HomeMy WebLinkAbout887521RECORDATION REQUESTED BY:
National Cooperalive Bank
National Cooperalive Bank
1726 Eye Street, N.W. Suite 600
Washinglon, DC 20006
WHEN RECORDED MAIL TO:
LexisNexis Document Solutions
P. O. Box 2969
Springfield, Illinois 62708
SEND TAX NOTICES TO:
National Cooperative Bank
Nalional Cooperative Bank
1725 Eye Slreet, N.W. Suile 6oo
Washlnqlon, DC 20006
887521
~'(~O~~PR PAGE
SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY
MORTGAGE
THIS MORTGAGE dated February 3, 2003, is made and executed between Randal J. Hruska and Pamela
Hruska, whose address is 599 Fairview Road, Fairview, WY 83119 (referred to below as "Grantor") and National
Cooperative Bank, whose address is 1725 Eye Street, N.W. Suite 600, Washington, DC 20006 (referred to below
as "Lender").
GRANT OF MORTGAGE. For valuable consideralion, Grantor mortgages and conveys to Lender all of Grantor's right, title, and iriteresl 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, waler rights, watercourses and ditch righls (including stock in utilities with dilch or irrigation rights); and all
other rights, royalties, and profits relating to the real properly, including without limitation all minerals, oil, gas, geothermal and similar matters, (the
"Real Property") located in Lincoln County, State of Wyoming:
That part of Section 9, T31N R119W of the 6th P.M., Lincoln County, Wyoming more particularly described
as follows:
COMMENCING at a point 30 rods West from the Northeast corner of SE1/4NE1/4 in said Section 9 and
running thence South 16 rods; thence West 15 rods; thence North 16 rods; thence East 15 rods to the Point
of Beginning.
The Real Property or its address is commonly known as 599 Fairview Road, Fairview, WY 83119.
CROSS-COLLATERALIZATION. In addition 1o the Guaranty, lhis Mortgage secures all obligations, debts and liabilities, plus interest thereon, of
Borrower to Lender, or any one or more of them, as well as all claims by Lender against Borrower or any one or more of Ihem, 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 Borrower or Grantor may be liable individually or jointly with
olhers, whether obligated as guarantor, surety, accommodation party 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 amoun{s may be or hereafter may become otherwise
unenforceable.
Grantor presently assigns to Lender all of Granlor's right, title, and interest in and to all present and fulure leases of lhe Property and all Rents from the
Property. In addilion, Grantor grants Io Lender a Uniform Commercial Code security interest in the Personal Property and Rents.
THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS
GIVEN TO SECURE (A) PERFORMANCE OF A GUARANTY FROM GRANTOR TO LENDER, AND DOES NOT DIRECTLY SECURE THE
OBLIGATIONS DUE LENDER UNDER THE NOTE, (B) PAYMENT OF THE INDEBTEDNESS AND (C) 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:
GRANTOR'S WAIVERS. This Modgage secures a guaranty and d~es nol directly secure Ihe Indebtedness due Lender under the Note. Grantor
waives any and all rights and defenses arising by reason of (a) any "one-action" or" anti-deficiency" law, or any other law that may prevent Lender
from bringing any action or claim tor deficiency against Borrower, (b) any election of remedies by Lender which may limit Grantor's righls to proceed
against any party indebted under lhe Note, or (c) any disability or defense of any party indebted under the Note, any other guarantor or any other
person by reason of cessation of the Indebtedness due under lhe Note for any reason other than full payment of Ihe Note.
GRANTOR'S REPRESENTATIONS AND WARRANTIES. Grantor warrants that: (a) this Modgage is execuied al Borrower's request and not at the
request of Lender; (b) Grantor has the full power, righl, and authority to enler into this Modgage and to hypothecate the Property; (c) lhe provisions of
this Modgage do not conflict with, or resull in a default under any agreement or other instrumenl binding upon Grantor and do not result in a violation
of any law, regulation, coud decree or order applicable to Granlor; (d) Grantor has established adequale means of obtaining from Borrower on a
continuing basis information about Borrower's financial condition; and (e) Lender has made no representation Io Grantor about Borrower (including
without limitation the credilwodhiness of Borrower).
PAYMENT AND PERFORMANCE. Except as otherwise provided in this Modgage, Grantor shall sldctly perform all of Grantor's obligations under the
Guaranty and under this Modgage.
POSSESSION AND MAINTENANCE OF THE PROPERTY. Borrower and Grantor agree that Borrower's and Grantor's possession and use of the
Property shall be governed by Ihe following provisions:
Possession and Use. Until the occurrence of an Event of Default, Grantor may (1) remain in possession and control of the Property; (2) use,
operate or manage the Properly; and (3) collect the Rents from the Property.
