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HomeMy WebLinkAbout89736789736 RECEIVED LINCOLN COUNTY CLERI< Space Above This Line For Recording Data MORTGAGE DATE AND PARTIES. The date of this Mortgage (Security Instrument) is February 19, 2004. The pames and their addresses are: MORTGAGOR: JOHN S. SAWAYA PO Box 108 Kernmerer, Wyoming 83101 MARY O. SAWAYA husband and wife PO Box 108 Kemmerer, Wyoming 83101 LENDER: COMMUNITY FIRST NATIONAL BANK Organized and existing under the laws of the United States of America 801 Pine Avenue ~ffy'j~ Kemmerer, Wyoming 83101 1. CONVEYANCE. For good and valuable consideration, the receipt and sufficiency of which is acknowledged, and to secure the Secured Debts and Mortgagor's performance under this Security Instrument, Mortgagor grants, bargains, conveys, mortgages and warrants to Lender, with the power of sale, the following described property: Parcel 1 - A parcel of land situated in the SE'ASE'A of Section 23, T21N, R116W of the 6th P.M., Lincoln County, Wyoming described in particular as follows: Beginning at a point N47°42'W, 516.5 feet from the Southeast Corner of said Section 23; thence S9°40'E, 49 feet; thence S78°57'W, 126.5 feet; thence N9°40'W, 49 feet; thence N78°57'E, 126.5 feet to the place of beginning AND John S. Sawaya Wyoming Mod[gage WY/4XjlochthOO6OO000003657015021804Y 1996 Ban,~ems, In., St. Cloud, MN ?' 505 Parcel 2- Lot 2 of Block 9 of the Original Town of Kemmerer, Lincoln County, Wyoming as described on the official plat thereof The property is located in Lincoln County at 303 Paper Collar Row, Diamondville, Wyoming 83116 AND 910 Cedar Avenue, Kemmerer, Wyoming 83101. Together with all rights, easements, appurtenances, royalties, mineral rights, oil and gas rights, crops; timber, all diversion payments or third party payments made to crop producers and all existing and future improvements, structures, fixtures, and replacements that may now, or at any time in the future, be part of the real estate described (all referred to as Property). This Security Instrument will remain in effect until the Secured Debts and all underlying agreements have been terminated in writing by Lender. J 2. MAXIMUM OBLIGATION LIMIT. The total principal amount secured by this Security Instrument at any one time will not exceed $35,685.50. This limitation of amount does not include interest and other fees and charges validly made pursuant to this Security Instrument. Also, this limitation does not apply to advances made under the terms of this Security Instrument to protect Lender's security and to perform any of the covenants contained in this Security Instrument. 3. SECURED DEBTS. This Security Instrument will secure the following Secured Debts: A. Specific Debts. The following debts and all extensions, renewals, refinancings, modifications and replacements. A promissory note, No. 3888602640, dated February 19, 2004, from Mortgagor to Lender, with a loan amount of $35,685.50 with an interest rate based on the then current index value as the promissory note prescribes and maturing on February 28, 2014. B. Sums Advanced. All sums advanced and expenses incurred by Lender under the terms of this Security Instrument. 4. PAYMENTS. Mortgagor agrees that all payments under the Secured Debts will be paid when due and in accordance with the terms of the Secured Debts and this Security Instrument. 5. PRIOR SECURITY INTERESTS. With regard to any other mortgage, deed of trust, security agreement or other lien document that created a prior security interest or encumbrance on the Property, Mortgagor agrees: A. To make all payments when due and to perform or comply with all covenants. B. To promptly deliver to Lender any notices that Mortgagor receives from the holder. C. Not to allow any modification or extension of, nor to request any future advances under any note or agreement secured by the lien document without Lender's prior written consent. 6. CLAIMS AGAINST TITLE. Mortgagor will pay all taxes, assessments, liens, encumbrances, lease payments, ground rents, utilities, and other charges relating to the Property when due. Lender may require Mortgagor to provide to Lender copies of all notices that such amounts are due and the receipts evidencing Mortgagor's payment. Mortgagor will defend title to the Property against any claims that would impair the lien of this Security Instrument. Mortgagor agrees to assign to Lender, as requested by Lender, any rights, claims or defenses Mortgagor may have against parties who supply labor or materials to maintain or improve the Property. 7. DUE ON SALE. Lender may, at its option, declare the entire balance of the Secured Debts to be immediately due and payable upon the creation of, or contract for the creation of, a transfer or sale of the PrOperty, This right ~s subject to the restrictions imposed by federal law governing the preemption of state due-on-sale laws, as applicable. 8. WARRANTIES AND REPRESENTATIONS. Mortgagor has the right and authority to enter into this SecUrity Instrument. The execution and delivery of this Security Instrument will not violate any agreement governing Mortgagor or to which Mortgagor is a party. 9. PROPERTY CONDITION, ALTERATIONS AND INSPECTION. Mortgagor will keep the Property in good condition and make all repairs that are reasonably necessary. Mortgagor will not commit or allow any waste, impairment, or deterioration of the Property. Mortgagor will keep the Property free of noxious weeds and grasses. Mortgagor agrees that the nature of the occupancy and use wil not substantially change without Lender's prior written consent Mortgagor will not permit any change in any license, restrictive covenant or easement without Lender's prior written consent. Mortgagor will notify Lender of all demands, proceedings, claims, and actions against Mortgagor, and of any loss or damage to the Property. ©1996 Bar,,'-;.,;9.q, -'ems Inc., St, Cloud, MN ~xib-"'~." i;; ~:',',::;;:::?. ' John S. Sawaya Wyoming Morlgage WY/4XjlochthOC-" ~; - - - -~3657015021804Y No portion of the Property will be removed, demolished or materially altered without Lender's prior written consent except that Mortgagor has the right to remove items of personal property comprising a part of the Property that become worn or obsolete, provided that. such personal property is replaced with other personal property at least equal in value to the replaced personal property, free from any title retention device, security agreement or other encumbrance. Such replacement of personal property will be deemed subject to the security interest created by this Security Instrument. Mortgagor will 'not partition or subdivide the Property without Lender's prior written ,consent. Lender