Mortgage Agreement - Montana

MORTGAGE AGREEMENT

(State of Montana)

TABLE OF CONTENTS

1. Document Header
2. Definitions
3. Grant of Mortgage & Secured Obligations
4. Representations & Warranties of Mortgagor
5. Covenants of Mortgagor
6. Default; Acceleration; Remedies
7. Risk Allocation
8. Dispute Resolution
9. General Provisions
10. Execution & Acknowledgment

1. DOCUMENT HEADER

1.1 Parties.
This Mortgage Agreement (this “Mortgage”) is made as of [EFFECTIVE DATE] (the “Effective Date”) by and between:

a. [BORROWER LEGAL NAME], a [STATE & TYPE OF ENTITY / INDIVIDUAL], whose address is [BORROWER ADDRESS] (“Mortgagor”); and
b. [LENDER LEGAL NAME], a [STATE & TYPE OF ENTITY], whose address is [LENDER ADDRESS] (“Mortgagee”).

1.2 Consideration. Mortgagor is indebted to Mortgagee under that certain [PROMISSORY NOTE / LOAN AGREEMENT] dated [DATE] in the principal amount of [SECURED DEBT AMOUNT] United States Dollars (USD) (together with all extensions, renewals, modifications, future advances, interest, fees, and costs, the “Secured Obligations”).

1.3 Grant. To secure payment and performance of the Secured Obligations, Mortgagor hereby mortgages, grants, and conveys to Mortgagee, with power of sale as permitted by Montana law, all of Mortgagor’s right, title, and interest in and to the real property described in Exhibit A (the “Property”) together with all improvements, fixtures, easements, rents, issues, profits, and appurtenances now or hereafter belonging or appertaining thereto (collectively with the Property, the “Mortgaged Property”).

1.4 Governing Law & Jurisdiction. This Mortgage shall be governed by and construed in accordance with the real property and contract laws of the State of Montana, without regard to conflict-of-laws principles. The court and venue for foreclosure or another judicial action shall be determined by applicable law for the property and claim. The parties consent to personal jurisdiction in an appropriate Montana state court without restricting any other forum available under law.

2. DEFINITIONS

(Definitions apply equally to singular and plural forms.)

“Affiliate” – any Person controlling, controlled by, or under common control with a specified Person.

“Event of Default” – any event or circumstance set forth in Section 6.1.

“Impositions” – all present and future real estate taxes, assessments, levies, charges, fees, HOA dues, and governmental impositions relating to the Mortgaged Property.

“Indemnified Parties” – Mortgagee and its successors, assigns, officers, directors, employees, agents, and representatives.

“Permitted Liens” – (i) the lien created by this Mortgage; (ii) liens approved in writing by Mortgagee; and (iii) liens that are, by operation of law, superior to this Mortgage.

“Person” – any individual, corporation, partnership, limited liability company, trust, unincorporated organization, or governmental authority.

“Redemption Period” – the one-year statutory period following a foreclosure sale of the Mortgaged Property during which Mortgagor or other parties may redeem the Mortgaged Property, as provided by Mont. Code Ann. § 71-1-228 (extending the redemption rights applicable to execution sales, including the one-year period under Mont. Code Ann. § 25-13-802, to sales under a power of sale contained in a mortgage), except that no such statutory redemption right applies to a sale under a trust indenture as defined in the Small Tract Financing Act of Montana (Title 71, chapter 1, part 3, MCA) — a distinction not applicable to this Mortgage, which is not such a trust indenture.

3. GRANT OF MORTGAGE & SECURED OBLIGATIONS

3.1 Grant Clause. Subject to the terms herein, Mortgagor hereby grants, bargains, sells, conveys, mortgages, and pledges the Mortgaged Property to Mortgagee, WITH POWER OF SALE AND RIGHT OF ENTRY, to secure prompt payment and performance of the Secured Obligations. This instrument is a mortgage governed by Title 71, chapter 1, part 2, MCA, and is not a trust indenture under the Small Tract Financing Act of Montana (Title 71, chapter 1, part 3, MCA); Mortgagor does not convey the Mortgaged Property to any trustee.

3.2 Future Advances. This Mortgage secures not only the original principal amount but also all future advances that Mortgagee may make to Mortgagor (whether obligatory or discretionary), provided that, as required by Mont. Code Ann. § 71-1-206, the maximum aggregate principal amount of future advances or total indebtedness that may be outstanding and secured by this Mortgage at any one time shall not exceed [MAXIMUM FUTURE-ADVANCE / TOTAL INDEBTEDNESS AMOUNT], together with interest as provided in the instrument(s) secured hereby. Mortgagor may, at any time, deliver to Mortgagee a written, acknowledged notice declining further future advances and, upon recording such notice in the county or counties where this Mortgage is recorded, the lien of this Mortgage shall thereafter secure only the aggregate indebtedness then existing, as provided by Mont. Code Ann. § 71-1-206(3).

3.3 Fixture Filing. This Mortgage constitutes a financing statement (fixture filing) with respect to any fixtures now or hereafter attached to the Property. Mortgagor authorizes Mortgagee to file such UCC financing statements as Mortgagee deems necessary to perfect its security interest.