Loan No: 275122100
MORTGAGE
(Conbn ued)~.L,.._i. ~ ...... .~.
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Duty lo Maintain. Grantor shall maintain lhe Property in tenantable condition and promptly perform all repairs, replacements, and maintenance
necessary to preserve its value.
Compliance With Environmenlal Laws. Grantor represents and warrants to Lender that: (1) During Ihe period of Grantor's ownership of the
Property, there has been no use, generation, manufacture, storage, trealment, disposal, release or threatened release of any Hazardous
Substance by any person on, under, about or from the Property; (2) Granlor 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, trealment, disposal, release or lhreatened release of any Hazardous Substance on, under, about or from lhe
Properly by any prior owners or occupants of the Property, or (c) any actual or threatened litigalion or claims of any kind by any person relating
lo 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 Properly shall use, generate, manufacture, store, treat, dispose of or release any Hazardous
Substance on, under, about or from lhe Property; and (b) any such activity shall be conducted in compliance wilh all applicable federal, state,
and local laws, regulations and ordinances, including without limitation all Environmental Laws. Grantor authorizes Lender and its agents Io enter
upon the Property to make such inspections and tests, at Grantor's expense, as Lender may deem appropriate Io determine compliance of the
Property with this section of the Modgage. Any inspections or lests made by Lender shall be for Lender's purposes only and shall not be
construed lo create any responsibility or liability on the part of Lender to Grantor or Io any other person. The representations and warranties
contained herein are based on Grantor's due diligence in investigating the Property for Hazardous Substances. Grantor hereby (1) releases and
waives any future claims against Lender for indemnity or contribution in the event Granlor becomes liable for cleanup or other costs under any
such laws; and (2) agrees Io indemnify and hold 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 pdor to Grantor's ownership or inleresl in the Properly,
whether or not the same was or should have been known 1o Grantor. The provisions of this section of lhe Modgage, including the obligalion to
indemnify, shall survive the payment of the Indebledness and the satisfaction and reconveyance of the lien of this Mortgage and shall not be
affected by Lender's acquisition of any interest in the Property, whether by foreclosure or otherwise.
Nuisance, Wasle. Grantor shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any stripping of or waste on or to the
Properly or any podion of the Property. Without limiting lhe generality of the foregoing, Grantor will not remove, or grant to any olher party Ihe
right to remove, any timber, minerals (including oil and gas), coal, clay, scoria, soil,-gravel or rock products without Lender's prior written consent.
Removal of Improvemenls. Grantor shall not demolish or remove any Improvements from lhe Real Properly withoul Lender's prior written
consent. As a condition to the removal of any Improvements, Lender may require Grantor 1o make arrangements satisfactory to Lender to replace
such Improvements with Improvements of at least equal value.
Lender's Righl Io Enler. 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 Grantor's compliance with the lerms and conditions of this Modgage.
Compliance with Governmenlal Requlremenls. Grantor shall promptly comply with all laws, ordinances, and regulations, now or hereafter in
effect, of all governmental authorities applicable to lhe use or occupancy of the Property, including wilhout limitation, the Americans With
Disabililies 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,
Lender's interests in the Property are not jeopardized. Lender may require Granlor to post adequate security or a surety bond, reasonably
satisfaclory to Lender, to protecl Lender's interest.
Duty 1o Protecl. Grantor agrees neither to abandon or leave unattended the Properly. Grantor shall do all other acts, in addition to those acts set
fodh above in this section, which from the character and use of the Property are reasonably necessary to protect and preserve the Properly.
TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property are pad of lhis Modgage:
Payment. Granlor 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 accounl of the Property, and shall pay when due all claims for work done on or for services
rendered or material furnished to the Property. Granlor shall mainlain the Properly free of any liens having priority over or equal to the interest of
Lender under this Modgage, except for lhe Existing Indebtedness referred to in this Modgage or Ihose liens specifically agreed to in wdting by
Lender, and except for the lien of taxes and assessments not due as fudher specified in the Right to Contest paragraph.
Right'to Contest. Grantor may withhold payment of any tax, assessment, or claim in connecli0n 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 lhe lien, or if
requested by Lender, deposit with Lender cash or a sufficienl corporate surety bond or other security satisfactory to Lender in an amount sufficient
lo discharge the lien plus any costs and attorneys' fees, or other charges thai could accrue as a resull of a foreclosure or sale under the lien. In
any contesl, Grantor shall defend itself and Lender and shall satisfy any adverse judgment before enforcement against the Properly. 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 lo Lender satisfactory evidence of payment of the laxes or assessments and shall
authorize the appropriale governmental official to deliver to Lender at any time a written statemenl of lhe taxes and assessments against the
Property.
