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HomeMy WebLinkAbout95- Farmhouse Partners Water Main Extension Agreement, 1995 i 'j .1'_ .. j" " ~ I" " .' I:- WATER MAIN EXTENSION AGREEMENT ~ THIS AGREEMENT, made and entered into this 10 'f/; day of ~J/E/}J/JtR ,1995, by and between FARMHOUSE PARTNERS-BOZEMAN LIMITED PARTNERSHIP, hereinafter referred to as "FARMHOUSE PARTNERS-BOZEMAN" , and the CITY OF BOZEMAN, hereinafter referred to as "CITY" , WITNESSETH: WHEREAS, Farmhouse Partners-Bozeman submitted a Conditional Use Permit application to the City for approval to construct a twenty-four (24) unit apartment complex consisting of twenty-four (24) two bedroom apartment units in two (2 ) three-story buildings on Lot 1 of Minor Subdivision #162, situated in the Southeast Quarter of Section 8, Township 2 South, Range 6 East, P.M,M, , Gallatin County, Montana, according to the official plat of record with the County Clerk and Recorder. This project is commonly referred to as Comstock Apartments; WHEREAS, the Comstock Apartments are designed to be leased to tenants earning sixty percent ( 60%) or less of Gallatin County's median household income, pursuant to the Low Income Housing Tax Credit Program; WHEREAS, City water is necessary to insure that safe domestic water and adequate fire protection is provided; WHEREAS, the Bozeman City Commission on October 3, 1994 approved the Conditional Use Permit for the Comstock Apartments with twenty-seven (27 ) conditions; WHEREAS, Condition No. 2 requires Farmhouse Partners-Bozeman to provide City water to the site prior to issuance of any building permits; WHEREAS, the City has authorized a dead-end extension of the water main in order to serve this project; WHEREAS, there is a shortage of affordable housing in Bozeman; WHEREAS, this Agreement will assist Farmhouse Partners-Bozeman in making some additional affordable housing available in Bozeman by extending Farmhouse Partners-Bozeman's time for payment of the construction costs for the water main extension; WHEREAS, the extension of the water main directly benefits the Comstock Apartments by making City services available to the property, Water Main Extension Agreement Page 1 , I . I ,. . ~ j., ~ j', IJ -( ~ \ . .," " I ~ ... NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROMISES BETWEEN THE PARTIES HERETO, IT IS MUTUALLY AGREED THAT: 1. Farmhouse Partners~Bozeman will extend, at its own cost in accordance with paragraph 2 below, the City's water main to the Comstock Apartment site from the Life of Montana property in accordance with Condition No. 2 of its Conditional Use Permit and in accordance with City standards and specifications, which specifications will become Exhibit "A" and part of this Agreement at the time said specifications are finalized. Said costs for extending the water main are hereinafter referred to as "development charges". Prior to extending this water main, Farmhouse Partners-Bozeman will provide the City with a "not-to- exceed" bid which itemizes all cost components of the water main extension. The bid and the contractor shall be approved by the City within seven (7) days of receipt of the bid and said approval shall not be unreasonably withheld. However, failure of the City to respond within seven (7) days shall not constitute a breach of this Agreement. 2. Farmhouse Partners~Bozeman will pay, pursuant to the terms of its contract with the contractor, all costs of extending the water main with 8" pipe and the appropriate fittings for such pipe, Per the plans, 10" pipe and the appropriate fittings will be used for the water main extension, with the City paying the incremental costs associated with installing the oversized pipe. The contractor's bid will delineate clearly the incremental costs of installing oversized pipe. 3. The City agrees under Paragraph NO.2 to make a loan in the principal amount of $70,000 to be repaid as provided in paragraph 4 of this agreement. This loan is evidenced by promissory note executed by Farmhouse Partners-Bozeman. A copy of the note is attached as Exhibit "B", and by this reference is made a part hereof. 