THIS
MORTGAGE, Made by as
MORTGAGOR, whose current address is: , and as
MORTGAGEE,
WITNESSETH,
That the said MORTGAGOR, for good and valuable consideration, the receipt where
of is hereby acknowledged, does hereby grant, bargain, sell and convey unto the
said MORTGAGEE, their heirs and assigns forever, the following real estate
situated in Blaine County, State of Idaho, to-wit:
TOGETHER
WITH all the improvements, privileges and appurtenances thereunto belonging and
all rights of homestead exemption, together with all ditch and water rights of
every nature, however evidenced, used on the said land or belonging to the same
or said MORTGAGOR, which may be hereafter acquired or used upon said land. Said
MORTGAGOR does hereby warrant the title to said land and water rights against
all persons whomsoever, and agree to defend the same.
THIS CONVEYANCE
is intended as a mortgage to secure the payment of the principal sum of $ , lawful money
of the United States of America, evidenced by a promissory note executed and
delivered by MORTGAGOR herein, dated , with final payment due .
TOGETHER
WITH interest, costs, and expenses, as therein provided, payable to the order
of the MORTGAGEE at the times and in the manner and with interest as therein
set forth, together with any extensions, renewals, modifications and future
advances thereof or thereunder; the performance of each agreement of MORTGAGOR
herein contained; and the payment of all sums expended or advanced by MORTGAGEE
under or pursuant to the terms of this Mortgage and/or the note(s), together
with interest thereon as provided therein.
To
Protect the Security of the Mortgage, Mortgagor Covenants and Agrees:
1. To
keep said property in good order and condition as it now is and not commit or
permit any waste thereof;
2. To
promptly make all repairs, replacements, additions, improvements and
alternations thereto, interior and exterior, structural and nonstructural,
which are necessary or appropriate to keep the same in good order and
condition;
3. To
complete or restore promptly and in a good and workmanlike manner any building
or other improvement which may be constructed, damaged or destroyed thereon,
and pay when due all costs incurred therefor;
4. To
not remove or demolish any building or other improvement thereof now or hereafter
existing on the property;
5. To
comply with all laws, ordinances, regulations, covenants, conditions, and
restrictions affecting said property;
6. To
not: 1) allow changes in the use of the property from the date of this
Mortgage; 2) maintain, operate or occupy the property or allow the property to
be used, maintained, operated or occupied in any manner which violates any
laws, safeguarded as required by law, which constitutes a public or private
nuisance, or such makes void, voidable, or cancellable or increases the
premiums of any insurance required to be maintained under this Mortgage; or 3)
initiate or acquiesce in a change in the zoning classification of the property;
unless required by applicable law or unless MORTGAGEE had given its prior
written consent.
7. To
not alter the property and not, except as is necessary to maintain the property
in a state of good condition and repair, make or permit to be made any
alterations or additions to the property of a material nature without the prior
written consent of MORTGAGEE.
8. To
keep the buildings, improvements, fixtures, equipment, machinery, and
appliances of the above described property, or to be hereafter constructed or
placed thereon, insured against loss by fire or other hazards, casualties, and
contingencies included in the term Aextended coverage,@ in such forms of insurance, and in such amounts, as may be
required by to the MORTGAGEE, but not in an amount less than the full
replacement cost of all buildings, fixtures, and other insurable improvements
of the property for the benefit of the MORTGAGEE, with loss payable solely to
MORTGAGEE, and to deliver all policies to MORTGAGEE, which delivery shall
constitute an assignment to MORTGAGEE of all return premiums; Neither
destruction of the property in whole or in part nor the application of
insurance proceeds to reconstruct the premises or to reduce the indebtedness
secured by this Mortgage shall cause suspension, extension or abatement of
payments under the note, serviced hereby unless the entire indebtedness is paid
by the application of said insurance proceeds;
9. To
pay in full immediately and discharge before delinquent all encumbrances, taxes
and assessments, charges, liens and other impositions, with interest and
penalties, on said property or any part thereof, including, and to pay in full
immediately and discharge before delinquent, all dues or assessments upon said
ditch or water rights or water stock. MORTGAGOR shall pay, when due, all claims
of all persons supplying labor or materials to or in connection with the
property when due.
10. To
pay all costs, fees, and expenses, of this Mortgage, including, but not limited
to, cost of search and evidence of title and advertising expense and attorneys= fees incurred in enforcing any of
the provisions of this Mortgage, or in exercising any remedies hereunder,
whether the same be incurred pursuant to limitations, any form of bankruptcy
proceedings or otherwise, which sums shall also be secured by this Mortgage.
Nothing in this paragraph shall limit any provision of any statute which
requires MORTGAGOR to pay more attorneys= fees than as provided in this paragraph.
