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DE 2001 03-12RE: BK 74 MTG 900-905 RECORDING #196575 TRACT 2B-1 TRACT IN E2 SEC 32 T6N R4W AND W2 SEC 33 T6N R4W BOOK 74 MTGS. PAGE 900 State of Montana County of Jeffe fi• Recorded 3-1,2, 20 at B k f!�l Page -ej lerk& Reco gy ep. Fee AGREEMENT AND MORTGAGE 196575 Whereas, Jefferson County (hereinafter "Mortgagor") has applied to, received and accepted from the United Stats Department of Commerce, Economic Development Administration (hereinafter "EDA") an award in the amount of six hundred twenty-seven thousand Dollars $627,000.00 (hereinafter "Award Amount') pursuant to a Financial Assistance Award (hereinafter "Award Agreement') entered into by the parties on July 31, 2000, and bearing EDA Project Number 05-01-03438 (the "Project'); and WHEREAS, pursuant to the application (hereinafter "Award Application") filed by Mortgagor requesting said award and pursuant to the Award Agreement, the Award Amount is to be used for the purpose of the making improvements consisting of Renovation of building #7 &#8 on the real property described in Exhibit "A", attached hereto and made a part hereof (hereinafter the "Property"): and WHEREAS, any transfer or conveyance of a property by a recipient of a Financial Assistance Award must have the prior written approval of EDA. However, EDA, under authority of Public Law 105-393, Economic Development Administration Reform Act of 1998, 42 U.S.C. Section 3121 is not authorized to permit transfer or conveyance of a project to parties which are not eligible to receive EDA Financial Assistance Awards unless EDA is repaid its share of the fair market value of the project or unless the authorized purpose of the EDA Financial Assistance Award was to develop land in order to lease it for a specific use, in which case EDA may authorize the lease(s) of the project if certain conditions are met; and WHEREAS, the aforesaid Award Agreement from EDA provides that the authorized purpose for which the Award Amount may be used is to develop and improve the Property in order to lease it for a specific use while further providing, inter alia, that Mortgagor will not sell mortgage, or otherwise use or alienate any right to, or interest in the Property, (other than by a lease permitted by the Award Agreement), or use the Property for purposes other than, and different from those purposes set forth in the Award Agreement and the Award Application made by Mortgagor, such alienation or use being prohibited by 13 CFR Part 314, or by 15 CFRE Parts 14 and 24 (hereinafter the "Regulations") as may be amended from time to time; and WHEREAS, the value of said right to repayment under the terms of the Regulations is difficult to establish; and BOOK 74 MTGS. PAGE 901 -2- WHEREAS, at this time, Mortgagor and EDA desire to establish a value for EDA's share of the Project in the event that the Property is used, transferred or alienated in violation of the Award Agreement, or the Regulations; NOW THEREFORE, Mortgagor does hereby mortgage, warrant, grant and convey unto EDA, its successors and assigns, a mortgage on said Property to secure a debt that shall become due and payable by Mortgagor to EDA upon the use, transfer, lease, sublease or alienation of the Property in violation of the Award Agreement or in violation of the Regulations, as such Award Agreement or Regulations may be amended from time to time, provided, however, that the lien and encumbrance of this AGREEMENT AND MORTGAGE shall terminate and be of no further force and effect 1r years form the date hereof, which period of years has been established as the useful life of the improvements to the Property. The amount of the lien, encumbrance and debt created by this Agreement shall be the amount determined by EDA, pursuant to the Regulations. Mortgagor does hereby acknowledge that said debts shall accrue and be due and payable upon any use, transfer, or alienation prohibited by the Award Agreement or the Regulations, as such may be amended from time to time, and does, moreover, agree that such debt shall be extinguished only through the full payment thereof to the United States. Mortgagor further covenants and agrees as follows: 1. Lease of Property: If the Award Application and Award Agreement authorize Mortgagor to lease the Property, all lease arraignments must be consistent with the authorized general and special purpose of the Award, said lease arrangements will provide adequate employment and economic benefits for the area in which the Property is located; said lease arrangements must be consistent with EDA policies concerning, but not limited to, nondiscrimination and environmental requirements, and that the proposed Lessee is providing adequate compensation to Mortgagor for said lease. Any lease agreements entered into by Mortgagor of the Property shall be subordinate, junior and inferior to this AGREEMENT AND MORTGAGE. 