Nollce of Construction. Grantor shall notify Lender at least fifteen (15) days before any work is commenced, any services are furnished, or any
materials are supplied to the Property, if any mechanic's lien, malerialmen's lien, or other lien could be asserted on account of lhe work, services,
or materials and the cost exceeds $5,000.00. Grantor will upon requesl of Lender furnish to 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 mainlain 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 with 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 with Lender being named as additional insureds in such liability insurance
policies. Additionally, Grantor shall maintain such other insurance, including but nol limited lo hazard, business interruption 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 thirty (30) days' prior written notice to Lender and not containing any disclaimer of the insurer's liability for failure to give such
Loan No: 275122100
MORTGAGE
(Co nt in u ed)[..) ~ ~ ~,~ ~ ~
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notice. Each insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired ~n any way by any
act, omission or default of Grantor or any other person. Should the Real Property be located in an area designated by the Director of the Federal
Emergency Managemen{ Agency as a special flood hazard area, Grantor agrees lo obtain and mainlain Federal Flood Insurance, if available,
within 45 days after notice is given by Lender that the Property is located in a special flood hazard area, for Ihe full unpaid principal balance of the
loan and any prior liens on the property securing the loan, up to the maximum policy limits set under the National Flood Insurance Program, or as
olherwise required by Lender, and 1o maintain such insurance for the term of the loan.
Application of Proceeds. Grantor shall promptly notify Lender of any loss or damage to the Property if the estimaled cost of repair or
replacement exceeds $5,000.00. Lender may make proof of loss if Granlor fails to do so within fifteen (15) days of the casualty. Whether or not
Lender's security is impaired, Lender may, at Lender's election, receive and relain the proceeds of any insurance and apply lhe proceeds to the
reduction of the Indebtedness, payment of any lien affecting the Property, or the restoration and repair of the Properly. If Lender elects lo apply
lhe proceeds to restoration and repair, Grantor shall repair or replace the damaged or deslroyed Improvements in a manner satisfactory Io Lender.
Lender shall, upon satisfactory proof of such expendilure, pay or reimburse Grantor from lhe proceeds for the reasonable cost of repair or
restoration if Grantor is not in default under this Modgage. Any proceeds which have not been disbursed within 180 days after their receipt and
which Lender has not commilled to the repair or restoralion of lhe Property 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 inlerests may appear.
Compliance wilh Existing Indebledness. During the period in which any Existing Indebtedness described below is in effect, compliance with the
insurance provisions contained in the inslrument evidencing such Existing Indebtedness shall constilute compliance with the insurance provisions
under this Modgage, to the extent compliance with the terms of this Modgage would constilute a duplication of insurance requirement. If any
proceeds from the insurance become payable on loss, the provisions in this Modgage for division of proceeds shall apply only lo that podion of
the proceeds not payable to the holder of the Existing Indebtedness.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would materially affect Lender's interest in the Property or if Grantor fails
to comply with any provision of lhis Modgage or any Related Documents, including but not limited Io Grantor's failure to comply with any obligation to
maintain Existing Indebtedness in good standing as required below, or to discharge or pay when due any amounts Grantor is required to discharge or
pay under this Modgage or any Related Documents, Lender on Grantor's behalf may (but shall not be obligaled to) lake any action that Lender deems
appropriale, including but not limited to discharging or paying all taxes, liens, security interests, encumbrances and olher claims, at any time 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 Ihen bear interest at lhe rate charged under the Nole Irom the dale incurred or paid by Lender Io the date of repayment by Grantor.
All such expenses will become a pad of Ihe Indebtedness and, at Lender's option, will (A) be payable on demand; (B) be added lo the balance of
the Note and be appodioned among and be payable wilh any installment payments to become due during either (1) the term of any applicable
insurance policy; or (2) the remaining term of the Note; or (C) be treated as a balloon payment which will be due and payable at the Note's maturity.
The Modgage also will secure payment of these amounts. Such righl shall be in addilion 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 Modgage:
Title. Grantor warrants that: (a) Granlor holds good and marketable title of record to the Property in fee simple, free and clear of all liens and
encumbrances other lhan those set forth in the Real Property description or in the Existing Indebtedness section below or in any title insurance
policy, title report, or final title opinion issued in favor of, and accepted by, Lender in connection with this Modgage, and (b) Grantor has the full
right, power, and aulhority to execute and deliver this Modgage to Lender.
Defense of Tille. Subject to the exception in Ihe 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 that questions Grantor's title or the interest of Lender under this
Modgage, 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 to be delivered, 1o Lender such instruments as Lender may request from time to time lo permit such padicipation.
Compliance With Laws. Grantor warrants that the Property and Grantor's use of the Property complies with all existing applicable laws,
ordinances, and regulations of governmental aulhorities.
