EXHIBIT 10.9
PROMISSORY NOTE
AND PLEDGE AGREEMENT
$315,000.00
EAGAN, MN
FEBRUARY 20, 2002
FOR VALUE RECEIVED ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (jointly
and severally, the "Pledgor" or "Maker") promise to pay to the Pledgee, or its
assigns, the principal sum of Three Hundred Fifteen Thousand and No/100th
Dollars ($315,000.00), with interest from the date hereof at the Interest Rate,
as calculated herebelow. The Interest Rate shall be calculated on the first day
of each fiscal quarter ("Adjustment Date") of Buffets, Inc.'s ("Buffets") fiscal
year and be applicable until recalculated at the commencement of each ensuing
quarter. In each instance, the Interest Rate shall equal the weighted average
interest rate payable by Buffets under Buffets' Sr. Credit Agreement with ▇▇▇▇▇▇
Brothers, Inc. in the quarter preceding each Adjustment Date (the "Interest
Rate"). In the event that such Sr. Credit Agreement is replaced with other
senior secured lending, the Interest Rate shall be adjusted to equal the
weighted average interest rate payable by Buffets under such replacement
lending. If either (a) Buffets is unable to calculate the Interest Rate in the
manner set forth in this paragraph for any reason, or (b) the Interest Rate
exceeds 12% as calculated herein, or (c) a disagreement arises between Pledgor
and Pledgee as to the calculation of the Interest Rate; then in any such event
the Interest rate shall revert to a fixed value equal to the Default Rate
defined below for the period during which such circumstance (a), (b) or (c)
exists.
Interest shall be calculated on the unpaid balance until paid
or until default, both principal and interest payable in lawful money of the
United States of America, at the office of Buffets Holdings, Inc., ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such place as the legal holder hereof may designate
in writing. The principal and interest shall be due and payable as follows:
The principal (together with accrued but unpaid interest) shall be due
upon the first to occur of (i) September 28, 2007, (ii) except as set
forth below, upon the termination of the Pledgor's employment with
Buffets, Inc. or (iii) Pledgor's sale, disposition or other transfer of
the real property described as ▇▇▇ ▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Addition, Hennepin County, Minnesota, which property is the subject of
a Mortgage entered into by Pledgor on behalf of Pledgee ("Mortgaged
Property"), or (iv) the Pledgor's sale, disposition or other transfer
of any Common Stock pledged pursuant to this instrument (it being
agreed that in the event of a partial sale pursuant to the exercise of
"tag along rights" under Section 4.5 of the Stockholders Agreement
between Pledgee and Pledgor ("Stockholders Agreement") or the exercise
of drag along rights under Section 4.7 of the Stockholders Agreement,
the proportion of principal and accrued but unpaid interest that shall
be due shall be the same as the proportion of the total number of
shares of the Pledgor's Common Stock sold pursuant to such Section 4.5
or 4.7).
Interest shall be payable on each April 30 during the term of this
Note, commencing on April 30, 2003 (it being agreed that the annual
date upon which interest shall be due hereunder will be adjusted if the
date on which payments of executive bonuses paid by Pledgee's
subsidiaries is changed so that such interest payment date occurs after
the bonus payment date; it being further agreed that if no bonus is
payable for a particular year the interest under this note will
nonetheless remain due and payable on April 30 of each affected year),
with the final payment due at maturity.
This Note may be prepaid in full or in part at any time or
from time to time, without penalty or premium.
In the event of (a) default in payment of the principal or
interest hereof as the same becomes due and such default is not cured within ten
(10) days from the due date, (b) default under the terms of any other provision
hereof or any instrument securing this Note, (c) default in payment of the
principal or interest of any other note ("Other Note") payable by Pledgor (or
any one or both parties constituting Pledgor) to Pledgee and such default is not
cured within ten (10) days from the due date, (d) default under the terms of any
other provision of such Other Note, or instruments securing the Other Note, (any
of the foregoing events being deemed an "Event of Default"), and, in the case of
clause (b) or (d), such default is not cured within fifteen (15) days after
written notice to maker, then in any such event the holder of this Note may
without further notice, declare the remainder of the principal sum, together
with all interest accrued thereon, at once due and payable. Failure to exercise
this right shall not constitute a waiver of the right to exercise the same at
any other time. Following such default the unpaid principal of this Note and any
part thereof, and, to the extent permitted by applicable law, accrued interest
and all other sums due under this Note, if any, shall bear interest at the rate
of Twelve percent (12%) per annum ("Default Rate").