or Lender's agents may, at Lender's option, enter the Property at any reasonable time for the purpose of inspecting the Property. Lender will give Mortgagor notice at the time of or before an inspection specifying a reasonable purpose for the inspection. Any inspection of the Property will be entirely for Lender's benefit and Mortgagor will in no way rely on Lender's inspection, 10. AUTHORITY TO PERFORM. If Mortgagor fails to perform any duty or any of the covenants contained in this Security Instrument, Lender may, without notice, perform or cause them to be performed. Mortgagor appoints Lender as attorney in fact to sign Mortgagor's name or pay any amount necessary for performance. Lender's right to perform for Mortgagor will not create an obligation to perform, and Lender's failure to perform will not preclude Lender from exercising an'y of Lender's other rights under the law or this Security Instrument. If any construction on the Property is discontinued or not carried on in a reasonable manner, Lender may take all steps necessary to protect Lender's security interest in the Property, including completion of the construction. 1 1. DEFAULT. Mortgagor wil~ be in default if any of the following occur: A. Payments. Mortgagor fails to make a payment in full when due. B. Insolvency. Mortgagor makes an assignment for the benefit of creditors or becomes insolvent, either because Mortgagor's liabilities exceed Mortgagor's assets or Mortgagor is unable to pay Mortgagor's debts as they become due. C. Death or Incompetency. Mortgagor dies or is declared legally incompetent. D. Failure to Perform. Mortgagor fails to perform any condition or to keep any promise or covenant of this Security Instrument, E. Ot er Documents. A default occurs under the terms of any other transaction document. F. Other Agreements. Mortgagor is in default on any other debt or agreement Mortgagor has with Lender. , G. Misrepresentation. Mortgagor makes any verbal or written statement or provides any financial information that is untrue, inaccurate, or conceals a material fact at the time it is made or provided. H. Judgment. Mortgagor fails to satisfy or appeal any judgment against Mortgagor. I. Forfeiture. The Property is used in a manner or for a purpose that threatens confiscation by a legal authority. J. Name Change. Mortgagor changes M°rtgagor's name or assumes an additional name without notifying Lender before making such a change. K. Property Transfer. Mortgagor. transfers all or a substantial part of Mortgagor's money or property. This condition of default, as it relates to the transfer of the Property, is subject to the restrictions contained in the DUE ON SALE section.. L. Property Value. The value of the PropertY declines or is impaired. M. Insecurity. Lender reasonably believes that Lender is insecure. 12. REMEDIES. Lender may use any and all remedies Lender has under state or federal law or in any instrument evidencing or pertaining to the Secured Debts, including, without limit'ation, the power to sell the Property. Any amounts advanced on Mortgagor's behalf will be immediately due and may be added to the balance owing under the Secured Debts. Lender may make a claim for any and all insurance benefits or refunds that may be available on Mortgagor's default. Subject to any right to cure, required time schedules or any Other notice rights Mortgagor may have under federal and state law, Lender may make all or any part of the amount Owing by the terms of the Secured Debts immediately due and foreclose this Security Instrument in a manner provided by law upon the occurrence of a default or anytime thereafter. Upon any Sale of the Property, Lender will make and deliver a special or limited warranty deed that conveys the property sold to the purchaser or purchasers. Under this special or limited warranty deed, Lender will covenant that Lender has not caused or allowed a lien or an encumbrance to burden the Property and that Lender will specially warrant and defend the Property's title of the purchaser or purchasers at the sale against all lawful clai~;~s John S. Sawaya ' - ~ ~" '~ Wyoming Mortgage · Ini and demand of all persons claiming by, through or under kender. prima facie evidence of the facts set forth therein. · ' 51C, The ~ecitals in any deed of conveyance will be All remedies are distinct, cumulative and not exclusive, and the Lender is entitled to all remedies provided at law or equity, whether or not. expressly set forth. The acceptance by Lender of any sum in payment or partial payment on the Secured Debts after the balance is due or is accelerated or after foreclosure proceedings are filed will not constitute a waiver of Lender's right to require full and complete cure of any existing default. By not exercising any remedy, Lender does not waive Lender's right to later consider the event a default if it continues or happens again. 13. COLLECTION EXPENSES AND ATTORNEYS' FEES. On or after Default, to the extent permitted by law, Mortgagor agrees to pay all expenses of collection, enforcement or protection of Lender's rights and remedies under this Security Instrument. Mortgagor agrees to pay expenses for Lender to inspect and preserve the Property and for any recordation costs of releasing the Property from this Security Instrument. Expenses includej but are not limited to, reasonable attorneys' fees after' default and referral to an attorney not a salaried employee of the Lender. These expenses are due and payable immediately. If not paid immediately, these expenses will bear interest from the date of payment until paid in full at the highest interest rate in effect as provided for in the terms of the Secured Debts. To the extent permitted by the United States Bankruptcy Code, Mortgagor agrees to pay the reasonable attorneys' lees Lender incurs to collect the Secured Debts as awarded by any court exercising jUrisdiction under the Bankruptcy Code. 14. ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES. As used in this section, (1) Environmental Law means, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), all other federal, state and local laws, regulations, ordinances, court orders, attorney general opinions or interpretive letters concerning the public health, safety, welfare, environment or a hazardous substance; and (2) Hazardous Substance means any toxic, radioactive or hazardous material, waste, pollutant or contaminant which has characteristics which render the substance dangerous or potentially dangerous to the public health, safety, welfare or environment. The term includes, without limitation, any substances defined as "hazardous material," "toxic substance," "hazardous waste," "hazardous substance," or "regulated substance" under any Environmental Law. Mortgagor represents, warrants and agrees that; A. Except as previously disclosed and acknowledged in writing to Lender, no Hazardous Substance has been, is, or will be located, transporte, d, manufactured, treated, refined, or handled by any person on, under or about the Property, except in the ordinary course of business and in strict compliance with all applicable Environmental Law. B. Except as previOusly disclosed and acknowledged in writing to'Lender, Mortgagor has not and will not cause, contribute to, or permit the release of any Hazardous Substance on the Property. C. Mortgagor will immediately notify Lender if (1) a release or threatened release of Hazardous Substance occurs on, under or about the Property or migrates or threatens to migrate from nearby property; or (2) there is a violation of any Environmental Law concerning the Property. In such an event, Mortgagor will take all necessary remedial action in accordance with Environmental Law. D. Except' as previously disclosed and acknowledged in writing to Lender, Mortgagor has no knowledge of or reason to believe there is any pending or threatened investigation, claim, or proceeding-of any kind relating to (1) any Hazardous Substance located on, under or about the Property; or (2) any violation by Mortgagor or any tenant of any Environmental Law. Mortgagor will immediately notify Lender in writing as Soon as Mortgagor has reason to believe there is any such pending or threatened investigation, claim, or proceeding. In such an event, Lender has the right, but not the obligation, to participate in any such proceeding including the right to receive copies of any documents relating to such proceedings. E. Except as previously disclosed and acknowledged in writing to Lender, Mortgagor and every tenant have been, are and will remain in full compliance with any applicable Environmental Law. F. Except as previously disclosed and acknowledged in writing to Lender, there are no underground storage tanks, private dumps or open wells located on or under the Property and no such tank, dump or well will be added unless Lender first consents in writing. G. Mortgagor will regularly inspect the Property, monitor the activities and operations on the Property, and confirm that all permits, licenses or approvals required by any applicable Environmental Law are obtained and complied with. John S. Sawaya Wyoming Mortgage I WY/4XjlochthO~f~n~r~nr~n~33657015021804Y O1996 Banker.~.S~stems, inc., St. Cloud, MN H. Mortgagor will permit, or cause any tenant to permit, kender or Lender's agent to enter and inspect the Property and review all records at any reasonable time to determine (1) the existence, location and nature of any Hazardous Substance on, under or about the Property; (2) the existence, location, nature, and magnitude of any Hazardous Substance that has been released on, under or about the Property; or (3J whether or not Mortgagor arid any tenant are in compliance with applicable Environmental Law. [. Upon Lender's request and at any time, Mortgagor agrees, at Mortgagor!s expense, to engage a qualified environmental engineer to prepare an environmental audit of.the Property and to submit the results of such audit to Lender. The choice of the environmental engineer who 'will perform such audit is subject to Lender's approval. J. Lender has the right, but not the obligation, to perform any of Mortgagor's obligations under this section at Mortgagor's expense. K. As a consequence of any breach of any representation, warranty or' Promise made in this section, (1) Mortgagor will indemnify and hold Lender and Lender's successors or assigns harmless from and against all losses, claims, demands, liabilities, damages, cleanup, response and remediation costs, penalties and expenses, including without limitation all costs of litigation and attorneys' fees, which Lender and Lender's successors or assigns may sustain; and (2) at Lender's discretion, Lender may release this Security Instrument and in return Mortgagor will provide Lender with Collateral of at least equal value to the Property secured by this Security Instrument without prejudice to any of Lender's rights under this Security Instrument. L. Notwithstanding any of the language contained in this Security Instrument to the contrary, the terms of this section will survive any foreclosure or satisfaction of this Security Instrument regardless of any passage of title to Lender or any disposition by Lender of any or all of the Property. Any claims and defenses to the contrary are hereby waived. 15. CONDEMNATION. Mortgagor will give Lender prompt notice of any pending or threatened action by private or public entities to purchase or take any or all of the Property through condemnation, eminent domain, or any other means. Mortgagor authorizes Lender to intervene in Mortgago¢'s name in any of the above described actions or claims. Mortgagor assigns to Lender the proceeds of any award or claim for damages connected with a condemn~ation or other taking of all or any part of the Property. Such proceeds will be considered payments and will be aPPlied as provided in this Security InStrument. This assignment of proceeds is subject to the terms of any prior mortgage, deed of trust, security agreement or other lien document. 16. INSURANCE. Mortgagor agrees to keep the Property insured against the risks reasonably associated with the Property. Mortgagor will maintain this insurance in the amounts Lender requires. This insurance will last until the Property is released from this Security Instrument. What Lender requires pursuant to the preceding sentences can change during the term of~ the Secured Debts. Mortgagor may choose the insurance company, subject to Lender's approval, which will not be unreasonably withheld. All insurance policies and renewals will include a standard "mortgage clause" and, where applicable, "'loss payee clause." If required by Lender, Mortgagor agrees to maintain comprehensive general liability insurance and rental loss or business interruption insurance in amounts and under policies acceptable to Lender. The comprehensive general liability insurance must name Lender as an additional insured. The rental loss or business interruption insurance must be in an amount equal to at least coverage of one year's debt Service, and required escrow account deposits (if agreed to separately in writing.) Mortgagor will give Lender and'the insurance company immediate notice of any loss. All insurance proceeds will be applied to restoration or repair of the Property or to the Secured Debts, at Lender's option. If Lender acquires. the Property in damaged condition, Mortgagor's rights to any insurance policies and proceeds will pass to Lender to the extent of the Secured Debts. Mortgagor will immediately notify Lender of cancellation or termination of insurance. If Mortgagor fails to keep the Property insured Lender may obtain insurance to protect Lender's interest in the Property. This insurance may include coverages not originally required of Mortgagor, may be written by a company other than one Mortgagor would choose, and ,may be written at a higher rate than Mortgagor could obtain if Mortgagor purchased the insurance. 