in the preceding paragraph.
FULL PERFORMANCE. If Grantor pays all the ndebtedness when due, and otherwise performs all the obligations imposed upon Grantor under this
"~3~:ig~, Lender shall execute and deliver to GrahtOr a suitable satisfaction'Of this Mortgage and suitable statements of termination of any financing
statement on file ev!¢~,n.cing Lepder's sequrity' ipte, rest.in.the Rents and the Personal Property. Grantor' will payi'if permitted by applicable law, any
reasonable terminali'0~ fee as determin'~:d by E~der fi:om't me'to t me ' : . ~ ' · '
EVENTS OF DEFAULT. Each of the following, at Lender's option, shall constitute an Event of Default under lhis Mortgage:
Payment Default. Grantor fails to make any payment when due under the Indebtedness, ' , ' : . ; ; · · :
Default On Other Payments. Failure of Gr~nt0r Within the time required by this Mortgage to make any payment for taxes"°r insu'ra~Ce~ or any
other payment necessary to prevent filing of or to effect discharge of any lien..
Other Defaults. Grantor fails to comply with or to perform any other term, obligation, covenant or condition contained in this Mortgage or in any of
the Related Documents or to comply with or to pedorm any term, obligation, covenant or condition contained in any other agreement between
Lender and Grantor.
False Slalements. Any warranty, representation or statement made or furnished to Lender by Grantor or on Grantor's behalf under this Mortgage
or the Related Documents 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 Collaterallzation. This Mortgage or any of the Related Documents ceases to be in full force and effect (including failure of any collateral
document to create a valid arid perfected security interest or lien) at any time and for any reason .......
Insolvency. The dissolution or termination of the Trust, the insolvency of Grantor, the appointment of a receiver for any part of 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 Grantor.
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 Grantor or by any governmental agency against any property securing the Indebtedness.
This includes a garnishment of any of Grantor's accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply
if there is a good faith dispute by Grantor as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding
and if Grantor gives Lender written notice of the creditor or forfeiture proceeding and 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 Olher Agreement. Any breach by Grantor under the erms of any other agreement between GraPto[ and Lender that is not remedied
within any grace period provided therein; including Without.limitation any ~gr~e~en,t..~on. cerning ianyl.io.debte,d..ness qr Other, obligation qf G~;~ntor to
Lender, whether existing nOw or later.:. '' :' ::~ ; ' ~ ' ~' ' ' ....................
Evenls Affecting Guaranlor. Any of the preceding events occurs with respect to any guarantor, endorser, surety, or accommodation party of any
of the Indebtedness or'any guarantor, endorser,' surety, or accommodation party dies or becomes incompetenl or revOkes or disputes th~ validity
of, or liability under, any Guaranty of the Indebtedness. In the event of a death, Lender, at its option, may,:bUt shall not be required to, pe?mit the
guarantor's estate to assume unconditionally the obligations-arising under the guaranty in a manner satisfactory to Lender, and, in doing so, cure
. any Event of Default. '
Adverse Change. A material adverse change occurs in Grantor's financial condition, or Lender believes the prospect of payment or performance
of the Indebtedness is impaired.
Insecurity. Lender in good faith believes itself insecure.
Right to Cure. If any default, other than a default in payment is curable and if Grantor has not been given a notice of a breach of the same
Loan No: 803451
(ContinUed) Page 4
provision of this Mortgage Within the preceding twelve (12) months, it maY be cured if Grantor, after receiving written notice from Lender
demanding cure of such default: (1) cures the~.-d~lault wilhin fifteen (15) days; or (2) if the cure requires more lhan fifteen (15) days, immediately
initiates steps which Lender deems in Lender's sole discretion lo be sufficienl to cure lhe default and thereafter continues and completes all
reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical.
RIGHTS AND REMEDIES ON OEFAULT. Upon the occurrence of an Event of Defaull 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 law:
Accelerate Indebledness, Lender shall have the right al its option wilhout notice lo Grantor to declare lhe entire Indebtedness immediately due
and payable, including any prepayment penalty which Grantor would be required to pay.
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 Properly and collect the Rents, including amounts
past due and unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness. In furtherance of lhis right, Lender
may require any tenant or other user of lhe Property to make payments of rent or use fees directly 1o 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, 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 1o have a receiver appoinled to take possession of all or any part of the Properly, with the power 1o
protect and preserve the Property, to operate lhe Properly preceding foreclosure or sale, and to collect the Rents from the Property and apply the
proceeds, over and above the cost of the receivership, againsl the Indebtedness. The receiver may serve without bond if permitted by law.
Lender's right to lhe appoinlment of a receiver shall exist whether or not the apparent value of the Property exceeds the Indebtedness by a
substantial amount. Employment by Lender shall not disqualify a person from serving as a receiver.