Survival of Representations and Warranties. All representations, warranties, and agreements made by Granlor in this Modgage shall survive
the execution and delivery of this Modgage, shall be continuing in nature, and shall remain in full force and effect until such time as Borrower's
Indebtedness shall be paid in full.
EXISTING INDEBTEDNESS. The following provisions concerning Existing Indebtedness are a pad of this Modgage:
Existing Lien. The lien of this Modgage securing the Indebtedness may be secondary and inferior to an existing lien. Grantor expressly
covenanls and agrees lo pay, or see to the paymenl of, the Existing Indebtedness and to prevenl any default on such indebtedness, any default
under the instruments evidencing such indebtedness, or any default under any security documents for such indebtedness.
No Modificalion. Grantor shall not enter into any agreement with lhe holder of any mortgage, deed of trust, or other security agreemenl which
has priority over this Mortgage by which that agreement is modified, amended, extended, or renewed without the prior written consent of Lender.
Grantor shall neither request nor accept any future advances under any such security agreement without the prior wdften consent of Lender.
CONDEMNATION. The following provisions relating to condemnation proceedings are a part of Ihis Mortgage:
Proceedings. If any proceeding in condemnation is filed, Grantor shall promptly nolify Lender in writing, and Grantor shall promptly take such
steps as may be necessary to detend the action and obtain the award. Granlor may be the nominal party in such proceeding, but Lender shall be
entitled to participate in Ihe proceeding and 1o be represented in the proceeding by counsel of ils own choice, and Granlor will deliver or cause to
be delivered to Lender such instruments and documentation as may be requesled by Lender from time lo time to permit such participalion.
Application of Net Proceeds. If all or any part 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 portion of the net proceeds of the award be applied to the Indebtedness
or lhe repair or restoration of the Property. The net proceeds of the award shall mean the award after payment of all reasonable costs, expenses,
and atlorneys' 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:
Loan No: 275122100
MORTGAGE { 1~7~l.
(Continued) ~---- '~' 1 3 4 Page 4
Current Taxes, Fees and Charges. Upon request by Lender, Grantor shall execu'le such documents in addition to this Mortgage and take
whatever other action is requested by Lender to perfect and continue Lender's lien on lhe Real Property. Grantor shall reimburse Lender for all
taxes, as described below, together with all expenses incurred in recording, perfecling or continuing lhis MOrtgage, including without limitation all
taxes, fees, documentary stamps, and other charges for recording or regislering this Modgage.
Taxes. The following shall constitute laxes 1o which this section applies: (1) a specific tax upon lhis lype of Modgage or upon all or any pad of
the Indebledness secured by this Modgage; (2) a specific tax on Borrower which Borrower is authorized or required to deduct from payments
on the Indebtedness secured by this type of Modgage; (3) a tax on Ihis type of Modgage chargeable against the Lender or lhe holder of the
N0!e; and (4) a specific tax on all or any podion of Ihe Indebtedness or on payments of principal and interest made by Borrower.
Subsequenl Taxes. If any tax to which this section applies is enacted subsequent to the date of this Modgage, Ihis event shall have the same
effect as an Event of Default, and Lender may exercise any or all of its available remedies for an Evenl of Default as provided below unless Grantor
eilher (1) pays the tax before it becomes delinquent, or (2) conlests 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 lhis Modgage as a secudty agreement are a pad of this
Modgage:
Security Agreement. This instrument shall constitute a Security Agreement to the extent any of the Property constitutes fixtures, and Lender shall
have all of the rights of a secured pady under Ihe Uniform Commercial Code as amended from time to time.
Securily Inleresl. Upon request by Lender, Grantor shall execute financing stalements and take whalever other action is requested by Lender to
perfect and continue Lender's security interest in the Rents and Personal Properly. In addition to recording this Modgage in the real property
records, Lender may, at any time and without fudher authorization from Grantor, file executed counterpads, copies or reproductions of this
Modgage as a financing statement. Granlor shall reimburse Lender for all expenses incurred in pedecling or continuing this security interesl.
Upon default, Grantor shall not remove, sever or detach the Personal Property from the Property. Upon default, Grantor shall assemble any
Personal Properly not affixed to the Property in a manner and at a place reasonably convenient to Grantor and Lender and make it available to
Lender within lhree (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 party) from which information concerning the security interest
granted by this Modgage may be obtained (each as required by the Uniform Commercial Code) are as stated on the first page of this Modgage.
FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating to fudher assurances and attorney-in-facl are a pad 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 lo 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, al such times and in such offices and places as Lender may deem appropriale, any and all such modgages,
deeds of trust, security deeds, security agreements, financing statements, continuation statements, instruments of fudher assurance, cedificates,
and other documenls as may, in the sole opinion of Lender, be necessary or desirable in order Io effectuate, complete, perfect, continue, or
preserve (1) Borrower's and Grantor's obligations under the Note, this Modgage, and the Relaled Documents, and (2) the liens and security
interests created by this Modgage on the Property, whether now owned or hereafter acquired by Grantor. Unless prohibited by law or Lender
agrees to 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-Facl. If Grantor fails to do any of the things referred to in lhe preceding paragraph, Lender may do so for and in the name of Grantor
and at Granlor's expense. For such purposes, Grantor hereby irrevocably appoinls 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 shall strictly perform all of Grantor's obligations under the Guaranty and otherwise performs all lhe obligations
imposed upon Grantor under Ibis Modgage, Lender shall execute and deliver Io Grantor a suitable satisfaclion of this Modgage and suitable statements
of terminalion of any financing stalement on file evidencing Lender's security interest in the Rents and the Personal Properly. Granlor will pay, if
permitted by applicable law, any reasonable termination fee as determined by Lender from time to time.
EVENTS OF DEFAULT. Each of the following, at Lender's option, shall constitute an Event of Default under this Modgage: Payment Default. Borrower fails to make any payment when due under the Indebtedness.
Defaull on Other Payments. Failure of Grantor within the time required by this Modgage to make any payment for taxes or insurance, or any
other payment necessary lo prevent filing of or to effect discharge of any lien.
Olher Defaults. Borrower or Grantor fails to comply with or to perform any olher term, obligation, covenanl or condition contained in lhis
Modgage or in any of the Related Documents or to comply with or to perform any term, obligation, covenant or condition contained in any olher
agreement between Lender and Borrower or Grantor.
Default in Favor of Third Parties. Should Borrower or any Grantor default under any loan, extension of credit, security agreemenl, purchase or
sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's or any Grantor's
property or Borrower's ability lo repay the Indebtedness or Borrower's or Grantor's ability to perform their respective obligations under this
Modgage or any relaled document.
False Slalements. Any warranly, representation or statement made or furnished to Lender by Borrower or Granlor or on Borrower's or Grantor's
behalf under this Modgage or the Related Documents is false or misleading in any material respect, either now or at lhe time made or furnished or
becomes false or misleading at any time thereafter.
Defective Collateralizallon. This Modgage or any of the Related Docurnenls ceases to be in full force and effect (including failure of any collateral
document to create a valid and perfecled security inlerest or lien) al any time and for any reason.
Death or Insolvency. The dissolution or termination of Borrower's or Grantor's existence as a going business, the insolvency of Borrower or
Grantor, lhe appointment of a receiver for any pad of Borrower's or Grantor's property, any assignment for the benefit of creditors, any type of
credilor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or againsl Borrower or Granlor.
Credilor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or Granlor or by any governmental agency against any properly securing lhe
Loan No: 275122100
MORTGAGE O~?5~'l--
(Continued)
13 5 Page
Indebledness. This includes a garnishment of any of Borrower's or Grantor's accounts, including deposil accounts, with Lender. However, this
Event of Default shall not aPply if there is a good faith dispule by Borrower or Grantor as to the validity or reasonableness ot the claim which is the
basis of the creditor or fodeilure proceeding and if Borrower or Grantor gives Lender written notice of the creditor or forfeiture proceeding and
deposits with Lender monies or a surety bond for the credilor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion,
as being an adequale reserve or bond for the dispute.
Existing Indebledness. The payment of any installment of principal or any interest on the Existing Indebledness is not made within the time
required by the promissory note evidencing such indebledness, or a default occurs under the instrument secudng such indebtedness and is not
cured during any applicable grace period in such instrument, or any suil or other action is commenced lo foreclose any existing lien on Ihe
Property.
Breach of Other Agreement. Any breach By Borrower or Grantor under the terms of any other agreement between Borrower or Grantor and
Lender thai is not remedied within any grace period provided therein, including wilhout limitalion any agreemenl concerning any indebtedness or
other obligation of Borrower or Grantor to Lender, whether existing now or later.
Events Affecting Guaranlor. Any of the preceding events occurs with respect to any Guarantor of any of the Indebtedness or any Guarantor dies
or becomes incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness.
Adverse Change. A material adverse change occurs in Grantor's financial condition, or Lender believes Ihe prospect of payment or performance
of the Indebtedness is impaired.
RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default 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 Indebtedness. Lender shall have the right at its option without notice to Grantor to declare the entire Indebtedness immediately due
and payable, including any prepayment penalty which Grantor would be required to pay.
UCC Remedies. With respecl to all or any pad of lhe Personal Properly, Lender shall have all the rights and remedies of a secured party under
the Uniform Commercial Code.