4. REPRESENTATIONS & WARRANTIES OF MORTGAGOR

4.1 Organization & Authority. Mortgagor is duly organized (or validly existing, if an individual is not applicable), in good standing, and has full power and authority to execute, deliver, and perform this Mortgage.

4.2 Title. Mortgagor holds fee simple title to the Mortgaged Property, free and clear of all liens, claims, and encumbrances other than Permitted Liens.

4.3 Enforceability. This Mortgage constitutes the legal, valid, and binding obligation of Mortgagor, enforceable against Mortgagor in accordance with its terms.

4.4 No Litigation. There is no pending or threatened litigation, condemnation, or environmental action affecting the Mortgaged Property that has not been disclosed in writing to Mortgagee.

4.5 Compliance. The Mortgaged Property and its present use comply in all material respects with applicable laws, ordinances, regulations, and recorded covenants.

4.6 Survival. All representations and warranties survive the recordation of this Mortgage and any foreclosure sale.

5. COVENANTS OF MORTGAGOR

5.1 Payment & Performance. Mortgagor shall pay and perform the Secured Obligations in accordance with their terms without set-off, deduction, or counterclaim.

5.2 Taxes & Impositions. Mortgagor shall pay all Impositions prior to delinquency and, upon request, deliver receipts evidencing such payment.

5.3 Insurance. Mortgagor shall maintain insurance on the Mortgaged Property (including but not limited to casualty, liability, and flood, if applicable) in types and amounts acceptable to Mortgagee, naming Mortgagee as mortgagee and loss payee.

5.4 Maintenance. Mortgagor shall keep the Mortgaged Property in good repair, comply with all applicable laws, and not commit waste.

5.5 Further Assurances. Mortgagor shall execute and deliver such further instruments as Mortgagee may reasonably request to confirm the lien and priority of this Mortgage.

5.6 Transfer Restrictions. Except with Mortgagee’s prior written consent, Mortgagor shall not transfer, sell, convey, lease (other than arm’s-length leases in the ordinary course), or further encumber any interest in the Mortgaged Property.

5.7 Notice Obligations. Mortgagor shall promptly notify Mortgagee of: (a) any Event of Default; (b) material damage to or condemnation of the Property; or (c) any litigation affecting Mortgagor or the Property.

5.8 Homestead — Spousal Joinder. If the Mortgaged Property, or any part of it, constitutes the homestead of a married Mortgagor within the meaning of Title 70, chapter 32, MCA, this Mortgage cannot be validly conveyed or encumbered unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both spouses, as required by Mont. Code Ann. § 70-32-301. If Mortgagor is married, Mortgagor's spouse joins in the execution of this Mortgage below for the sole purpose of encumbering any homestead interest in the Mortgaged Property.

6. DEFAULT; ACCELERATION; REMEDIES

6.1 Events of Default. Each of the following shall constitute an Event of Default:
(a) Failure to pay any installment of principal, interest, or other amount when due under the Secured Obligations;
(b) Breach of any covenant, representation, or warranty herein, which remains uncured for ten (10) days (monetary) or thirty (30) days (non-monetary) after written notice;
(c) Insolvency of Mortgagor, appointment of a receiver, or commencement of bankruptcy/insolvency proceedings;
(d) Unauthorized transfer or encumbrance of the Mortgaged Property;
(e) Any material misrepresentation by Mortgagor in connection with the loan.

6.2 Acceleration. Upon an Event of Default, Mortgagee may, at its option, declare the entire unpaid balance of the Secured Obligations immediately due and payable without further notice or demand.

6.3 Judicial Foreclosure. Mortgagee may institute a judicial foreclosure proceeding in accordance with Montana law, obtain a decree of foreclosure, and cause the Mortgaged Property to be sold at public sale to satisfy the Secured Obligations.

6.4 Right of Redemption. Following a foreclosure sale of the Mortgaged Property, Mortgagor and other qualifying parties shall have a statutory right of redemption for a period of one year from the date of sale, as provided by Mont. Code Ann. §§ 71-1-228 and 25-13-802. Nothing herein shall waive or limit such right.

6.5 Deficiency Judgment. Following a judicial foreclosure sale of the Mortgaged Property, if the sale proceeds are insufficient to satisfy the Secured Obligations, Mortgagee may docket judgment for the remaining balance against any party personally liable, as provided by Mont. Code Ann. § 71-1-222(2). Notwithstanding the foregoing, no deficiency judgment is available if this Mortgage was given to a vendor of the Property to secure the unpaid balance of the purchase price (Mont. Code Ann. § 71-1-232), or if this instrument is a trust indenture within the meaning of Title 71, chapter 1, part 3, MCA, foreclosed by advertisement and sale (Mont. Code Ann. § 71-1-317) or judicially as to an occupied single-family residence (see First State Bank of Forsyth v. Chunkapura, 226 Mont. 54 (1987)).