4. Farmhouse Partners-Bozeman agrees to make payments on this loan as follows: 1996 - $0 1997 - $0 1998 - $2,500 1999 - $3,000 2000 - $4,000 2001 - $4,000 2002 - $4,500 2003 - $4,500 2004 ~ $5,500 2005 - $6,000 2006 - $7,000 2007 - $7,000 2008 - $7,000 Water Main Extension Agreement Page 2 . . , , 4 i I % " I I i , j , ~ ~ 2009 - $7,000 2010 - $8,000 Commencing in calendar year 1998, Farmhouse Partners-Bozeman agrees to make the reimbursement payments in equal, semi-annual, payments with each payment being due on or before the sixth day of January and the sixth day of July, respectively. Should any payment be received after its due date, then the entire remaining balance shall bear interest thereon from the due date of the payment at the rate of ten percent (10%) per annum until the entire remaining balance is paid in full. If all payments are made timely, there will be no accrual of interest. 5 . Farmhouse Partners-Bozeman further agrees that the amount of the loan shall constitute a lien against Comstock Apartments and the real property. As security for the performance of this Agreement, Farmhouse Partners will grant a security interest to the City in the real property described above and in the Third Priority Trust Indenture, attached hereto as Exhibit "C" which by this reference is made a part hereof. The City agrees that this security interest is subordinate to both a first mortgage loan and a contract land seller's second position trust indenture. Should Farmhouse Partners-Bozeman default in repayment of the loan, the City may resort to this property and engage in any remedies provided by the laws of the state of Montana, including foreclosure. 6 . If any of the following events occur, the City may, 1n its sole discretion, declare such event a default under this Agreement: a. Any representation or warranty made by Farmhouse Partners-Bozeman in this Agreement or in any request for certificate or other information furnished to the City hereunder proves to have been incorrect in any material respect; b. Farmhouse Partners-Bozeman fails in any material respect to carry out its obligations to construct the water main for which the loan is provided hereunder until the water main 1S completed and accepted by the City; c. Farmhouse Partners-Bozeman defaults in the payment of any indebtedness for any money borrowed under this agreement; d. Farmhouse Partners-Bozeman applies for or consents to the appointment of a receiver, trustee or liquidator, admits in writing to its inability to pay its debts as they become due, makes a general assignment for the benefit of creditors, or invokes any relief under the Chapter of the United States Bankruptcy Code; Water Main Extension Agreement Page 3 .- II ..I t I! \ . If _ j" r ~ I I I , e. Farmhouse Partners-Bozeman fails to pay all local real and personal property taxes specific to the property; f. Farmhouse Partners-Bozeman violates any term, assurances or conditions of this Agreement. In the event that Farmhouse Partners-Bozeman fails to make timely payments under this Agreement, or perform any of the covenants on its part, or in the event a default occurs as stated above, the City may declare Farmhouse Partners-Bozeman to be in default and thereafter give Farmhouse Partners-Bozeman written notice setting forth the action or inaction which constitutes the default and giving Farmhouse Partners-Bozeman thirty (30) days in which to correct the default. If Farmhouse Partners-Bozeman fails to correct the default within thirty (30) days of this notice, the City may notify Farmhouse Partners-Bozeman in writing that the full balance due upon the note is then due and payable in full within sixty (60) days. It is agreed by the parties hereto that the provisions of this Agreement provide reasonable and sufficient notice to be given to Farmhouse Partners-Bozeman in case of Farmhouse Partners-Bozeman' failure to perform any of its covenants and that this notice is sufficient for Farmhouse Partners-Bozeman to rectify its actions or inactions of default. Any waiver by the City of any default by Farmhouse Partners-Bozeman does not constitute a waiver of a continuing breach or waiver of a subsequent breach. Any agreement contrary to this Agreement is not binding upon either party hereto unless it is in writing and signed by both parties. 