It is
Mutually Agreed that:
11. Should
the property or any part thereof be taken or damaged by reason of any public
improvement or condemnation proceeding, or damaged by fire, or earthquake, or
in any other manner, MORTGAGEE shall be entitled to all compensation, awards
and other payments or relief thereof, and shall be entitled at their option to
commence, appear in and prosecute in their own names, any action or proceedings
or to make any compromise or settlement, in connection with such taking or
damage. All such compensation, awards, damages, rights or action and proceeds,
including the proceeds of any policies of fire and other insurance affecting
said property, are hereby assigned to MORTGAGEE, who may after deducting
therefrom all of its expenses, including attorneys fees, release any moneys so
received by it or apply the same on any indebtedness secured hereby. MORTGAGOR
agrees to promptly notify MORTGAGEE of any action or proceeding relating to any
condemnation or other taking, whether direct or indirect, of the property, or
part thereof, and MORTGAGOR shall appear in and prosecute any such action or
proceeding unless otherwise directed in writing by MORTGAGEE. MORTGAGOR authorizes MORTGAGEE, at MORTGAGEE=S option, as attorney-in-fact for
MORTGAGOR, to commence, appear in, and prosecute, in MORTGAGEE=S or MORTGAGOR=S name, any action or proceedings
relating to any condemnation or taking of the property, whether direct or
indirect, and to settle or compromise any claim in connection with such
condemnation or taking. MORTGAGOR agrees to execute such further evidence of
assignment of awards, proceeds, damages, or claims arising in connection with
such condemnation as MORTGAGEE may require. Unless said indebtedness is paid in
full by the application of said awards, no such award or application thereof
shall constitute a reduction in or abatement of any payments required by the
Note.
12. MORTGAGOR
shall pay the indebtedness, secured by this Mortgage as and when called for in
the documents evidencing the same and will fully and promptly preform all of
the obligations under the Note and this Mortgage as such performance becomes
due.
13. The
term AEvent of Default,@ as used in this Mortgage, shall
mean the occurrence or happening, at any time and from time to time, or any one
or more of the following:
(a) If
MORTGAGOR shall fail to pay, in full, any payment or any portion of the
indebtedness secured by this Mortgage, when the same shall become due and
payable, whether at the due date thereof stipulated in the Note and this
Mortgage, or by acceleration or otherwise; or
(b) If
MORTGAGOR shall fail, refuse or neglect to perform and discharge fully and
timely any of the other obligations of MORTGAGOR under the Note and/or this
Mortgage; or
(c) If
the property is materially demolished, destroyed or substantially damaged and
suitable arrangements are not made with MORTGAGEE by MORTGAGOR to reconstruct
the same or if the same cannot be repaired within 120 days from the date of
destruction.
14. Upon
the occurrence of any Event of Default, as that term is defined above,
MORTGAGEE, at MORTGAGEE=S option, may declare all of the
indebtedness and other sums secured by this Mortgage to be immediately due and
payable without further demand, and those remedies hereunder, under any of the
Note and/or permitted by applicable law regarding Mortgages may be invoked.
15. In
addition to the foregoing, MORTGAGEE=S rights in the Event of Default shall include, but shall
not be limited to, the right of MORTGAGEE to:
(a) Take
possession and hold, occupy, operate, and use the property, together with the
personality, without liability or obligation on its part, and to do all acts
affecting said property as MORTGAGEE may deem necessary to keep the property in
good condition and repair and to conserve the value thereof;
(b) To
the extent permitted by law, bring an action to collect any installment which
is due or past due and payable without affecting or losing the security of this
Mortgage or waiving any other right or remedy allowed by law;
(c) Foreclose
this Mortgage in the manner provided by law for the foreclosure of mortgages on
real property, bring an action for damages, or exercise such other remedy or
combination of remedies as MORTGAGEE may have under law or equity.
(d) Apply
to a Court of competent jurisdiction for the appointment of a receiver to take
charge of the property and, with or without the appointment of a receiver: 1)
collect the rents, issues and profits therefrom: 2) care for and repair the
same, and improve the same when necessary or desirable; 3) lease and rent the
property or portions thereof (including leases existing beyond the term or
receivership); and 4) otherwise use and utilize the property, and have such
other powers as may be fixed by any Court of competent jurisdiction. MORTGAGOR
specifically agrees that the receiver may be appointed without any notice to
MORTGAGOR whatsoever, and the Court may appoint the receiver without reference
to the adequacy or inadequacy of the security, or the solvency or insolvency of
MORTGAGOR, and without reference to other matters normally taken into account
by courts in the discretionary appointment of receivers, it being the intention
of MORTGAGOR to hereby authorize the appointment or a receiver when MORTGAGOR
is in default and MORTGAGEE has requested the appointment of a receiver.
MORTGAGOR hereby agrees and consents to the appointment as receiver the person
or firm designated by MORTGAGEE and hereby waive its rights to suggest or
nominate any such person or firm in opposition to MORTGAGEE.
No remedy
herein provided shall be exclusive of any other remedy which now exists or such
may hereafter exist under the Note in favor of MORTGAGEE or by law. Every power
or remedy given to MORTGAGEE or to which they may be otherwise entitled, may be
exercised from time to time and as often as may be deemed expedient by them,
and they may pursue inconsistent remedies. If MORTGAGEE holds any additional
security for any obligation secured hereby it may enforce the sale thereof at
its option, either before, contemporaneously with, or after the sale is made
hereunder, and in the event of any default of MORTGAGOR, MORTGAGEE may, at its
option, offset against any indebtedness secured hereby. Should it become necessary
for MORTGAGEE, by its election, to pursue any of the remedies herein above
described, either personally or through its agents, to enter upon and take
possession of the property or any part thereof, and collect the rents, issues
and profits therefrom, MORTGAGEE shall be entitled to receive as compensation
for its management fee an amount customarily charged for such services by
reputable management firms.