17. ESCROW FOR TAXES AND INSURANCE. Mortgagor will not be required to pay to Lender funds for taxes and insurance in escrow. 18. CO-SIGNERS. If Mortgagor signs this Security Instrument but does not sign the Secured Debts, Mortgagor does so only to mortgage Mortgagor's interest in the Property to secure payment of the Secured Debts and Mortgagor does not agree to be personally liable on the Secured Debts. If this SecuritY Instrument sec, cu,,r~ a John S. Sawaya . ' Wyoming Mortgage Initial~f~7_~ _ WY/4XjiochthOnRC~c~nnnnn3657015021804Y ©1996 Balms, Inc., St. Cloud, MN guaranty between Lender and Mortgagor, Mortgagor agrees to waive any rights that may prevent Lender from bringing any action or claim against Mortgagor or any party indebted under the obligation. These rights may include, but are not limited to, any anti-deficiency or one-action ~aws. 19. WAIVERS. Except to the extent prohibited by ~aw, Mortgagor waives a~l homestead exemption rights relating to the Property. 20. FIXTURE FILING. Mortgagor gives to Lender a Security interest in all goods that Mortgagor owns now or in the future and that are or will become fixtures related to the Property. 21. APPLICABLE LAW. This Security Instrument is governed by the laws of Wyoming, except to the extent otherwise required by the laws of the jurisdiction where the ProPerty is located, and the United States of America. 22. JOINT AND'INDIVIDUAL LIABILITY AND sucCEssORS. Each Mortgagor's obligations under this Security Instrument are independent of the obligations of any other Mortgagor. Lender may sue each Mortgagor individually or together with any other Mortgagor. Lender may release any part of the Property and Mortgagor will still be obligated under this Security Instrument for the remaining Property. The duties and benefits of this Security Instrument will bind and benefit the successors and assigns of Lender and Mortgagor. 23. AMENDMENT,. INTEGRATION AND SEVERABILITY. This Security Instrument may not be amended or modified by oral agreement. No amendment or modification of this Security Instrument is effective unless made in writing and executed bY Mortgagor and Lender. This Security Instrument is the complete and final expression of the agreement. If any provision of this Security Instrument is unenforceable, then the unenforceable provision will be severed and the remaining provisions will still be enforceable. 24. INTERPRETATION. Whenever used, the singular includes the plural and the plural includes the singular. The section headings are for convenience only and are not to be used to interpret or define the terms of this Security Instrument. 25. NOTICE, FINANCIAL REPORTS AND ADDITIONAL DOCUMENTS. Unless otherwise required by law, any notice will be given by delivering it or mailing it by first class mail to the appropriate party's address listed in the DATE AND PARTIES section, or to any other address designated in writing. Notice to one party will be deemed to be notice to all parties. Mortgagor will inform Lender in writing of any change in Mortgagor's name, address or other application information. Mortgagor will provide Lender any financial statements or information Lender requests. All financial statements and information Mortgagor gives Lender will be correct and complete. Mortgagor agrees to sign, deliver, and file .any additional documents or certifications that Lender may consider necessary to perfect, continue, and preserve Mortgagor's ob!igations under this Security Instrument and to confirm Lender's lien status on any Property. Time is of the essence. SIGNATURES. By signing, Mortgagor agrees to the terms and covenants contained in this Security Instrument. Mortgagor also acknowledges receipt of a copy of this Security Instrument. M , R: LENDER: Community First Nati,o,~al I~nk (Attest) John S. Sawaya Wyoming Morlgage ©1996 8ank~..S. vstems Inc., St. Cloud, MN ~" WY/4XjlochthOOG0qnnr~nn1657015021804Y ACKNOWLEDGMENT. : ' ' (Individual) This instrument was ackn~wledge~ before me this (Lender Acknowledgm ~' "_ "~ _:: , This instrument was acknowle~ge~before me this Mar, y Lively as ~ ~o~ of Community First National Ban~. My commission expires: ~t-IG -~ ~ ~- , ~ ,~~~.~ ~ot~ry Public) - by by John S. Sawaya Wyoming Mortgage W Y/4XjlochthO0600000003657015021804Y ©1996 BariUms, Inc., St. Cloud, MN Ex~-~" Initials Page 7 .... Space Above This Line For Recording Data ASSIGNMENT OF LEASES AND RENTS DATE AND PARTIES. The date of this ASsignment of Leases and Rents (Assignment) is February 19, 2004. parties and their addresses are: ASSIGNOR: JOHN S. SAWAYA PO Box 108 Kemmerer, Wyoming 83101 MARY O. SAWAYA husband and wife PO Box 108 Kemmerer, Wyoming 83101 The LENDER: COMMUNITY FIRST NATIONAL BANK Organized and existing under the laws of the United States of America 801 Pine Avenue Kemmerer, Wyoming 83101 TIN: 1. MAXIMUM OBLIGATION LIMIT. The total principal amount secured by this Assignment at any one time will not exceed $35,685.50. This limitation of amount does not include interest and other fees and charges validly made pursuant to this Assignment. Also, this limitation does not apply to advances made under the terms of this Assignment to protect Lender's security and to perform any of the covenants contained in this Assignment. 2. SECURED DEBTS. This Assignment will secure the following Secured Debts: A. Specific Debts. 'The following debts and all extensions, renewals,, refinancings, modifications and replacements. A promissory note, No. 3888602640, dated February 19, 2004, from Assignor to Lender, with a loan amount of $35,685.50 with .an interest rate based on the then current index value as the promissory note prescribes and maturing on February 28, 2014. B. Sums Advanced. All sums advanced and expenses incurred by Lender under the terms of this Assignment. 3. ASSIGNMENT OF LEASES AND RENTS. For good and valuable consideration, the receipt and sufficiency of which is acknowledged, and to secure the Secured Debts and Assignor's performance under this Assignment, Assignor assigns, grants, bargains, conveys, mortgages and warrants to Lender as additional security all the right,~ title and interest in the following (all referred to as Property). ,---,.