7. The water main extension shall become the property of the City upon completion and acceptance by the City. Farmhouse Partners-Bozeman-Bozeman shall obtain and execute all necessary and pertinent easements, documents of ownership and transfers requested by the City. 8. All documents and materials concerning the construction of the water main prepared under this Agreement shall become the property of the City upon acceptance of the water main extension. Such documents and materials shall be promptly delivered to the City upon demand and thereafter may be used by the City, in whole or in part. 9. This Agreement is not assignable by Farmhouse Partners- Bozeman without written consent of the City, said consent not to be unreasonably withheld. 10. All notices to be given hereunder by either party hereto shall be in writing and given by personal service or first class mailing utilizing registered or certified mail, return receipt requested. Said method of notice is deemed sufficient service thereof, and shall be deemed given as to the date when served or deposited in any post office. Either party may change address by Water Main Extension Agreement Page 4 A /' ,i , t- j I "\" .4.: t'. ~ It J' j written notice by certified or registered mail to the other. The initial address for receipt of notice is as follows: Farmhouse Partners-Bozeman City of Bozeman P.O. Box 1746 P.O. Box 640 Bozeman, MT 59771-1746 Bozeman, MT 59771-0640 11. This Agreement shall be binding upon the heirs, personal representatives, successors and assigns of the parties. 12. In the event that it becomes necessary for any party to this Agreement to retain an attorney to enforce any terms or conditions of this Agreement, then the prevailing party or parties shall be entitled to costs and reasonable attorney's fees, including fees of in-house counselor City Attorney costs and including fees and costs on appeal. 13. A waiver of any breach or default by either party shall not be a waiver of any other breach or default. Nothing contained in this Agreement shall limit the remedies or rights of the parties hereto under and pursuant to this Agreement. 14. The parties hereby agree that any amendments or modifications to this Agreement, or any provisions herein, shall be made in writing and executed in the same manner as the original document and shall, after execution, become part of this Agreement. 15. This Agreement shall be construed under and governed by the laws of the State of Montana. In event of litigation concerning it, venue is in the Eighteenth Judicial District in and for the County of Gallatin, State of Montana. 16. The partner of Farmhouse Partners-Bozeman executing this agreement, promissory note and trust indenture certifies that the partner has full authority to enter into this agreement and to execute said documents on behalf of Farmhouse Partners-Bozeman. 17. The provisions of this agreement shall be deemed independent and severable, and the invalidity, partial invalidity, or unenforceability of anyone provision or portion thereof shall not affect the validity or enforceability of any other provision herein. Water Main Extension Agreement Page 5 .A I' .... ~ .' I'. t. t .1" '\ . .I. I . FARMHOUSE PARTNERS-BOZEMAN LIMITED PARTNERSHIP BY FAR USE PARTNERS LIMITED PARTNERSHIP, ITS GEN PARTNER: By: THE AB Y 0 Y, OF FARMHOUSE PARTNERS PARTNERSHIP WILLIAM C. DABNEY III, PRESIDENT CITY OF BOZEMAN ~ . J" I, ~) '-'-~ 6, l ~4A't~" Jam s E. Wysocki ~ City Manager ATTEST: ~J~ Robin L. Sullivan Clerk of Commission STATE OF MONTANA ) ) ss. County of Gallatin ) On this 1/)111 day of A/tJ-I/EA1/1~/!! , 1995, before me, the undersigned, a Notary Public for the State of Montana, personally appeared William C. Dabney III, known to me to be the President of The Dabney Company, General Partner of Farmhouse Partners Limited Partnership and acknowledged to me that he executed the within instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) ~~d,~ Nota l' for the State of /J'JT Montana~ r,:,siding. at ~q";J; 1;9. - My Commlsslon Explres / 4 I Water Main Extension Agreement Page 6 ~ . . . > , ." \ ( . . I , I ' , ~ STATE OF MONTANA ) ) ss. County of Gallatin ) On this /</'jI) day of )1/ J..tA.t:'J~x....ILl...'L.. , 1995, before me, the undersigned, a Notary Public for the State of Montana, personally appeared JAMES E. WYSOCKI and ROBIN L. SULLIVAN, known to me to be the City Manager of the City of Bozeman and the Clerk of Commission of the City of Bozeman acknowledged to me that they executed the within instrument for and on behalf of the City of Bozeman. IN WITNESS WHEREOF, I have set my hand and affixed my Notarial Seal the day and year ve written. --( SEAL) L/ ~/ , ,...