The
purchasers at any foreclosure sale hereunder may disaffirm any easement or right-of-way
granted or rental or lease contract made after the execution of this Mortgage
may take immediate possession of the property free from, and despite the terms
of, such grant and/or rental and/or lease contract.
MORTGAGEE
shall have all rights, remedies and recourses granted in the Note and this
Mortgage available at law or equity and the same (a) shall be cumulative and
concurrent, (b) may be pursued against MORTGAGOR, at the sole discretion of
MORTGAGEE, (c) may be exercised as often as occasion therefore shall arise, it
being agreed by MORTGAGOR that the exercise or failure to exercise any of the
same shall in no event be constructed as a waiver or release thereof or of any
other right, remedy or recourse, and (d) are intended to be, and shall be,
non-exclusive.
The
liability of the MORTGAGOR for payment of the indebtedness and performance of
the obligations shall be joint and several.
If any or
any part of the property of interest therein is sold or transferred by
MORTGAGOR including, but not limited to, (1) the execution by MORTGAGOR of a
contract sale with respect to the property, (2) the grant of a leasehold estate
in the property or any part thereof for a period of greater than five (5)
years, (3) the transfer or sale of the property by a creditor or judgement
holder with respect to MORTGAGOR or (4) the transfer of a leasehold estate in
the property or any part thereof containing an option to purchase without
MORTGAGEE=S prior written consent, excluding
the grant of any leasehold estate in the property of five (5) years or less not
containing an option to purchase, MORTGAGEE may, at MORTGAGEE=S option, declare all of the
indebtedness to be immediately due and payable. MORTGAGEE shall be waived such
option to accelerate if, prior to the sale or transfer, MORTGAGEE, MORTGAGOR
and the person or entity to whom the property is to be sold or transferred
reach an agreement in writing otherwise.
If
MORTGAGEE exercises such option to accelerate, MORTGAGEE shall give MORTGAGOR
notice of acceleration. Said notice shall provide a period of not less than
thirty (30) days from the date of the notice is mailed in which MORTGAGOR may
pay the sums declared due. If MORTGAGOR shall fail to pay such sums prior to
the expiration of such period, MORTGAGEE may, without further notice of demand
on MORTGAGOR, consider this Mortgage in a state of default and exercise the
remedies set forth herein with respect to an Event of Default occurring under
this Mortgage.
A consent
by MORTGAGEE to one or more sales or above transfers of the property shall not
constitute a waiver of the provisions, nor shall it constitute a consent to or
for any future sales or transfers by MORTGAGOR, their successors or assigns,
and any further sale of transfer of the property by MORTGAGOR, their successors
or assigns, or any of them, shall give MORTGAGEE the acceleration rights
provided above.
16. Except
for any notice required under applicable law to be given in another manner:
(a) Any
notice to MORTGAGOR provided for in the Mortgage shall be given by personal
delivery or by mailing such notice addressed to MORTGAGOR as the following
current address:
or at such other address as MORTGAGOR may designate by notice to
MORTGAGEE as provided herein, and shall be deemed given, upon such personal
delivery or deposit in the United States mail, first class postage fully
prepaid;
(b) Any
notice to MORTGAGEE shall be given by personal delivery or by first class
United States mail to:
or to such other address as MORTGAGEE may designate by notice to
MORTGAGOR as provided herein, and shall be effective upon such personal
delivery or deposit in such mail, postage fully prepaid.
17. This
Mortgage shall be governed by the laws of the State of Idaho. In the event that
any provision or clause of the Note, or this Mortgage, conflicts with
applicable law, such conflict shall not affect other provisions of the Note or
this Mortgage which can be given effect without the conflicting provision, and
to this end the provisions of the Note and this Mortgage are declared to be
severable.
18. It
is hereby expressly stipulated and agreed to be the intent of MORTGAGOR, and
MORTGAGEE at all times to comply with the usury, and all other laws relating to
the Mortgage and the Note. If, at any time, the applicable law renders usurious
any amount called for in any of this Mortgage, and/or the Note, then it is MORTGAGOR=S and MORTGAGEE=S express intent that such document
be immediately deemed reformed and the amounts collectible reduced, without the
necessity of the execution of any new documents, so as to comply with the then
applicable law but so as to permit the recovery of the fullest amount otherwise
called for in this Mortgage and the Note and any amounts previously collected
in excess of the amount permitted under applicable usury laws shall be either
applied as a credit against the unpaid indebtedness due under the Note, or be
refunded to MORTGAGOR, at MORTGAGEE=S sole option.
IN WITNESS
WHEREOF, the said Mortgagor hereunto subscribe their name (s) .