All parties to this Note, including maker and any sureties,
endorsers or guarantors, hereby waive protest, presentment, notice of dishonor
and notice of acceleration of maturity and agree to continue to remain bound for
the payment of principal, interest and all other sums due under this Note
notwithstanding any change or changes by way of release, surrender, exchange,
modification or substitution of any security for this Note or by way of any
extension or extensions of time for the payment of principal and interest, and
all such parties waive all and every kind of notice of such change or changes
and agree that the same may be made without notice or consent of any of them.
As collateral security for the full and timely payment, performance and
observance of the Pledgor's indebtedness under this Note, the Pledgor herewith
deposits and pledges with the Pledgee, in form transferable for delivery, and
grants to the Pledgee a security interest in Forty Eight Thousand Seven Hundred
Fifty (48,750) shares of Common Stock of the Pledgee and the certificates
evidencing same and such additional cash, securities or other property at any
time and from time to time receivable in respect of the Common Stock hereunder
or otherwise distributed in respect of or in exchange for
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any or all such shares (herein collectively called the "Pledged Securities").
Upon payment of amounts owed hereunder, as well as payments owed under the Other
Note, shares subject to pledge hereunder shall be released. Following a partial
sale pursuant to the tag along or drag along rights under the Stockholders
Agreement, any proceeds in excess of amounts required to repay the principal and
accrued but unpaid interest of this Note that becomes due upon such sale shall
be released from the lien of this Note and may be retained by Pledgor. As
further collateral for the full and timely payment, performance and observance
of the Pledgor's indebtedness under this Note, Pledgor agrees to grant Pledgee a
security interest in the Mortgaged Real Property pursuant to a separate mortgage
document ("Mortgage").
Upon default, in addition to Pledgee's rights under the
Mortgage, the holder of this Note shall have the rights and remedies afforded to
the holder of a perfected security interest in the Pledged Securities (as
defined below) under the New York Uniform Commercial Code and may employ an
attorney to enforce the holder's rights and remedies and the maker, principal,
surety, guarantor and endorsers of this Note hereby agree to pay to the holder
reasonable attorneys fees, plus all other reasonable expenses incurred by the
holder in exercising any of the holder's rights and remedies upon default. The
rights and remedies of the holder as provided in this Note and any instrument
securing this Note shall be cumulative and may be pursued singly, successively
or together against any funds, property or security held by the holder for
payment or security, in the sole discretion of the holder. The failure to
exercise any such right or remedy shall not be a waiver or release of such
rights or remedies or the right to exercise any of them at another time.
At any time that there shall exist any condition, event or act
which constitutes an Event of Default under this Note, the Pledgee may cause all
or any of the Pledged Securities to be transferred to or registered in its name
or the name of its nominee or nominees.
So long as there shall exist no condition, event or act which
constitutes an Event of Default under this Note, or which, with notice or lapse
of time or both, would constitute an Event of Default under this Note, the
Pledgor shall be entitled to receive and retain for his own account any and all
dividends (other than stock or liquidating dividends) at any time and from time
to time declared or paid upon any of the Pledged Securities.
So long as there shall exist a condition, event or act which
constitutes an Event of Default under this Note, or which, with notice or lapse
of time or both, would constitute an Event of Default under this Note, the
Pledgee shall be entitled to receive and retain, as additional collateral
hereunder, any and all dividends at any time and from time to time declared or
paid upon any of the Pledged Securities.
The Pledged Securities shall be subject to certain puts, calls
and transfer restrictions as set forth in a separate stockholders agreement. If
the Company fails to exercise its call rights under, or to pay the full amount
payable following exercise of a
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call right or a put right by the Pledgor as set forth in such stockholders
agreement, this Note shall not become due until such payment is made.
In case, upon the dissolution or liquidation (in whole or in
part) of the issuer of any of the Pledged Securities, any sum shall be paid as a
liquidating dividend or otherwise upon or with respect to any of the Pledged
Securities, such sum shall be paid over to the Pledgee, to be held by the
Pledgee as additional collateral hereunder. In case any stock dividend shall be
declared on any of the Pledged Securities, or any distribution of capital shall
be made on any of the Pledged Securities, or any shares, obligations or other
property shall be distributed upon or with respect to the Pledged Securities
pursuant to a recapitalization or reclassification of the capital of the issuer
thereof, or pursuant to the dissolution, liquidation (in whole or in part),
bankruptcy or reorganization of such issuer, or to the merger or consolidation
of such issuer with or into another corporation, the shares, obligations or
other property so distributed shall be delivered to the Pledgee, to be held by
it as additional collateral hereunder, and all of the same (other than cash)
shall constitute Pledged Securities for all purposes hereof.