~ dii,t C~--tCt/G "X '~C--i,---, otary Public for the State of c...-- Montana, residing at Bozeman My Commission Expires tb -/f 99 Water Main Extension Agreement Page 7 ---- ------.--- ~ , " \" I' 1 ( . I . . , ~ . , PROMISSORY NOTE i/otlE/I'M&. $70,000.00 BOZEMAN, MONTANA Oetober ~, 1995 FOR VALUE RECEIVED, the undersigned, hereinafter called "Borrower", promises to pay to the order of CITY OF BOZEMAN, a Montana municipal corporation, hereinafter called "City", negotiable and payable to payee at 411 East Main Street, Bozeman, Montana, the principal sum of SEVENTY THOUSAND AND NO/100 DOLLARS ($70,000.00) . Equal semi-annual payments of principal shall be made on or before the sixth day of January and the sixth day of July, respectively, according to the following schedule: 1996 - $0 1997 - $0 1998 - $2,500 1999 - $3,000 2000 - $4,000 2001 ~ $4,000 2002 - $4,500 2003 - $4,500 2004 - $5,500 2005 - $6,000 2006 - $7,000 2007 - $7,000 2008 - $7,000 2009 - $7,000 2010 - $8,000 should any payment be received after its due date, then the entire remaining balance shall bear interest thereon from the due date of the late payment, at the rate of ten percent (10%) per annum until the remaining balance is paid in full and all subsequent semi- annual payments shall include this interest. The Borrower shall have the right to pay, in addition to any semi-annual installment, any additional sum or to pay the entire balance remaining due at any time. Such payments shall not relieve Borrower from making the next regularly scheduled payment. Payments made shall be credited first to the discharge of interest accrued and the balance to the payment of principal. In the event of default in the payment of any installment under this Note, and if the default remains uncured for more than Thirty (30) days after second written notice thereof to Borrower, then upon nonpayment thereof after notice in writing to Borrower, the entire principal sum and accrued interest shall at once become due and payable in full within sixty (60) days from said second notice. Failure to exercise this option shall not constitute waiver of the right to exercise the same in the event of any subsequent default. In the event of default, it is agreed that the Holder of this Note may recover such necessary expenses as may be incurred in collection, including reasonable attorney's fees, which reasonable attorney's fees include expenses and fees of the City Attorney, --------. . , I y " " T . 1 ' . . , , l . .. including fees on appeal, The Makers consent to any and all extensions of time, renewals, waivers or modifications that may be granted by the Holder hereof, with respect to payment of security, or any part thereof, with or without substitutions. This Note is secured by a third position Montana Trust Indenture of even date herewith, upon real estate situated in the County of Gallatin, State of Montana, and generally described as follows: Lot 1 of Minor Subdivision #162, situated ln the Southeast Quarter of Section 8, Township 2 South, Range 6 East, P.M.M, , Gallatin County, Montana, according to the official plat of record with the County Clerk and Recorder. All notices to be given hereunder by either party hereto shall be in writing and given by personal service or first class mailing utilizing registered or certified mail, return receipt requested. Said method of notice is deemed sufficient serVlce thereof, and shall be deemed given as to the date when served or deposited in any post office. Either party may change address by written notice by certified or registered mail to the other. The initial address for receipt of notice is as follows: Farmhouse Partners- City of Bozeman Bozeman P.O. Box 640 P.O. Box 1746 Bozeman, MT 59771-0640 Bozeman, MT 59771-1746 FARMHOUSE PARTNERS - BOZEMAN LIMITED PARTNERSHIP BY FARMHOUSE PARTNERS LIMITED PARTNERS~ENERAL PARTNER . By: THE D 0 AN , PARTNER OF FARMHOUSE PARTNERS LIMITED PARTNERSHIP WILLIAM C. DABNEY, III PRESIDENT .. , , .. .. .' 