2. Charges: Liens: Mortgagor shall protect the title and possession of the property, pay when due all taxes, assessments, and other charges, fines and impositions now existing or hereafter levied or assessed upon the Property and preserve and maintain the priority of the lien hereby created on the Property including any improvements hereafter made a part of the realty. BOOK 74 MTGS. PAGE 902 -3- 3. Hazard Insurance: Mortgagor shall insure and keep insured all improvements now or hereafter created upon the Property against loss or damage by fire and windstorm and any other hazard or hazards included within the term "extended coverage". The amount of insurance shall be the full insurable value of said improvements. Any insurance proceeds received by the Mortgagor due to loss shall be applied to restoration or repair of the Property damaged, provided such restoration or repair is economically feasible and the security of this Mortgage is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Mortgage would be impaired, Mortgagor shall use said insurance proceeds to compensate EDA for its fair share. EDA's fair share shall be a percentage of said insurance proceeds equal to its award percentage in the total cost of the award program for which the damaged or destroyed real property was acquired or improved. 4. Preservation and Maintenance of the Property: Mortgagor shall keep the property in good condition and repair and shall not permit or commit any waste, impairment, or deterioration of the Property. 5. Inspection: EDA may make or cause to be made reasonable entries upon and inspection of the Property. 6. Condemnation: The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taxing of the Property, or part thereof, or for any conveyance in lieu of condemnation shall be used by Mortgagor to compensate EDA for its fair share. EDA's fair share shall be the percentage of said condemnation proceeds equal to its award percentage in the total cost of the award program for which the condemned property was acquired or improved. 7. Forbearance by EDA Not a Waiver: Any forbearance by Eda in exercising any right or remedy hereunder, or otherwise affordable by applicable law, shall not be a waiver of or preclude the exercise of any right or remedy hereunder. BOOK 74 MTGS. PAGE 903 -4- 8. Recording of Mortgage - Mortgagee's Copy: Mortgagor shall record this AGREEMENT AND MORTGAGE in the County where the Property is located, thereby securing to EDA an estate in the Property and any other place where recording is required under applicable law. Mortgagee shall be furnished a conformed copy of this Mortgage at the time of execution or after recordation thereof. 9. Remedies Cumulative: All remedies provided in this Mortgage are distinct and cumulative to any other right or remedy under this Mortgage or afforded by law or equity and may be exercised concurrently, independently or successively. 10. Notice: Any Notice from EDA to Mortgagor provided for in this Mortgage shall be mailed by certified mail to Mortgagor's last known address or at such address as Mortgagor may designate to EDA by certified mail to EDA' address, except for any Notice given to Mortgagor in the manner as may be prescribed by applicable law as provided hereafter in this Mortgage. 