~' John S. Sawaya Wyoming Assignment of Leases and Rents WY/4XjlochthO06000OOOO3657015021804Y ©1996 Bankers Systems, Inc., St. Cloud, MN . . · ~.i~,~?.~,..., · ~: 0S97367 515 A. Existing or future leases, subleases, licenses, guaranties and any other written or verbal agreements for the use and occupancy of the Property, including any extensions, renewals, modifications or replacements (all referred to as Leases). B. Rents, issues and profits (all referred to as Rents), including but not limited to security deposits, minimum rent, percentage rent, additional rent, common area maintenance charges, parking charges, real estate taxes, other applicable taxes, insurance premium contributions, liquidated damages following default, cancellation premiums, "loss of rents" 'nsurance, guest receipts, revenues, royalties, proceeds, bonuses, accounts, contract rights, general intangibles, and all rights and claims which· Assignor may have regarding the Property. C. The term Property as used in this Assignment shall include the following described real property: Parcel 1 - A parcel of land situated in the SE~ASE¼ of Section 23, T21N, R116W of the 6th P.M., Lincoln County, Wyoming described in particular as follows: Beginning at a point N47°42'W, 516.5 feet from the Southeast Corner of said Section 23; thence S9°40'E, 49 feet; thence S78°57'W, 126.5 feet; thence N9°40'W, 49 feet; thence N78°57'E, 126.5 feet to the place of beginning AND Parcel 2 - Lot 2 of Block 9 of the Original Town of Kemmerer, Lincoln County, Wyoming as described on the official plat thereof The plroperty is located in Lincoln County at 303 Paper Collar Row, Diamondville, Wyoming 83116 AND 910 Cedar' Avenue, Kemmerer, Wyoming 83101. In the event any item listed as Leases or Rents is determined to be personal property, this Assignment will also be regarded as a security agreement. 4. PAYMENTS. Assignor agrees that all payments under the Secured Debts will be paid when due and in accordance with the terms of the Secured Debts and this Assignment. 5. COLLECTION OF RENTS. Assignor may collect, receive, enjoy and use the Rents so long as Assignor is not in default. Assignor will not collect in advance any Rents due in future lease periods, unless Assignor- first obtains Lender's written consent. Upon default, Assignor will receive any Rents in trust for Lender and Assignor will not commingle the Rents with any other funds. When Lender so directs, Assignor will endorse and deliver any payments of Rents from the Property to Lender. Amounts collected will be applied at Lender's discretion to the Secured Debts, the costs of managing, protecting and preserving the Property, and other necessary expenses. Assignor agrees that this Assignment is. immediately effective between Assignor and Lender and effective as to third parties on the recording of this Assignment. This Assignment will remain effective during any statutory redemption period until the Secured Debts are satisfied. Unless other'wise prohibited or prescribed by state law, Assignor agrees that Lender may take actual possession of the Property without the necessity of commencing any legal action or proceeding. Assignor agrees that actual possession of the Property is deemed to occur when Lender notifies Assignor of Assignor's default and demands that Assignor and Assignor's tenants pay all Rents due or to be come due directly to Lender. Immediately after Lender gives Assignor the notice of default, Assignor agrees that either Lender or Assignor may immediately notify the tenants and demand that all future Rents be paid directly to Lender. 6. COLLECTION EXPENSES AND ATTORNEYS' FEES. On or after Default, to the extent permitted by law, Assignor agrees to pay all expenses of collection, enforcement or protection of Lender's rights and remedies under this Assignment. Assignor agrees to pay expenses for Lender to inspect and preserve the Property and for any recordation costs of~ releasing the Property from this Assignment.. Expenses include, but are not limited to, reasonable attorneys' fees after default and referral to an attorney not. a salaried employee of the Lender. Thes~ John S. Sawaya ("' /~'/ Wyoming Assignment of Leases and Rents Initi ~ e WY/4XjlochthOO600000003657015021804Y 1996 Ba~ems, Inc., St. Cloud, MN ~_x~-'r:'r:'r:'r:'r~." expenses are due and payable immediately. If not paid immediately, these expenses will bear interest from the date of payment until paid in full at the highest interest rate in effect as provided for in the terms of the Secured Debts. To the extent permitted by the United States Bankruptcy Code, Assignor agrees to pay the reasonable attorneys' fees Lender incurs to collect the Secured Debts as awarded by any court exercising jurisdiction Under the Bankruptcy Code. 7. ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES. As used in this section, (1) Environmental Law means, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), all other federal, state and local laws, regulations, ordinances, court orders, attorney general opinions or interpretive letters concerning the public health, safety, welfare, environment or a hazardous substance; and (2) Hazardous Substance means any toxic, radioactive or hazardous material, waste, pollutant or contaminant which has characteristics which render the substance dangerous or potentially dangerous to the public health, safety, .w. elfare or environment. The term includes, without limitation, any substances defined as "hazardous m~aterial," 'toxic substance," "hazardous waste," ;'hazardous substance," or "regulated substance" under any Environmental Law. Assignor represents, warrants and agrees that: A. Except as previoUsly disclosed and acknowledged in writing to Lender, no Hazardous Substance has been, is, or will be located, transported, manufactured, treated, refined, or handled by any person on, under or about the Property, except in the ordinary course of business and in strict compliance with all applicable Environmental Law. B. Except as previously disclosed and acknowledged in writing to Lender, Assignor has not and will not cause, contribute to, or permit the release of any Hazardous Substance on the Property. C. Assignor will immediately notify Lender if (1) a release or threatened release of Hazardous Substance occurs on, under or about the Property or migrates or threatens to migrate from nearby property; or (2) there is a violation of any Environmental Law concerning the Property. In such an event, Assignor will take all necessary remedial action in accordance with Environmental Law. D. Except as previously disclosed and acknowledged in writing to Lender, Assignor has no knowledge of or reason to believe there