't ' ' ~ r , , . , ' . FORM 25-STOCK FORM STATI rUILisM'''_ co.. MlLi"A. ...It. MONTANA TRUST INDENTURE . (J tA dl.Rt; 4. .~ 'l."- THIS TRUST INDENTURE, Made thlS.../..........day oL.... . .. g .t.. .............................___., 19n ..~, bet weelL-_....f.g,x:mh..Q.l,HHL.P'g.X.tner.S.':":'.B..Q.~.eman.Limi:ted...Pal::tner.~d$ mailing address is p....C... ---B.ox...~.7.4. 6. Tm.BO.z emanT-..Mon tana... 59.'t.7.~:-:-.1.:r4.Gun" ...." "m.mm.... on..m u................................ .. m..................................................... ......, as G RANTa R, ..nn .....J?g..1J.l...M.L..Muw.e -1... J~Q~.em.9J}...~. ;t.t-y.. ........ At:t orne.f................ . ........................................................ ,........ ...........................................................................,........ 0.. .......m.................... ....................... .....m...' wi th principal offi ce a LA.ll. ..Ea.~.t. ..MaJ.n...S.t;r;::e. ~.t. ,J?.Q .?~mp. n . M on tana, as TR US TEE, and........ci:tY...Qi. ..BOz.emanm___................ .....___ ............ ....m............................. ........, _. __. r _ _ _ _.~ ~ _ _r_"~ _~.. __ _. _~~... ~.o. __ ~ _ &&.. ___~ & ~ &._ r" _ _ _&_ _ ~ _ _ _ ~ & ~& .....& ~ &... & &&~ ~ ~ _.. ~ ~ ~..._ _... _... ~ _.._ _ _ ~._. __...... __. __.... __ ___ _. __...................._....... __.._.. ..._. _ _ _ _ _ ~__ __ _. _ __ _ _ r__ _. _ _ _.. _ _.... __. _........ .. with principal offi ce a LA.ll....E.c';V;!t ...,Mg.JU...Qt;.t;. eg.t.l....P.9?: .em.9Jl.l..J.19n.t 9.DJL..S..~.7.1S. ..m...... ... ___, as BENE:B~ICIARY, WITNESSETH: That Grantor hereby irrevocably GRANTS, BARGAINS, SELLS, CONVEYS AND W ARRANTS TO TRUSTEE IN TRUST, nevertheless, WITH POWER OF SALE that certain real property, which does not exceed thirty (30) acres in area, situated in the County of..""""",Gallatin"", """..0.. , , , " ... ......................"",.. ""."""""''''''''',.",,.,,'''''''''''''''''''''''', State of Montana, particularly described as follows, to-wit: Lot 1 of Minor Subdivision #162, situated in the Southeast Quarter of Section 8 , Township 2 South, Range 6 East, P.M.M., Gallatin County, .Mon tana according to the official plat of record with the County Clerk and Recorder. 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 re- leasing, relinquishihg and waiving all exemptions, rights of dower and homestead, in or to said prem- ises, 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 con- stitute 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 con- ferred upon Beneficiary to collect and apply such rents, issues and profits; . I ~ I AI " I .. .. , . \ , I , , 1 . . I , - . POR THE PURPOSE 01<' SECURING: (1) Payment of the prineipal sum .()L.Se.yent-Y-.__..__........ - __'J;.~g~.f?9:!:l:~..,.~.0.-~...~~/~.~.~.......mmDollars ($...?9.L9.9.g__.__g.9..__....) with intprest thereon according to the terms of a promissory hote, datP<L..,__.JJ!~f<i/Jldt:6!,.m..__jt!/m........__., J9.95.. (and any extensions and/or renewals or modifieations thereof), made by GI'antor payable to the order of Beneficiary in ill~ stalllllrnts, the last of which, unless sooner paid, will be due and payable on....JgJY..__9..c..?.QJ.9............ 19_______. j (2) Pa.yment of all sums expendrd 01' allvanced by Beneficiary under or pursuant to the t<'rrns hereof, togd,hel' with interpst thercon as h,~rein provided; (:l) Performancc of each agreement of Grantor hpJ'l'in a nd ill saill note eOlltained j a1Hl (4) Payment of any futurc advances, in no cvent <'xceeding......__..__.__.___..__________...._____________._______.