Any cash received and retained by the Pledgee as additional
collateral hereunder pursuant to the foregoing provisions shall be promptly
applied by the Pledgee first to the payment of interest and then to the payment
of principal due under the Note.
THIS NOTE IS TO BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
The Pledgor hereby represents that (i) there are no liens on
the Pledged Securities; (ii) he has the capacity and authority to execute and
deliver this Note and to perform the provisions hereof; (iii) this Note
constitutes a legal and binding obligation of the Pledgor enforceable against
the Pledgor in accordance with its terms; and (iv) no consents or authorizations
are required in connection with the execution, delivery or performance by the
Pledgor of this Note.
IN WITNESS WHEREOF, the Pledgor has hereunto set his hand and
the Pledgee has caused this Note to be duly executed by one of its officers duly
authorized as of the day and year first above written.
PLEDGOR ("MAKER") [JOINTLY AND SEVERALLY]
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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PLEDGEE:
BUFFETS HOLDINGS, INC.
By: /s/ H. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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H. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Counsel
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EXHIBIT 10.9
After Recording Return To:
H. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, EVP
Buffets Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
- - - - - - - - - - - [SPACE ABOVE THIS LINE FOR RECORDING DATA] - - - - - - -
MORTGAGE
DEFINITIONS
Words used in multiple sections of this document are defined below and
other words are defined in Sections 3, 11, 13, 18, 20 and 21. Certain rules
regarding the usage of words used in this document are also provided in
Section 16.
(A) "SECURITY INSTRUMENT" means this document, which is dated February 20, 2002,
together with all Riders to this document.
(B) "BORROWER" is ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. Borrower is the mortgagor
under this Security Instrument.
(C) "LENDER" is Buffets Holdings, Inc. Lender is a corporation organized and
existing under the laws of Delaware. Lender's address is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇,
▇▇ ▇▇▇▇▇. Lender is the mortgagee under this Security Instrument.
(D) "NOTE" means the promissory note signed by Borrower and dated February 20,
2002. The Note states that Borrower owes Lender Three Hundred Fifteen Thousand
and No/100's Dollars (U.S. $315,000.00) plus interest. Borrower has promised
make regular payments under the note and to pay the debt off in full on
September 20, 2007 or such earlier date specified in the Note.
(E) "PROPERTY" means the property that is described below under the heading
"Transfer of Rights in the Property."
(F) "LOAN" means the debt evidenced by the Note, plus interest, any prepayment
charges and late charges due under the Note, and all sums due under this
Security Instrument, plus interest.
(G) "RIDERS" (Not applicable)
(H) "APPLICABLE LAW" means all controlling applicable federal, state and local
statutes, regulations, ordinances and administrative rules and orders (that have
the effect of law) as well as all applicable final, non-appealable judicial
opinions.
Page 1 of 14
(I) "COMMUNITY ASSOCIATION DUES, FEES, AND ASSESSMENTS" means all dues, fees,
assessments and other charges that are imposed on Borrower or the Property by a
condominium association, homeowners association or similar organization.
(J) "ELECTRONIC FUNDS TRANSFER" means any transfer of funds, other than a
transaction originated by check, draft, or similar paper instrument, which is
initiated through an electronic terminal, telephonic instrument, computer, or
magnetic tape so as to order, instruct, or authorize a financial institution to
debit or credit an account. Such term includes, but is not limited to,
point-of-sale transfers, automated teller machine transactions, transfers
initiated by telephone, which transfers, and automated clearinghouse transfers.
(K) "ESCROW ITEMS" means those items that are described in Section 3.
(L) "MISCELLANEOUS PROCEEDS" means any compensation, settlement, award of
damages, or proceeds paid by any third party (other than insurance proceeds paid
under the coverages described in Section 5) for: (i) damage to, or destruction
of, the Property; (ii) condemnation or other taking of all or any part of the
Property; (iii) conveyance in lieu of condemnation; or (iv) misrepresentations
of, or omissions as to, the value and/or condition of the Property.
(M) "MORTGAGE INSURANCE" means insurance protecting Lender against the
nonpayment of, or default on, the Loan.