is any pending or threatened investigation, claim, or proceeding of any kind relating to (1) any Hazardous Substance located on, under or about the Property; or (2) any violation by Assignor or any .tenant of any Environmental Law. Assignor will immediately notify Lender in writing as soon as Assignor has reason to believe there is any such pending or threatened investigation, claim, or proceeding. In such an event, Lender has the right, but not the obligation, to participate in any such proceeding including the right to receive copies of any documents relating to such proceedings. E. Except as previously disclosed and acknowledged in writing to Lender, Assignor and every tenant have been, are and will remain in full compliance with any applicable Environmental Law. F. Except as previously disclosed and acknowledged in writing to Lender, there are no underground storage tanks, private dumps or open wells located on or under the Property and no such tank, dump or well will be added unless Lender first consents in writing. G. Assignor will regularly inspect the Property, monitor the activities and operations on the Property, and confirm that all permits, liCenses or approvals required by any applicable Environmental Law are obtained and complied with. H. Assignor will permit, or cause any tenant to permit, Lender or Lender's agent to enter and inspect the Property and review all records at any reasonable time to determine (1) the existence, location and nature of any Hazardous Substance on, under or about the Property; (2) the existence, location, nature, and magnitude of any Hazardous Substance that has been released on, under or about the Property; or (3) whether' or not Assignor and any tenant are in compliance with applicable Environmental Law. I. Upon Lender's request and at any time, Assignor agrees, at Assignor's expense, to engage a qualified environmental engineer to prepare an environmental audit of the Property and to submit the results of such audit to Lender. The choice of the environmental engineer who will perform such audit is subject to Lender'.s approval. J. Lender has the right, but not the obligation, to perform any of Assignor's obligations under this seCtion at AssignOr's expense. K. As a consequence of any breach of any representation, warranty or promise made in this section, (1) Assignor will indemnify and hold Lender and Lender's successors or assigns harmless from and against all losses, claims, demands, liabilities, damages, cleanup, response and remediation costs, penalties and expense~7 ,,'"-'",,,t' John $. Sawaya WY/4Xj ochthOO6Onc~c~r~f~¢~.'1657015021804Y ©1996 Banke¢~ Svsterna, including without limitation all costs of litigation and attorneys' fees, which Lender and Lender's successors or assigns may sustain; and (2) at Lender's discretion, Lender may release this Assignment and in return Assignor will provide Lender with collateral of at least equal value to the Property secured by this Assignment without prejudice to any of Lender's rights under this Assignment. L. Notwithstanding any of the language contained in this Assignment to the contrary, the terms of this section will survive any foreclosure or satisfaction of this Assignment regardless of any passage of title to Lender or any disposition by Lender of any or all of the Property. Any claims and defenses to the contrary are hereby waived. 8. CONDEMNATION. Assignor will give Lender prompt notice of any pending or threatened action by private or public entities to purchase or take any or all of the Property through condemnation, eminent domain, or any other means. Assignor authorizes Lender to intervene in Assignor's name in any of the above described actions or claims. Assignor assigns to Lender the proceeds of any award or claim for damages connected with a condemnation or other taking of all or any part of the Property. Such proceeds will be considered payments and will be applied as provided in this Assignment. This assignment of proceeds is subject to the terms of any prior mortgage, deed of trust, security agreement or other lien document. 9. APPOINTMENT OF A RECEIVER. On or after an Assignor's default, Assignor agrees to Lender making an application to the court for an appointment of a receiver for the benefit of Lender to take possession of the Property and the Leases, with the power to 'receive, collect and apply the Rents. Any Rents collected will be applied as the court authorizes to pay taxes, to provide insurance, to make repairs and to pay costs or any other expenses relating to the Property, the Leases and Rents, and any remaining sums shall be applied to the Secured Debts. Assignor agrees that this appointment of a receiver may be without giving bond, without reference to the then-existing value of the Property, and without regard to the insolvency of any person liable for any of the Secured Debts. 10. DUE ON SALE. Lender may, at its option, declare the entire balance of the Secured Debts to be immediately due and payable upon the creation of, or contract for the creation of, a transfer or sale of the Property. This right is subject to the restrictions imposed by federal law governing the preemption of state due-on-sale laws, as applicable. 11. WARRANTIES AND REPRESENTATIONS. Assignor has the right and authority to enter into this Assignment. The execution and delivery of this Assignment will' not violate any agreement governing Assignor or to which Assignor is a party. A. Title. Assignor has good title to the Leases, Rents, and Property and has the right to assign, grant, bargain, convey, mortgage and warrant to Lender as additional security the Leases and Rents, and no other person has any right i.n the Leases and Rents. B. Recordation. Assignor has recorded the Leases as required by law or as Otherwise prudent for the type and use of the Property. C. Default. NO default exists under the Leases, and the parties subject to the Leases have not violated any applicable law on leases, licenses and landlords and tenants. Assignor, at its sole cost and expense, will keep, observe and perform, and require all other parties to the Leases to comply with the Leases and any applicable law. If Assignor or any party to the Lease defaults or fails to observe any applicable law, Assignor will promptly notify Lender. D. Lease Modification. Assignor has not sublet, modified, extended, canceled, or otherwise altered the Leases, or accepted the surrender of the Property covered by the Leases (unless the Leases so require). E. Encumbrance. Assignor has not assigned, compromised, subordinated or encumbered the Leases and Rents. 