11. Remedies: Upon Mortgagor's breach of any covenant or agreement herein, EDA, its designees, successors or assigns may declare the entire indebtedness secured hereby immediately due, payable and collectible. This AGREEMENT AND MORTGAGE may be enforced by the Secretary of Commerce of the United States of America, the Assistant Secretary of Commerce for Economic Development or their designees, successors or assigns, by and through a foreclosure action brought either in a United States District Court, or in any State Court having jurisdiction, but such action shall not be deemed to be a waiver of the aforesaid debt or of any possible further or additional action to recover repayment thereof. After any breach on the part of Mortgagor, EDA, its designees, successors or assigns shall, upon bill filed or the proper legal proceedings being commended for the foreclosure of this Mortgage, be entitled, as a matter of right, to the appointment by any profits of the Property, with power to lease and control the Property, and with such other powers as may be deemed necessary. BOOK 74 MTGS. PAGE 904 -5- 12. Governing Law: Severability: This AGREEMENT AND MORTGAGE shall be governed by applicable Federal law and nothing contained herein shall be construed to limit the rights the EDA, its designees, successors or assigns is entitled to under applicable Federal law. In the event that any provision or clause of this instrument conflicts with applicable law, such conflict shall not affect other provisions of this instrument which can be given effect without the conflicting provision, and to this end the provisions of this instrument are declared to be severable. IN WITNESS WHEREOF, Mortgagor has hereunto set its hand and seal on this the day of 14ti4ti , 2001. A completed duly recorded copy of this Agreement and Mortgage shall be forwarded to EDA. Mortgagor —� By: 4'1� D� Its: eo-, (The appropriate acknowledgment must be included for recording in the Mortgagor's Jurisdiction.) STATE OF /3 lon lavi2 ) COUNTY OF Jed Sow, ) THIS INSTRUMENT WAS ACKNOWLEDGED BEFORE ME ON THIS /a day of M CL,--C,%, , 2001, by SAM SAMSON of BOULDER, MT in behalf of said corporation. SN AUC aasrRw ti SEAS- otary Public, State of Manz OF f i BOOK 74 MTGS. PAGE 905 EXHIBIT A LEGAL DESCRfPT10N TRACT 28-1 A TRACT OF LAND LOCATED IN THE FAST W1LF OF SECTION 32 AND THE WEST HALF OF SECTION 33, BOTH SECTIONS BEING IN TOWNSHIP 6 NORTH, RANGE 4 WEST OF THE PRINCIPAL MERIDIAN, MONTANA, JEFFERSON COUNTY, MONTANA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A SURVEY PIN ON THE EASTERLY RWHT-OF-WAY LINE OF MONTANA STATE HIGHWAY NUMBER 69 WHICH BEARS S5733'14V A DISTANCE OF 197.22 FEET FROM THE ONE QUARTER CORNER COMMON TO SECTIONS 32 AND 33 �A 3/a' REBAR DIRECTLY OVER A 3 1/2' BLM BRASS CAP); THEN E FROM SAID POINT OF BEGINNING ALONG SAID EASTERLY RIGHT-OF-WAY LINE N 1 S06'08'E A DISTANCE OF 153.42 FEET TO % SURVEY PIN; THENCE LEAVING SAID EASTERLY RIGHT-OF-WAY LINE S7704'120E A DISTANCE OF 346.63 FEET TO A SURVEY PIN; THENCE S81'20'170E A DISTANCE OF 223.43 FEET TO A SURVEY PIN; THENCE S88'12'260E A DISTANCE OF 356.29 FEET TO A SURVEY PIN; THENCE S08'43'390E A DISTANCE OF 52.69 FEET TO A SURVEY PIN; THENCE S00'58'1 4'E A DISTANCE OF 724.47 FEET TO A SURVEY PIN; THENCE S74'13'33 W A DISTANCE OF 160.38 FEET TO A SURVEY PIN; THENCE N55'27'57'W A DISTANCE OF 100.96 FEET TO A SURVEY PIN; THENCE S46'3O'17'1N A DISTANCE OF 323.43 FEET TO A SURVEY PIN ON THE NORTHERLY RIGHT-OF-WAY LINE OF MONTANA STATE HIGHWAY NUMBER 69; THENCE ALONG SAID RIGHT-OF-WAY LINE N32'21'44'W A DISTANCE OF 311.35 FEET TO A SURVEY PIN; THENCE ALONG A CURVE CONCAVE TO THE EAST WITH A RADIUS OF 698.60 FEET AND AN ARC LENGTH OF 822.59 FEET TC A SURVEY PIN; THENCE N15006'08'E A DISTANCE OF 148.22 FEET TO THE SURVEY PIN AT THE POINT OF BEGINNING. THIS TRACT CONTAINS 19.15 ACRES, SUBJECT TO AND TOGETHER WITH ALL APPURTENANT EASEMENTS OF RECORD. PURPOSE OF SURVEY - - - WE HEREBY CERTIFY THAT THE PURPOSE OF THIS SURVEY IS TO RELOCATE COMMON BOUNDARY LINES WITHIN A PLATTED SUBDIVISION. NO NEW TRACTS HAVE BEEN CREATED THEREFORE THIS SURVEY IS EXEMPT FROM REVIEW UNDER THE MONTANA SUBDIVISION AND PLATTING ACT PURSUANT TO SECTION 76-3-207(1)(d). MCA* WE FUTHE.R CERTIFY THAT THIS DIVISION OF LAND IS EXEMPT FROM REVIEW UNDER THE MONTANA SANITATION IN SUBDIVISIONS ACT PURSUANT TO EXCLUSION 17.36.605 (2)(a), WHICH STATES THAT DIVISIONS ARE EXEMPT FROM REVIEW WHEN THE DIVISION IS MADE FOR THE PURPOSE OF AQUIRING ADDITIONAL LAND TO BECOME PART OF A PARCEL THAT DOES NOT HAVE SANITARY RESTRICTIONS IMPOSED PROVIDED THAT NO DWELLING OR STRUCTURE REQUIRING WATER OR SEWAGE WILL BE ERECTED ON THE ADDITIONAL AQUIRED PARCEL. Q �� �"� �_„ ("J M W C� � V