(N) "PERIODIC PAYMENT" means the regularly scheduled amount due for (i)
principal and interest under the Note, plus (ii) any amounts under Section 3 of
this Security Instrument.
(O) "RESPA" means the Real Estate Settlement Procedures Act (12 U.S.C. ss.2601
et seq.) and its implementing regulation, Regulation X (24 C.F.R. Part 3500), as
they might be amended from time to time, or any additional or successor
legislation or regulation that governs the same subject matter. As used in this
Security Instrument, "RESPA" refers to all requirements and restrictions that
are imposed in regard to a "federally related mortgage loan" even if the Loan
does not qualify as a "federally related mortgage loan" under RESPA.
(P) "SUCCESSOR IN INTEREST OF BORROWER" means any party that has taken title to
the Property, whether or not that party has assumed Borrower's obligations under
the Note and/or this Security Instrument.
TRANSFER OF RIGHTS IN THE PROPERTY
This Security Instrument secures to Lender: (i) the repayment of the Loan, and
all renewals, extensions and modifications of the Note; and (ii) the performance
of Borrower's covenants and agreements under this Security Instrument and the
Note. For this purpose Borrower does hereby mortgage, grant and convey to Lender
and Lender's successors and assigns, with power of sale, the following described
property located in the city of Eden Prairie, Hennepin County, Minnesota:
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▇▇▇ ▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
TOGETHER WITH all the improvements now or hereafter erected on the property, and
all easements, appurtenances, and fixtures now or hereafter a part of the
property. All replacements and additions shall also be covered by this Security
Instrument. All of the foregoing is referred to in this Security Instrument as
the "Property."
BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby
conveyed and has the right to mortgage, grant and convey the Property and that
the Property is unencumbered, except for encumbrances of record. Borrower
warrants and will defend generally the title to the Property against all claims
and demands, subject to any encumbrances of record.
THIS SECURITY INSTRUMENT combines uniform covenants for national use and
non-uniform covenants with limited variations by jurisdiction to constitute a
uniform security instrument covering real property.
UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:
1. PAYMENT OF PRINCIPAL, INTEREST, ESCROW ITEMS, PREPAYMENT
CHARGES, AND LATE CHARGES. Borrower shall pay when due the principal of and
interest on, the debt evidenced by the Note, and any prepayment charges and late
charges due under the Note. Payments due under the Note and this Security
Instrument shall be made in U.S. currency. However, if any check or other
instrument received by Lender as payment under the Note or this Security
Instrument is returned to Lender unpaid, Lender may require that any or all
subsequent payments due under the Note and this Security Instrument be made in
one or more of the following forms, as selected by Lender: (a) cash; (b) money
order; (c) certified check, bank check, treasurer's check or cashier's check,
provided any such check is drawn upon an institution whose deposits arc insured
by a federal agency, instrumentality, or entity; or (d) Electronic Funds
Transfer.
Payments are deemed received by Lender when received at the
location designated in the Note or at such other location as may be designated
by Lender in accordance with the notice provisions in Section 15. Lender may
return any payment or partial payment if the payment or partial payments are
insufficient to bring the Loan current. Lender may accept any payment or Partial
payment insufficient to bring the Loan current, without waiver of any rights
hereunder or prejudice to its rights to refuse such payment or partial payments
in the future, but Lender is not obligated to apply such payments at the time
such payments are accepted. If each Periodic Payment is applied as of its
scheduled due date, then Lender need not pay interest on unapplied funds. Lender
may hold such unapplied funds until Borrower makes payment to bring the Loan
current. If Borrower does not do so within a reasonable period of time, Lender
shall either apply such funds or return them to Borrower. If not applied
earlier, such funds will be applied to the outstanding principal balance under
the Note immediately prior to foreclosure. No offset or claim which Borrower
might have now or in the future against Lender shall relieve Borrower from
making payments due under the Note and this Security Instrument or performing
the covenants and agreements secured by this Security Instrument.
Page 3 of 14
2. APPLICATION OF PAYMENTS OR PROCEEDS. Except as otherwise
described in this Section 2, all payments accepted and applied by Lender shall
be applied in the following order of priority: (a) interest due under the Note;
(b) principal due under the Note; (c) amounts due under Section 3. Such payments
shall be applied to each Periodic Payment in the order in which it became due.
Any remaining amounts shall be applied first to late charges, second to any
other amounts due under this Security Instrument, and then to reduce the
principal balance of the Note.