12. COVENANTS. Assignor agrees to the following covenants: A. Rent Abatement and Insurance. When any Lease provides for an abatement of Rents due to fire, flood or other casualty, Assignor will insure against this risk of loss with a policy satisfactory tO Lender. Assignor may choose the insurance company, subject to Lender's approval, which will not be unreasonably withheld. B. Copies of Leases. Assignor will promptly provide Lender with copies of the Leases and will certify these Leases are true and correct copies. The existing Leases will be provided on execution of the Assignment, and all future Leases 'and any other information with respect to these Leases will be provided immediately after they are executed. C. Right To Rents. After defaUlt and Lender taking the appropriate affirmative action, Assignor will notify all current and future tenants and others obligated under the Leases of Lender's right to the Leases and Rents~ John S. Sawaya ~"""~,~ , Wyoming Assignment of Leases and Rents In 518 D. Accounting. When Lender requests, Assignor will provide to Lender an accounting of Rents, prepared in a form acceptable to Lender, subject to generally accepted accounting principles and certified by Assignor or Assignor's accountant to be current, accurate and complete as of the date requested by Lender. E. Lease Modification. Assignor will not sublet, modify., extend, cancel, or otherwise alter the Leases, or accept the surrender of the Property covered by the Leases (unless the Leases so require) without Lender's written consent. F. Encumbrance, Assignor will not assign, compromise, subordinate or encumber the Leases and Rents without Lender's prior written consent. G. Future Leases. Assignor will not enter into any future Leases without prior written consent from Lender, Assignor will execute and deliver such further assurances and assignments as to these future Leases as Lender requires from time to time. H. Personal Property. Assignor will not sell or remove any personal property on the Property, unless /~ssignor replaces this personal property with like kind for the same or better value. I. Prosecution and Defense of Claims. Assignor will appear in and prosecute its claims or defend its title to the Leases and Rents against any claims that would impair Assignor's interest under this Assignment and, on Lender's request, Assignor will also appear 'n any action or proceeding on behalf of Lender. Assignor agrees to assign to Lender, as requested by Lender, any right, claims or defenses which Assignor may have against parties who supply labor or materials to improve or maintain the leaseholds subject to the Leases and/or the Property. J. Liability and Indemnification. Lender does not assume or become, liable for the Property's maintenance, depreciation, or other losses or damages when Lender acts to manage, protect or prese~rve the Property, except for losses or damages due to Lender's gross negligence or intentional torts. Otherwise, Assignor will indemnify Lender and hold Lender harmless for all liability, loss or damage that Lender may incur when Lender opts to exercise any of its remedies against any party obligated under the Leases. K. Leasehold Estate, Assignor will not cause or permit the leasehold estate under the Leases to merge with Assignor's reversionary interest, and agrees that the Leases shall remain in full force and effect regardless of any merger of the Assignor's interests and of any merger of the interests of Assignor and any party obligated under the Leases. L. Insolvency. Lender will be the creditor of each tenant and of anyone else obligated under the Leases who is subject to an assignment for the benefit of creditors, an insolvency, a dissolution or a receivership proceeding, or a bankruptcy, 13. DEFAULT, Assignor will be in default if any of the following occur: A, Payments. Assignor fails to make a payment in full when due. B. Insolvency. Assignor makes an assignment for the benefit of creditors or becomes insOlvent, either because Assignor's liabilities exceed Assignor's assets or Assignor is unable to pay Assignor's debts as they become due. C, Death or Incompetency, Assignor dies or is declared legally incompetent. D. Failure to Perform, Assignor fails to perform any condition or to keep any promise or covenant of this Assignment. E. Other Documents. A default occurs under the terms of any other transaction document. F. Other Agreements. Assignor is in default on any other debt or agreement Assignor has with Lender. G. Misrepresentation, Assignor makes any verbal or written statement or provides any financial information that is untrue, inaccurate, or conceals a material fact at the time it is made or provided, H. Judgment. Assignor fails to satisfy or appeal any judgment against Assignor. I, Forfeiture. The Property is used in a manner or for a purpose that threatens confiscation by a legal authority, J. Name Change, Assignor changes Assignor's name or assumes an additional name without notifying Lender before making such a change. K, Property Transfer. Assignor transfers all or a substantial part of Assignor's money or property. This condition of default, as it relates to the transfer of the Property, is subject to the restrictions contained in the DUE ON SALE section. L. Property Value. The value of the Property declines or is impaired. M. Insecurity. Lender reasonably believes that Lender ~s insecure. Initials~ John S. Sawaya Wyoming Assignment of Leaees and Rents WY/4Xjlochth00¢' ....... '16 §7015021804Y ©1996 Ban~,~,~,,~,~--ms Inc., St. Cloud, MN ~" 14. REMEDIES. After Assignor defaults, and after Lender gives any legally required notice and opportunity to cure the default, Lender may at Lender's option do any one or more of the following. A. Acceleration. Lender may make all or any part of the amount owing by the terms of the Secured Debts immediately due. B. Additional Security. Lender may demand additional security or additional parties to be obligated to pay the Secured Debts. C. Sources. Lender may use any and all remedies Lender has under Wyoming or federal law or in any instrument evidencing or pertaining to the Secured Debts. D. Insurance Benefits. Lender may make a claim for any and all insurance benefits or refunds that may be available on Assignor's default. E. Payments Made On Assignor's Behalf. Amounts advanced on Assignor's behalf will be immediately due and may be added to the Secured Debts. F. Rents. Lender may terminate Assignor's right to collect Rents and directly collect and retain Rents in Lender's name without taking possession of the Property and to demand, collect, receive, and sue for the Rents, giving proper receipts and releases. In addition, after deducting all reasonable expenses of collection from any collected and retained Rents, Lender may apply the balance