__,J)ollars, now in eontl'mplation of the partirs, if the Benefieiary at its sole option elret.s to make any advances whatsoever. '1'0 PIW'!'EC'\' TIm SECURI'l'Y OP THIS TImS']' 1NnB~1'URE, ANn FOIt OTHER PURPOSES, GRAN'rOR AG1U<lBS: 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, damafced or destroyed thereon, and to pay when due all claims for labor performed and materials furnished there or; to comply with all laws, covenants and restrictions affecting said propert!; not to commit or permit waste thereof; not commit, suffer or permit any act upon said property in violation 0 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, ugon presentation to it of an affidavit signed by Beneficiary, setting forth facts showing a default by Grantor un er this numbered paraKraph, is authorized to accept as true and conclusive all facts and statements therein, and to act thereon as provide in this instrument, and as allowed by law. 2. To provide, maintain and deliver to Beneficiary, insurance of such type or types and amounts as Benefi- ciary may require, on the improvements now existing or hereafter erected or placed on said property. Such insur- ance shall be carried in companies approved by the Beneficiary with loss payable clause in favor of and in fonn acceptable to Beneficiary. In the event of loss, 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 of to 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 indebtness hereby secured or to the restoration or repair of the property damaged. 3. To delivcr to, pay for and maintain with Beneficiary until the indebtness 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 extensions or renewals thereof or supplements thereto. 4. To pay before delinquent aU taxes and assessments, including interest and penalities, affecting said prem- ises 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 tenns of the note hereby secured, Grantor shall, at the option and on demand of the Beneficiary, pay to the Beneficiary monthly and concurrently with payment of prinCIpal and interest, a sum equal to one-twelfth (1j12th) 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 Benefi- ciary of any such items when due. The failure of Grantor to make any of 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, includ- ing cost of search and evidence of title, advertising and recording expense, documentary taxes and Trustee's and at- torney'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 llame in such manner and to such extent as either may deem necessary to protect the sccurity 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 in- terest 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, includin~ Grantor, for the payment of any indebtedness secured hereby, or the lien of this Trust Indenture on the remamder of the Eroperty for the full amount of any in- debtedness unpaid, Beneficiary and Trustee are respectively empowered as ollows; Beneficiary may from time to time and without notice: (a) Release any preson liable for payment of any of the 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. 9a. Both parties agree that Beneficiary may. if Beneficiary so eleds, procure and thereafter continue during the term of this Indenture, for as long as Beneficiary desires, a form of insurance'acceptable to Beneficiary insur- ing Beneficiary against any loss sustained by Beneficiary by reason of any default in payment by Grantor of the se- cured indebtedness. If Beneficiary elects to procure such insurance, Grantor shall promptly reimburse Beneficiary the full amount of the initial premium for such insurance. During the term of this Indenture, Grantor shall each month deposit in escrow wit.h Beneficiary 1/12th of the next following anticipated annual premium for such insurance, said deposit to be made at the same time and place as Grantor makes monthly payments on the aforementioned promis- ... ,~ j :lii .. , .\1 ., " , '\' r . . I , .. . sory note. Beneficiary may thereafter pay all annual renewal premiums from guch escrow. Should the amount de- posited in escrow be insufficient to pay any renewal premium in full as the same become due, Grantor shall immedi- ately upon demand deposit with or pay to Beneficiary guch additional amount as may be sufficient to pay the re- o newal premium in full. Failure of Grantor to payor deposit any of the amounts referred to herein ghall eonstitute a default of the terms of thig Indenture. Mortgag'or further agreeg to deposit in escrow with Beneficiary 1/12 of the annual premium for hazard insurance coverage and annual taxeg and assessments each month. Failure of the Grantor to depogit any of the above amounts in the escrow account shall constitute a default of the terms of this indenture. 