Collecl Renls. Lender shall have lhe righl, without notice to Borrower or Grantor, to take possession of the Property, including during the
pendency of foreclosure, whether judicial or non-judicial, 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 fudherance of Ihis dghl, Lender may require any tenant or olher user of
the Property to make payments of rent or use fees directly to Lender. If Ihe Rents are collected by Lender, then Grantor irrevocably designates
Lender as Granlor's aftorney-in-facl 1o endorse instruments received in payment lhereof in the name of Grantor and to negotiate the same and
collect the proceeds. Payments by tenants or other users lo Lender in response to Lender's demand shall satisfy the obligations for which the
payments are made, whether or nol 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 to have a receiver appointed 1o take possession of all or any pad of the Property, with the power 1o
protect and preserve the Property, to operate the Property preceding foreclosure or sale, and to collect lhe Rents from the Property and apply Ihe
proceeds, over and above the cost of lhe receivership, against the Indebledness. The receiver may serve without bond if permitted by law.
Lender's right to the appointment of a receiver shall exist whether or not the apparent value of the Property exceeds the Indebtednes§ 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. Lender may foreclose Grantor's interest in all or in any pad of lhe Properly by non-judicial sale, and specifically by "power of
sale" or "advedisement and sale" foreclosure as provided by statute.
Deficiency Judgment. If permitled by applicable law, Lender may obtain a judgment for any deficiency remaining in the Indebtedness due lo
Lender after application of all amounts received from the exercise of the righls provided in this section.
Tenancy al Sufferance. If Grantor remains in possession of the Property after the Property is sold as provided above or Lender olherwise
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 Properly, or (2) vacate the Property
immediately upon the demand of Lender.
Other Remedies. Lender shall have all other rights and remedies provided in this Mortgage or the Note or available al law or in equity.
Sale of the Property. To the extent permitted by applicable law, Borrower and Granlor hereby waives any and all right to have the Properb/
marshalled. In exercising its rights and remedies, Lender shall be free to sell all or any part of lhe Property together or separately, in one sale or by
separate sales. Lender shall be entitled Io bid at any public sale on all or any portion ot the Properly.
Notice of Sale. Lender shall give Grantor reasonable notice of the time and place of any public sale of the Personal Property or of the time after
which any private sale or olher intended disposition of the Personal Property is to be made. Reasonable notice shall mean notice given at least
ten (10) days before the time of the sale or disposition. Any sale of the Personal Properly may be made in conjunction with any sale of the Real
Property.
Eleclion of Remedies. Election by Lender to pursue any remedy shall noi exclude pursuit of any other remedy, and an election to make
expenditures or to take action to perform an obligation of Grantor under this Mortgage, after Grantor's failure lo perform, shall not affect Lender's
right to declare a default and exercise its remedies. Nothing under Ihis Mortgage or otherwise shall be construed so as to limit or restrict the rights
and remedies available to Lender following an Event of Default, or in any way to limit or restrict the righls and ability of Lender to proceed directly
against Grantor and/or Borrower 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.
Altorneys' Fees; Expenses. If Lender institutes any suit or action to enforce any of the lerms of this Mortgage, Lender shall be entitled to recover
such sum as the court may adjudge reasonable as attorneys' fees at trial and upon any appeal. Whether or not any court action is involved, and
to the extenl not prohibited by law, all reasonable expenses Lender incurs thai in Lender's opinion are necessary at any time for the protection of
its interesl 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, withoul limitation, however subjecl 1o any limils under
applicable law, Lender's attorneys' fees and Lender's legal expenses whelher or not there is a lawsuil, including attorneys' fees and expenses for
bankruptcy proceedings (including effods to modify or vacale any automalic stay or injunction), appeals, and any anticipated post-judgment
Loan No: 275122100
MORTGAGE O~75~i,
(Continued) ~ " 1 3 6 :' Page 6
collection services, the cost of searching records, obtaining title repods (including foreclosure repods), surveyors' repods, and appraisal fees and
lille insurance, to the extent permitted by applicable law. Granlor also will pay any coud costs, in addilion to all olher sums provided by law.
NOTICES. Any notice required to be given under lhis Modgage, including wilhout 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 mailed, when deposited in the United States mail, as first class, cedified or registered mail postage
prepaid, directed Io Ihe addresses shown near the beginning of lhis Modgage. All copies of notices of foreclosure from the holder of any lien which
has priority over this Modgage shall be senl to Lender's address, as shown near the beginning of this Modgage. Any party may change its address for
notices under this Modgage by giving formal writlen notice to the other padies, specifying thal lhe purpose of the notice is to change lhe party's
address. For notice purposes, Grantor agrees to keep Lender informed at all limes of Grantor's current address. Unless otherwise provided or
required by law, if there is more than one Grantor, any notice given by Lender to any Grantor is deemed to be notice given 1o all Granlors.