Judicial Foreclosure. Lender may obtain a judicial decree foreclosing Grantor's interest in all or any pad of the Property~
Nonjudicial Sale. If permitted by applicable law, Lender may foreclose Grantor's interest in all or in any part of the Personal Properly or the Real
Property by non-judicial sale,
Deficiency Judgmenl. If permitted by applicable law, Lender may obtain a judgment for any deficiency remaining in the Indebtedness due to
Lender after application of all amounts received from the exercise of the rights provided in this section. '
Tenancy al Sufferance. If Grantor remains in possession of the Properly after the Property is sold as provided above or Lender otherwise
becomes entitled to possession of the Property upon default of Grantor, Grantor shall become a tenant at sufferance of Lender or the purchaser
of the Properly 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 demand of Lender.
Other Remedies. Lender shall have all other rights and remedies provided in this Modgage or lhe Note or 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 pad of the Property together or separately, in one sale or by separate
sales. Lender shall be entitled to bid at any public sale on all or any podion 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 lhe time after
which any private sale or other intended disposition of the Personal Properly is to be made. Reasonable notice shall mean notice given at least
len (10) days before lhe time of ~he sale or disposilion. Any sale ol the Personal Property'may be made in cor~junctiOn 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 lo make
expenditures or to take action to perform an obligation of Grantor under this Mortgage, after Grantor's failure to perform, 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 lhe 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, guarantor, surety or endorser and/or to proceed against any other collateral directly or
indirectly securing the Indebtedness.
Attorneys' Fees; Expenses, If Lender institutes any suit or action lo enforce any of the terms of this Mortgage, Lender shall be entitled to recover
such sum as the court may adjudge reasonable as attorneys' fees al trial and upon any appeal. Whether or not any court action is involved, and
to the extent not prohibited by law, all reasonable expenses Lender incurs thai in Lender's opinion are necessary at any time for the protection of
its interest or the enforcement of its rights shall become a pad of the Indebtedness payable on demand and shall bear interest at the Note rate
from the date of the expenditure until repaid. Expenses covered by this paragraph include,' without limitation, however subject to any limit,s under
applicable law, Lender's attorneys' fees and Lender's legal expenses, whether or not there is a lawsuit, including 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, lhe cost of searching records, obtaining title repods (including foreclosure repods), surveyors' reporls, and appraisal fees and
title insurance, to the extent permitted by applicable laWl 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 mailedl When deposited in the United States mail, as first class, cedified or registered mail postage
prepaid, directed to the addresses shown near the beginning of this Modgage. All copies of notices of foreclosure from the holder of any lien which
has priority over this Mortgage shall be senl to Lender's address, as shown near the beginning of lhis Modgage. Any pady may change its address for
notices under this Modgage by giving formal written notice to the olher 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 lo any Grantor is deemed to be notice given to all Grantors.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a pad of this Modgage:
Amendments. This Mortgage, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the
matters set fodh in this Mortgage. No alteration of or amendment to this Modgage shall be effective unless given in writing and signed by the
party or parties sought to be charged or bound by the alteration or .~mendment. . ..
Annual Reporls. If the Properly is used for purposes other than Grantor's residence, Grantor shall furnish to Lender, upon request, a certified
statement of net operating income received from the Properly during Grantor's previous fiscal year in such form and detail as Lender shall 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 Modgage are for convenience purposes only and are not to be used to interpret or define the
provisions of this Mortgage.
Governing Law. Thls Mortgage will be governed by federal law appllcable to Lender and, to the extent not preempted by federal law, the
laws of the State of Montana without regard to its conflicts of law provisions. This Mortgage has been accepled by Lender In the State of
Monlana.
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 discrelion of Lender.
Severability. If a court of competent jurisdiction finds any provision of this Modgage 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 taw, the illegality, invalidity, or unenforceabitity of any provision of
this Mortgage shall not affect the legality, validity or enforceability of any other provision of this Modgage.
Loan No: 8b3451 ~
:~;MORTGAGE
, · Page 5
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 Properly becomes vested in a person other than Grantor,
Lender, withoul notice to Grantor, may deal with Grantor's successors with reference to this Modgage and the Indebtedness by way of
forbearance or extension without releasing Grantor from the obligations of this Modgage or liability under the Indebtedness.
Time is of the Essence. Time is of the essence in the performance of this Modgage.
Waiver of Homestead Exemption. Grantor hereby releases and waives all rights and benefits of the homestead exemption Jaws of the State of
Montana as to all Indebtedness secured by this Modgage .... , · . · -.