If Lender receives a payment from Borrower for a delinquent
Periodic Payment which includes a sufficient amount to pay any late charge due,
the payment may be applied to the delinquent payment and the late charge. If
more than one Periodic Payment is outstanding, Lender may apply any payment
received from Borrower to the repayment of the Periodic Payments if, and to the
extent that, each payment can be paid in full. To the extent that any excess
exists after the payment is applied to the fall payment of one or more Periodic
Payments, such excess may be applied to any late charges due. Voluntary
prepayments shall be applied first to any prepayment charges and then as
described in the Note.
Any application of payments, insurance proceeds, or
Miscellaneous Proceeds to principal due under the Note shall not extend or
postpone the due date, or change the amount, of the Periodic Payments.
3. FUNDS FOR ESCROW ITEMS. (Not applicable)
4. CHARGES; LIENS. Borrower shall pay all taxes, assessments,
charges, fines, and impositions attributable to the Property which can attain
priority over this Security Instrument, leasehold payments or ground rents on
the Property, if any, and Community Association Dues, Fees, and Assessments, if
any. To the extent that these items are Escrow Items, Borrower shall pay them in
the manner provided in Section 3.
Borrower shall promptly discharge any lien which has priority
over this Security Instrument unless Borrower: (a) agrees in writing to the
payment of the obligation secured by the lien in a manner acceptable to Lender,
but only so long as Borrower is performing such agreement; (b) contests the lien
in good faith by, or defends against enforcement of the lien in, legal
proceedings which in Lender's opinion operate to prevent the enforcement of the
lien while those proceedings are pending, but only until such proceedings are
concluded; or (c) secures from the holder of the lien an agreement satisfactory
to Lender subordinating the lien to this Security Instrument. If Lender
determines that any part of the Property is subject to a lien, which can attain
priority over this Security Instrument, Lender may give Borrower a notice
identifying the lien. Within 10 days of the date on which that notice is given,
Borrower shall satisfy the lien or take one or more of the actions set forth
above in this Section 4.
Lender may require Borrower to pay a one-time charge for a
real estate tax verification and/or reporting service used by Lender in
connection with this Loan.
Page 4 of 14
5. PROPERTY INSURANCE. Borrower shall keep the improvements
now existing or hereafter erected on the Property insured against loss by fire,
hazards included within the term "extended coverage," and any other hazards
including, but not limited to, earthquakes and floods, for which Lender requires
insurance. This insurance shall be maintained in the amounts (including
deductible levels) and for the periods that Lender requires. What Lender
requires pursuant to the preceding sentences can change during the term of the
Loan. The insurance carrier providing the insurance shall be chosen by Borrower
subject to Lender's right to disapprove Borrower's choice, which right shall not
be exercised unreasonably.
If Borrower fails to maintain any of the coverages described
above, Lender may obtain insurance coverage, at Lender's option and Borrower's
expense. Lender is under no obligation to purchase any particular type or amount
of coverage. Therefore, such coverage shall cover Lender, but might or might not
protect Borrower, Borrower's equity in the Property, or the contents of the
Property, against any risk, hazard or liability and might provide greater or
lesser coverage than was previously in effect. Borrower acknowledges that the
cost of the insurance coverage so obtained might significantly exceed the cost
of insurance that Borrower could have obtained. Any amounts disbursed by Lender
under this Section 5 shall become additional debt of Borrower secured by this
Security Instrument. These amounts shall bear interest at the Note rate from the
date of disbursement and shall be payable, with such interest, upon notice from
Lender to Borrower requesting payment.
All insurance policies required by Lender and renewals of such
policies shall be subject to Lender's right to disapprove such policies, shall
include a standard mortgage clause, and shall name Lender as mortgagee and/or as
an additional loss payee. Lender shall have the right to hold the policies and
renewal certificates. If Borrower obtains any form of insurance coverage, not
otherwise required by Lender, for damage to, or destruction of, the Property,
such policy shall include a standard mortgage clause and shall name Lender as
mortgagee and/or as an additional loss payee.