as provided for by the Secured Debts. G. Entry. Lender may enter, take possession, manage and operate all or any part of the Property; make, modify, enforce or cancel or accept the surrender of any Leases; obtain or evict any tenants or licensees; increase or reduce Rents; decorate, clean and make repairs or do any other act or incur any other cost Lender deems proper to protect the Property as fully as Assignor could do. Any funds collected from the operation of the Property may be applied in such order as Lender may deem proper, including, but not limited to, payment of the following: operating expenses, management, brokerage; attorneys' and accountants' fees, the Secured Debts, and toward the maintenance of reserves for repair or replacement. Lender may take such action without regard to the adequacy of the security, with or without any action or proceeding, through any person or agent, or receiver to be appointed by a court, and irrespective of Assignor's possession. The collection and application of the Rents or the entry upon and taking possession of the Property as set out in this s~ction shall not cure 'Or waive any notice of default under the Secured Debts, this Assignment, or invalidate any act pursuant to such notice. The enforcement of such remedy by Lender, once exercised, shall continue for so long as Lender shall elect, notwithstanding that such collection and application of Rents may have cured the original default. H. Waiver. Except as otherwise required by law, by choosing any one or more of these remedies you do not give up any other remedy..You do not waive a default if you choose not to use a remedy. By electing not to use any remedy, you do not waive your right to later consider the event a'default and to use any remedies if the default continues or occurs again. lB..TERM. This Assignment will remain in full force and 'effect until the Secured Debts are paid or otherwise discharged and Lender is no longer obligated to advance funds under any loan or credit agreement which is a part of the Secured Debts. If any or all payments of the Secured Debts are subsequently invalidated, declared void or voidable, or set 'aside and are required to be repaid to a trustee, custodian, receiver or any other party under any bankruptcy act or other state, or federal law, then the Secured Debts will be revived and will continue in full force and effect as if this payment had not been made. 16. CO-SIGNERS. If Assignor signs this Assignment but does not sign the Secured Debts, Assignor does so only to assign Assignor's interest in the Property to secure payment of the Secured Debts and Assignor does not agree to be personally liable on the Secured Debts. If this Assignment secures a guaranty between Lender and Assignor, Assignor agrees to waive any rights that may prevent Lender from bringing any action or claim against Assignor or any party indebted under the obligation. These rights may include, but are not limited to, any anti-deficiency or one-action laws. 17. WAIVERS. Except to the extent prohibited by law, Assignor waives all homestead exemption rights relating to the Property. 18. FIXTURE FILING. Assignor gives to Lender a security interest in all goods that Assignor owns now or in the future and that are or will beCome fixtures related to the Property. 19. APPLICABLE LAW. This Assignment is governed by the laws of Wyoming, except to the extent otherwise required by the laws of the jurisdiction where the Property is located, and the United States of America. John S. Sawaya ' Initi Wyoming Assignment of Leases and Rents. WY/4XjlochthO0600000003657015021804Y, . '1996 Bank~._~;~[ff~s, Inc., St. Cloud, MN 20. JOINT AND INDIVIDUAL LIABILITY AND SUCCESSORS, Each Assignor's obligations under this Assignment ar~ independent of the obligations of any other Assignor. Lender may sue each Assignor individually or together with any other Assignor. Lender may release any part of the Property and Assignor will still be obligated under this Assignment for the remaining Property. The duties and benefits of this Assignment will bind and benefit the successors and assigns of Lender and Assignor. 21. AMENDMENT, INTEGRATION AND SEVERABILITY. This Assignment may not be amended or modified by oral agreement. No amendment or modification of this Assignment is effective unless made in writing and executed by Assignor and Lender, This Assignment is the complete and final expression of the agreement. If any provision of this Assignment is unenforceable, then the unenforceable provision will be severed and the remaining provisions will still be enforceable. 22. INTERPRETATION. Whenever used, the singular includes the plural and the plural includes the singular. The section headings are for convenience only and are not to be used to interpret or define the terms of this Assignment. 23. NOTICE, FINANCIAL REPORTS AND ADDITIONAL DOCUMENTS. Unless otherwise required by law, any notice will be given by delivering it or mailing it by first class mail to the appropriate, party's address listed in the DATE AND PARTIES section, or to any other address designated in writing. Notice to one party will be deemed to be notice to all parties. Assignor will inform Lender in writing of any change in Assignor's name, address or other application information. Assignor will provide Lender any financial statements or information Lender requests. All financial statements and information Assignor gives Lender will be correct and complete. Assignor agrees to sign, deliver, and file any additional documents or certifications that Lender may consider necessary to perfect, continue, and preserve Assignor's obligations under this Assignment and to confirm Lender's lien status on any Property. Time is of the essence. SIGNATURES. By s~gning, Assignor agrees to the terms and covenants contained in this Assignment. also acknowledges receipt of a copy of this Assignment. Assignor LENDER: Community First National Bank MaryL~,ly / - (Attest) ACKNOWLEDGMENT. (Individual) This instrument was ack~-owledgJed before me thts I~ day of John S. Sawaya, and Mary O. Sawaya, husband and wife. My commission expires: 11-14-7--o0 ~1 SS. , ~9o~ by John S. Sawaya Wyoming Assignment of Leases and Rents WY/4XjlochthO06OOOOOOO3657015021804Y ©1996 Rankers Systems, Inc., St. Cloud, MN ~" (Lender Acknowledgment) 0 ~ · ~- j ~ This instrument was acknowledged before me this Mary Lively as L~o,,Ix, ~)-/c-'-~' _~r- ' My commission expires: l[-l(~, zoot/ OF L( ~ (0Jo--, ss. day of of Community First ~atio~ Bahk. (Notary Public) by John S. Sawaya Wyoming Assignment of Leases and Rents WY/4XilochthO0600000003657015021804Y ©1996 Bank~.%ms, Inc., St. Cloud, MN ~x~----------~~ Initials :2-"~-T:: -'~ Page 8