'TRADE NAME DEFINITION. As used herein, and in any Related Documents, the terms National Cooperative Bank, the "Bank" and "NCB" mean the
National Consumer Cooperative Bank d/b/a National Cooperative Bank.
RIGHT TO CURE. If any default is curable and if Borrower (Grantor) has not been given a notice of a similar defaull within the preceding Twelve (12)
months, such defaull may be cured (and no Event of Default will be deemed to have occurred) if Borrower (Grantor); (a) in the case of a failure to make
any payment on the indebtedness when due, makes full payment of all indebtedness due (excluding indebtedness that became due as a result of the
default) wilhin Fifteen (15) days of such indebtedness' due date, or (b) in the case of any default olher than a failure 1o make payments when due, after
acquiring actual notice or knowledge of such default or after receiving notice from Lender demanding cure of such default: (i) cures lhe default within
Fifteen (15) days, or (ii) if the cure requires more lhan Fifteen (15) days, immediately initiates and diligently pursues steps which Lender deems in
Lender's sole discretion to be sufficient Io produce compliance as soon as reasonably praclical.
ADDITIONAL MORTGAGE INFORMATION. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: SECURE THE
PERFORMANCE BY THE GRANTOR OF ALL GUARANTIES EXECUTED BY GRANTOR IN FAVOR OF LENDER, INCLUDING WITHOUT LIMITATION
THE GUARANTIES ("GUARANTY") EXECUTED BY GRANTOR IN CONNECTION WITH LENDER'S LOAN NUMBER'S 275122100, 27512300 AND
275123200.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a pad of this Modgage:
Amendmenls. This Modgage, logether with any Related Documents, constitutes the entire understanding and agreemenl of the padies as to the
matters set fodh in lhis Modgage. No alteration of or amendment lo this Modgage shall be effective unless given in writing and signed by the
party or padies sought to be charged or bound by lhe alteration or amendment.
Annual Reports. If the Property is used for purposes other than Grantor's residence, Grantor shall furnish to Lender, upon request, a cedified
stalemenl of nel operating income received from the Properly during Granlor's previous fiscal year in such form and detail as Lender shall require.
"Nel operating income" shall mean all cash receipls from the Property less all cash expenditures made in connection with the operation of the
Property.
Caplion Headings. Caption headings in this Modgage are for convenience purposes only and are not to be used to inlerprel or define the
provisions of this Mortgage.
Governing Law. This Mortgage will be governed by, construed and enforced In accordance with federal law and the laws of lhe Dlslrict of
Columbia, except and only Io the extent of procedural matters relaled to the perfection and enforcemenl of Lender's rights and remedies
against Ihe Property, which matlers shall be governed by the laws of the Stale of Wyoming. However, in the event Ihat the enforceability
or validity of any provision of this Mortgage is challenged or questioned, such provision shall be governed by whichever applicable state
or federal law would uphold or would enforce such challenged or questioned provision. The loan transaction which is evidenced by the
Note and this Mortgage has been applied for, considered, approved and made, and all necessary loan documents have been accepled by
Lender in the Dislricl of Columbia.
Joint and Several Liability. All obligations of Borrower and Grantor under this Modgage shall be joint and several, and all references to Grantor
shall mean each and every Grantor, and all references to Borrower shall mean each and every Borrower. This means that each Borrower and
Grantor signing below is responsible for all obligations in this Modgage.
No'Waiver by Lender. Lender shall not be deemed to have waived any rights under this Modgage unless such waiver is given in writing and
signed by Lender. No delay or omission on Ihe pad of Lender in exercising any righl shall operate as a waiver of such right or any other dght. A
waiver by Lender of a provision of this Modgage shall not prejudice or constitute a waiver of Lender's right otherwise lo demand strict compliance
with lhat provision or any other provision of this Modgage. No pdor 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 consenl of Lender
is required under lhis Modgage, the granting of such consent by Lender in any inslance shall not conslitute continuing consent to subsequent
instances where such consent is required and in all cases such consent may be granted or wiihheld in lhe sole discretion of Lender.
Severability. If a coud of competent jurisdiction finds any provision of this Modgage to be illegal, invalid, or unenforceable as to any person or
circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other person or 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 Modgage. Unless otherwise required by law, the illegality, invalidity, or unenforceability of any
provision of this Modgage shall not affect lhe legality, validity or enforceability of any other provision of this Modgage.
Merger. There shall be no merger of the interest or estate crealed 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 lhe written consent of Lender.