DEFINITIONS. The following caPitalized words and terms shall have the following meanings when used in this Modgage. Unless specifically stated to
the contrary, all references to dollar 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 terms not otherwise defined in this
Modgage shall have the meanings attributed to such terms in the Uniform Commercial Code:
Borrower. The word "Borrower" means Wendell Harris Profit Sharing Plan and includes ail co-signers and co-makers signir~g the Note.
Default. The word "Default" means the Default set fodh in lhis Mortgage in the section titled "Default".
Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statutes, regulations and ordinances relating to
the protection of human health or the environment, including 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 6901, et seq., or other applicable 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 fodh in this Modgage in the events of default section of this
Mortgage. .
. .. '.' ?~ ~:;'. :...'i i::;;'." ?' ii~` ;,'; i,.-,i:. ,::,~ ~,':,i ':.) '.'~ :,''i.. :~'.~.i '., ~N~ ~!:,~,~i,.~,:~-',. ,. .~ ) ;~, r~ ~i ?'i" ,::' ~!-~ ~.!
Grantor. The word "Grantor" means Wendell Harris Profit Sharing Plan. .
· . Guaranty. The word "Guaranty" means the guaranty from guarantor, endorser, surety, or accommodation party to Lender, including without
limitation a guaranty of all or part of the Note.
Hazardous Substances. The words "Hazardous Substances" mean materials that, because of their 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 handled. 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 under the
Environmental Laws. The term "Hazardous Substances" also includes, without limitation, petroleum and petroleum by-products or any fraction
thereof and asbestos.
Improvements. The word "Improvements" means all existing and future improvements, buildings, structures, mobile homes affixed on the Real
Property, facilities, additions, replacements and other construction on the Real Property.
Indebtedness. The word "Indebtedness" means all principal, interest, and other amounts, costs and expenses payable under the Note or Related
Documents, together with all renewals of, extensions of, modifications of, consolidations of and substitutions for the Note or Related Documents
and any amounts expended Or advanced by Lender to d scharge Grantor's obligation~ or expenses incurred bY Lender to enforce Grantor's
obligations under this Mortgage, t~'gether Wiih' 'inierest ~0~ ~suCh' amounts as' p~0Vided in this ;M0~gage;' SpeCificall~,,'witho~Jt limitation,
Indebtedness includes all amounts that may be indirectly secured by the Cross-Collateralization provision of this Mortgage.
Lender. The word "Lender" means Rocky Mountain Bank - Whitehall, its successors and assigns.
Mortgage. The word "Mortgage" means this Mortgage between Grantor and Lender.
Note. The word "Note" means the promissory note dated February 18, 2005, in the original principal amount of $101,441.00 from
Grantor to Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the
promissory note or agreement. The maturity date of this Mortgage is February '18, 2006. NOTICE TO GRANTOR: THE NOTE CONTAINS A
VARIABLE INTEREST RATE.
Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter owned
by Grantor, and now or hereaffer attached or affixed to the Real Property; together with all accessions, parts, and additions to, all replacements of,
and all sUbstitutions for, any of such property; and together with all proceeds (including without limitation all insurance proceeds and refunds of
""~"-'~'p'~r'(~iums) from any sale or other ~isposition of the ProPerty.:
Property..The word "Properly" means collectively the Real Property and the Pers'onal Propertyl
Real Prope~:ty. The Words "Real Properly" mean ti1e rea p~-0pedyl inte~:e~t~ and ~:ghtS a,~ further desCribed inthiS Mortgagel <~.. .
Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, .environmental
agreements; guaranties, ·security ,~greementsl m0rtgagesl~ :deeds of trust, ~ecurity deeds, collateral modgages, and all other instruments
agreements and documents, whether now or hereaffer existing, executed in connection with the Indebtedness.
Ranis. The word "Rents" means all present and future rents, revenues, income, issues, royalties, profits, and o{her benefits derived from the
Property.
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND GRANTOR AGREES TO ITS TERMS.
Wen~tl~'Ra~s, Trustee of Wendell Harris Profit
Sharir~g Plan~~
Loan No: 803451
MORTGAGE
(Continued) Page 6
..-TRUST ACKNOWLEDGMENT
STATE OF Montana
COUNTY OF Jefferson
This instrument was acknowledged before me on
Harris Profit Sharing Plan.
2-18-05
)
) ss
)
,20 by Wendell Harris, Trustee of Wendell
Virginza M. Miller ~
[Type or Print Name]
Notary Public for the State of Montana
Residing at Whitehall, Mt.
My commission expires 10/30/2007
LASER PRO Lending. ver. 5.2$.20.003 Copt HarlandF,ancill$olutlons. lnc. 1997 2005. AIIRighlsReserved. -MT c:&APPStCFI~LPL~GO3.FC TR-Igg3 PR-16