6.6 Appointment of Receiver. Upon default, Mortgagee may apply to a court of competent jurisdiction for the appointment of a receiver to collect rents and preserve the Mortgaged Property. As provided by Mont. Code Ann. § 27-20-102(4), the court may appoint a receiver upon a showing either that the Mortgaged Property is in danger of being lost, removed, or materially injured, or that the conditions of this Mortgage have not been performed and the Mortgaged Property is probably insufficient to discharge the Secured Obligations; appointment of a receiver is not automatic or a matter of right independent of such a showing.

6.7 Attorneys’ Fees & Costs. Mortgagor shall pay all reasonable attorneys’ fees, costs, and expenses incurred by Mortgagee in enforcing this Mortgage or protecting its lien, whether or not litigation is commenced.

6.8 Cumulative Remedies. Remedies are cumulative and may be exercised concurrently or successively. Failure to exercise any remedy shall not constitute a waiver thereof.

7. RISK ALLOCATION

7.1 Indemnification. Mortgagor shall indemnify, defend, and hold harmless the Indemnified Parties from and against any and all claims, liabilities, losses, damages, costs, and expenses arising out of or relating to: (a) ownership, operation, or condition of the Mortgaged Property; (b) violation of any law; (c) environmental matters; or (d) any breach of this Mortgage, except to the extent caused by the gross negligence or willful misconduct of the Indemnified Parties.

7.2 Limitation of Liability. The liability of Mortgagor under this Mortgage shall not exceed the Secured Obligations plus enforcement costs, except as otherwise required by law.

7.3 Insurance Proceeds & Condemnation Awards. All insurance proceeds and condemnation awards shall be applied, at Mortgagee’s option, to restoration of the Mortgaged Property or to reduction of the Secured Obligations.

7.4 Force Majeure. Performance (other than payment) shall be excused to the extent delayed by events beyond the reasonable control of the obligated party, provided such party gives prompt notice and diligently resumes performance.

8. DISPUTE RESOLUTION

8.1 Governing Law. See Section 1.4.

8.2 Forum Selection. The parties consent to personal jurisdiction in an appropriate Montana state court, subject to applicable foreclosure, property and venue rules. This consent does not restrict an otherwise available tribunal.

8.3 Arbitration. The parties expressly agree that NO claim arising under this Mortgage shall be subject to arbitration.

8.4 Injunctive Relief. Nothing herein limits Mortgagee’s right to seek injunctive or other equitable relief (including foreclosure) to protect its interests in the Mortgaged Property.

9. GENERAL PROVISIONS

9.1 Amendments & Waivers. No amendment or waiver shall be effective unless in writing and signed by the party against whom enforcement is sought. A waiver of any breach shall not be deemed a waiver of any subsequent breach.

9.2 Assignment. Mortgagee may assign this Mortgage and the Secured Obligations, in whole or in part, without notice to Mortgagor. Mortgagor may not assign or delegate any rights or obligations without Mortgagee’s prior written consent.

9.3 Successors & Assigns. This Mortgage shall bind and benefit the parties and their respective heirs, personal representatives, successors, and assigns.

9.4 Severability. If any provision is held invalid or unenforceable, the remaining provisions shall remain in full force, and the invalid provision shall be reformed to the minimum extent necessary to effectuate its original intent.

9.5 Entire Agreement. This Mortgage, together with the Secured Obligations documents, constitutes the entire agreement of the parties with respect to the subject matter and supersedes all prior agreements (written or oral).

9.6 Counterparts; Electronic Signatures. This Mortgage may be executed in counterparts and delivered electronically; each counterpart shall be deemed an original, and all counterparts together constitute one instrument.

9.7 Recording. Upon execution, this Mortgage shall be recorded in the Office of the Clerk & Recorder of [COUNTY], Montana. Mortgagor shall pay all recording fees and transfer taxes, if any.

10. EXECUTION & ACKNOWLEDGMENT

IN WITNESS WHEREOF, the parties have executed this Mortgage as of the Effective Date.

MORTGAGOR:

________________________________________
[BORROWER LEGAL NAME]
By: ____________________________________
Name: __________________________________
Title/Capacity: __________________________

JOINDER OF SPOUSE (if the Mortgaged Property is a homestead of a married Mortgagor, per Section 5.8 and Mont. Code Ann. § 70-32-301):

________________________________________
[NAME OF MORTGAGOR'S SPOUSE], joining solely to encumber any homestead interest

MORTGAGEE:

________________________________________
[LENDER LEGAL NAME]
By: ____________________________________
Name: __________________________________
Title: __________________________________

NOTARY ACKNOWLEDGMENT

On this ____ day of ____________, 20____, before me, the undersigned Notary Public for the State of Montana, personally appeared [NAME(S) OF SIGNATORY(IES)], who, pursuant to Mont. Code Ann. § 1-5-603, is/are known to me or whose identity was proven to my satisfaction, and who acknowledged that he/she/they executed the same knowingly and willingly for the purposes therein contained.

IN WITNESS WHEREOF, I hereunto set my hand and affixed my Notarial Seal the day and year first above written.

________________________________________
Notary Public for the State of Montana
Printed Name: ___________________________
My Commission Expires: _________________
(SEAL)

EXHIBIT A – LEGAL DESCRIPTION OF PROPERTY

[Insert full metes-and-bounds or lot/block legal description here.]