SuCcessors and Assigns. Subject to any limitations stated in this Modgage on transfer of Grantor's interesl, this Modgage shall be binding upon
and inure to lhe benefit of the padJes, their successors and assigns. If ownership of the Property becomes vested in a person other than Grantor,
Lender, without notice to Grantor, may deal with Granior's successors with reference to this Modgage and the Indebtedness by way of
forbearance or exlension without releasing Grantor from the obligations of this Modgage or liability under lhe 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 laws of the State of
Wyoming 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 lhe
Loan No: 275122100
MORTGAGE
(Continued) '" .[ 3 7 Page 7
singular shall include the plural, and the plural shall include the singular, as lhe conlext may require. Words and terms nol otherwise defined in this
Modgage shall have the meanings attributed to such terms in the Uniform Commercial Code:
Borrower. The word "Borrower" means Ace Hardware Home Centers, Inc.; and Edgewaler Ace Hardware, LLC, and all olher persons and entities
signing the Note in whatever capacity.
Defaull. The word "Default" means the Default set fodh in this Modgage in the section titled "Default".
Environmenlal Laws. The words "Environmental Laws" mean any and all state, federal and local stalutes, regulations and ordinances relating 1o
the protection of human health or the environment, including wilhout 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 Reaulhorization Act of 1986, Pub.
L. No. 99-499 ("SARA"), the Hazardous Malerials Transpodalion Act, 49 U.S.C. Section 1801, el seq., the Resource Conservation and Recovery
Acl, 42 U.S.C. Section 6901, et seq., or olher applicable federal laws, rules, or regulations adopled pursuant thereto.
Evenl of Default. The words "Event of Default" mean any of lhe evenls of default set fodh in this Modgage in lhe evenls of default section of this
Modgage.
Existing Indebledness. The words "Existing Indebtedness" mean the indebtedness described in the Existing Liens provision of this Modgage.
Grantor. The word "Grantor" means Randal J. Hruska and Pamela Hruska.
Guarantor. The word "Guarantor" means any guarantor, surety, or accommodation party of any or all of the Indebtedness.
Guaranty. The word "Guaranty" means the guaranty from Grantor to Lender, including withoul limilation a guaranty of all or pad of the Note.
Hazardous Substances. The words "Hazardous Substances" mean materials that, because of their quantity, concentration or physical, chemical
or infeclious characteristics, may cause or pose a present or potential hazard to human health or the environment when improperly used, trealed,
slored, 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 limilation, petroleum and pelroleum by-products or any fraction
thereof and asbestos.
Improvemenls. The word "lmprovemenls" means all existing and future improvements, buildings, structures, mobile homes affixed on lhe Real
Property, facilities, additions, replacements and other construction on the Real Property.
Indebtedness. The word "Indebtedness" means all obligations of Grantor under the Guaranty, logether with all renewals of, extensions of,
modifications of, consolidations of and substitutions for the obligations under the Guaranty and any amounts expended or advanced by Lender to
discharge Grantor's obligations or expenses incurred by Lender to enforce Grantor's obligations under this Modgage, together with inlerest on
such amounts as provided in this Modgage.
Lender. The word "Lender" means National Cooperative Bank, its successors and assigns.
Mortgage. The word "Modgage" means Ibis Modgage between Grantor and Lender.
Note. The word "Note" means the Promissory Note deled February 3, 2003 in the original total principal amounts of $1,435,000.00 from the
Borrower to Lender, logether with renewals of, extensions of, modifications of, refinancings of, consolidations of and substitutions for the
Promissory Note or Agreement. Such original principal amount being the aggregate principal amounts loaned by Lender in connection with it's
loan number's #275122100, 275123300 and 275123200.
Personal Properly. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter owned
by Grantor, and now or hereafter 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 properly; and together with all proceeds (including wilhout limitation all insurance proceeds and refunds of
premiums) from any sale or other disposition of the Property.
Properly. The word "Property" means collectively the Real Property and the Personal Property.
Real ProPerty. The words "Real Property" mean the real property, interests and rights, as fudher described in this Modgage.
Relaled Documenls. The words "Related Documents" mean all promissory notes, credit agreemenls, loan agreements, environmental
agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness.
Rents. The word "Rents" means all present and future rents, revenues, income, issues, royalties, profits, and other benefils derived from the
Property.
EACH GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND EACH GRANTOR AGREES TO ITS
TERMS.
GRANTOR:
Pamela Hruska, Indl~taually r
Loan No: 275122100
MORTGAGE O~?,~%
(Continued) ~- 1 3 8 Page 8
INDIVIDUAL ACKNOWLEDGMENT ,,, .......
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On this day before me, the undersigned Nota~ Public, personally appeared Randal J. Hru~a and Pamela HrU~~~ndividuals
described in and who executed lhe Modgage, and acknowledged lhal lhey signed the Modgage as their free and~~~ f°r the uses
and purposes therein menlioned. ~
Given~ my hand and officlalTal this day of