9b. Upon written requegt of Beneficiary stating that all sums secured hereby hnve been paid, and uJlon surrender of this Trust Indenture and said note to Trustee for cancellation and retention and upon payment by Beneficiary of its feeg, 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 l:ersonal property located thereon. Until Gl,.ntor shall default in the payment of any indebtedness secured here y or in the per- fonnance of any agreemen. 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 ri~ht 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 subse. quent enforcement by Beneficiary of the right, power, and authority to collect the same. Nothinlf 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 of liability under, nor subordination of the lien or charge of this Trust Indenture to any such tenancy, lease or option. 11. Upon any Jefault by Grantor hereunder, Beneficiary may at any time without notice, either in person, by al!:ent, 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 anl security for the indebtedness hereby secured, enter upon and take possession of said pro~erty or any part thereo , in its own name sue for 01' otherwise collect said rents, issues, and profits, including t ose past due and unpaid, and apply the same, less cost and expenses of operation and collection, includinl!: reasonable attorney's fees, upon any indebtedness secured hereby, and in such order as Bene~ ficiary may detennine. 12. The entering upon and taking possession of said property, the collection of such 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 de- fault 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 here- by or in the perfonnance of any afireement hereunder, all sums secured herebr shall immediately become due and payable at the option of the Bene iciary. In the event of such default, Beneflciary 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 obligations 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 expendi- tures secured hereby. 14. After the lapse of such time as may then be required by law following the recordation of said notice of de- fault 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 post- boned sale need be given. Trustee shall execute and deliver to the purchaser its deed conveying said property so sold, ut with out anl covenant of warranty, express or implied. The recitals in the deed of any matters or facts shall be conclusive 1100 of the truthfulness thereof. Any person including Beneficiary (but excluding Trustee) may bid at the sale. tel' deducting all costs and expenses of exercising the power of sale and of the sale, including cost 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 ~ayment 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 eight per cent (80/0) per annum from the date of expenditure thereof, and the surplus, if any, to the person or per- sons legally entitled thereto; provided that the Trustee, in its discretion, may deposit such surplus WIth the County Cleric ami Reeorder 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 aforsaid sale on the tenth (lOth) day following said sale, in the event such possession has not previously been de- livered by Grantor. 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 titie to the trust property and u~on foreclosure by exercise of power of sale, or otherwise, shall pass to the purchaser and the same are hereby p edged as additional security for payment of the indebtedness secured hereby. 17. Upon the occurrence of any default hereunder, Beneficiary shall have the option to declare all sums se- cured hereby immediately due and rayable and foreclose this Trust Indenture in the manner provided by law for the foreclosure of mortgages on rea property and Beneficiary shall be entitled to recover in such proceedings all costs and expenses incident thereto, including a 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, includin~ 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 or perfonn- ance hereunder by a party hereto or the breach of any lrovision hereof by a party hereto, including but not limited to an action to obtain possession of the above describe property after exercise of the power of sale granted here- under. 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 sev- eral. The tenn "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 neu- ter, and the singular numher 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 ta!ten in substitution for any mortgage 1lI 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. ~ OF, the (has) (have) hereunto set (his) (her) (its) (their) hands :emm.. nn .~. nt. ere; 'ff" ...Partnerslilp.....nm.n.........oo-h.....n.m..........oo...m...".m.....m.......".n Farmh reo B~.:mF.armho-USI:.. .ra.J:t..xu~x.'l..lt;f.P.1J,tg. moo. .~!'.t!!-~.E~hip mn .mmoooooo"nn mm n mnmoo oo.m.oo .."_, .._"- _m... moo oo. ,"-n' _mn_. By: The Dabney Company, its General Partner By: William c. Dabney III, its President .,. " ; '" . 1-1 ... .. i, J If \- . . , ,. : . . STATE OF MONTANA 1 jss. County oLuGR.llat.in..-.u.... un...u......-........ ....,... On thism...mm.m.....mday oL....uum__..........m__.....m........m..--.....m...-., 19...~.5, before me, a Notary Public for the State of Montana, personally appearedmn_............mm.........mn.......m..........mm........m.n......muum....u...' known to me to be the person(s) whose name(s) is (are) subscribed to the within instrument, and acknowledged to me that (he) (she) (they) executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. - -- ~ - ~.. - -. --... -- - -- - - -~ --.............. -- --... --... -. -. -- - ~ .....-- -- -- -- -. --..... --..... -.... -. - - - -~ ~&_..... Notary Public for the State of Montana. (Notarial Seal) Residing at.... ........ n._........ m... un'" ... um... m.......... ....00.__.... My Commission expiresmn._.......mm.._...............n___......... ,- STATE OF MONTANA, } ss. Coun ty of........Gal1.atin.......mn...mn.n............-.-. On thisn..Jt2.t!J....mday Of.m....mJ.llj/~lffACJ!!..n.n.......m....mm..' 19.9.:',~f., before me, a Notary Public for the State of Montana, personally appearedn....W.i~J..iamn.C......Dahney...I.I.Immnn..................mm00" andn......um.....m.......m........mmnnn..-.......nmm.--...........m..m......_......m...m.......m...mn........mknown to me to be the l?.r.esidentn.o.f...:thenDabne~n-Co....,....Gener ~ln]~I~R2};l_7_~.ee!igra.~nE!!Eihe~mgf~.tneI 5hir Oteman ~i trffia part~e:lishiR.' . oLuF.armhousenJ?.ar.tner.s:::.., t e mll'JIJ 00 a execu e t e WI III lDstrument and acknowl. edged to me that suchXlKl~ executed the same. limited partnership IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. ---...Qi~h~..St~i~~f.M~~t~~~:........ , . ....- .i_~ (Notarial Seal) R"iding at."~/"_'mZ::,."..'/..",."...",... :My Commission expires......mm.m....J/l'i. ...'ifmnmm - -- ' -- REQUEST FOR FULL RECONVEYANCE TO: TRUSTEE n', .mHU..........n nnn._u...... mn n mm_ _. "__.. .....n' 19 mnm The undersigned is the legal owner and holder of the note and all other indebtedness secured by the within 1'rust Indenture. Said note, together with all other indebtedness secured by said Trust In- denture, has been fully paid and satisfied and you are hereby requested and directed on payment to you of any sums owing to you under the terms of said Trust Indenture, to cancel said note above men- tioned and all other evidences of indebtedness secured by said Trust Indenture delivered to you herewith, together with said Trust Indenture, and to reconvey, without warranty, to the parties desig- nated by the terms of said Trust Indenture, all the estate now held by you thereunder. .. _~ _ ~.~ _.... _ _. _* _ ~ _ _ _ ~~ ~.& _ _.. r _ __ _ _ ~.. _. _ ~.. _ _. +_... _.. _.. .. _. _._...... _... __.." _ - - - - _ - ~ _ ___ . _.- .----.... -.-.- ._~- .~-_..... ... .------....-.- ........ -.- -.-..... -.-.... ..-.- ..... -- -- --.. ---~.... 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