In the event of loss, Borrower shall give prompt notice to the
insurance carrier and Lender. Lender may make proof of loss if not made promptly
by Borrower. Unless Lender and Borrower otherwise agree in writing, any
insurance proceeds, whether or not the underlying insurance was required by
Lender, shall be applied to restoration or repair of the Property, if the
restoration or repair is economically feasible and Lender's security is not
lessened. During such repair and restoration period, Lender shall have the right
to hold such insurance proceeds until Lender has had an opportunity to inspect
such Property to ensure the work has been completed to Lender's satisfaction,
provided that such inspection shall be undertaken promptly. Lender may disburse
proceeds for the repairs and restoration in a single payment or in a series of
progress payments as the work is completed. Unless an agreement is made in
writing or Applicable Law requires interest to be paid on such insurance
proceeds, Lender shall not be required to pay Borrower any interest or earnings
on such proceeds. Fees for public adjusters, or other third parties, retained by
Borrower shall not be paid out of the insurance proceeds and shall be the sole
obligation of Borrower. If the restoration or repair is not economically
Page 5 of 14
feasible or Lender's security would be lessened, the insurance proceeds shall be
applied to the sums secured by this Security Instrument, whether or not then
due, with the excess, if any, paid to Borrower. Such insurance proceeds shall be
applied in the order provided for in Section 2.
If Borrower abandons the Property, Lender may file, negotiate
and settle any available insurance claim and related matters. If Borrower does
not respond within 30 days to a notice from Lender that the insurance carrier
has offered to settle a claim, then Lender may negotiate and settle the claim.
The 30-day period will begin when the notice is given. In either event, or if
Lender acquires the Property under Section 22 or otherwise, Borrower hereby
assigns to Lender (a) Borrower's rights to any insurance proceeds in an amount
not to exceed the amounts unpaid under the Note or this Security Instrument, and
(b) any other of Borrower's rights (other than the right to any refund of
unearned premiums paid by Borrower under all insurance policies covering the
Property, insofar as such rights are applicable to the coverage of the Property.
Lender may use the insurance proceeds either to repair or restore the Property
or to pay amounts unpaid under the Note or this Security Instrument, whether or
not then due.
6. OCCUPANCY. Borrower shall occupy, establish, and use the
Property as Borrower's principal residence within 60 days after the completion
of the dwelling on the Property and shall continue to occupy the Property as
Borrower's principal residence for at least one year after the date of
occupancy, unless Lender otherwise agrees in writing, which consent shall not be
unreasonably withheld, or unless extenuating circumstances exist which are
beyond Borrower's control.
7. PRESERVATION, MAINTENANCE AND PROTECTION OF THE PROPERTY;
INSPECTIONS. Borrower shall not destroy, damage or impair the Property, allow
the Property to deteriorate or commit waste on the Property. Whether or not
Borrower is residing in the Property, Borrower shall maintain the Property in
order to prevent the Property from deteriorating or decreasing in value due to
its condition. Unless it is determined pursuant to Section 5 that repair or
restoration is not economically feasible, Borrower shall promptly repair the
Property if damaged to avoid further deterioration or damage. If insurance or
condemnation proceeds are paid in connection with damage to, or the taking of
the Property, Borrower shall be responsible for repainting or restoring the
Property only if Lender has released proceeds for such purposes. Lender may
disburse proceeds for the repairs and restoration in a single payment or in a
series of progress payments as the work is completed. If the insurance or
condemnation proceeds are not sufficient to repair or restore the Property,
Borrower is not relieved of Borrower's obligation for the completion of such
repair or restoration.
Lender or its agent may make reasonable entries upon and
inspections of the Property. If it has reasonable cause, Lender may inspect the
interior of the improvements on the Property. Lender shall give Borrower notice
at the time of or prior to such an interior inspection specifying such
reasonable cause.
8. BORROWER'S LOAN APPLICATION. (Intentionally deleted)
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9. PROTECTION OF LENDER'S INTEREST IN THE PROPERTY AND RIGHTS
UNDER THIS SECURITY INSTRUMENT. If (a) Borrower fails to perform the covenants
and agreements contained in this Security Instrument, (b) there is a legal
proceeding that might significantly affect Lender's interest in the Property
and/or rights under this Security Instrument (such as a proceeding in
bankruptcy, probate, for condemnation or forfeiture, for enforcement of a lien
which may attain priority over this Security Instrument or to enforce laws or
regulations), or (c) Borrower has abandoned the Property, then Lender may do and
pay for whatever is reasonable or appropriate to protect Lender's interest in
the Property and rights under this Security Instrument, including protecting
and/or assessing the value of the Property, and securing and/or repairing the
Property. Lender's actions can include, but are not limited to: (a) paying any
sums secured by a lien which has priority over this Security Instrument; (b)
appearing in court; and (c) paying reasonable attorneys, fees to protect its
interest in the Property and, or rights under this Security Instrument,
including its secured position in a bankruptcy proceeding. Securing the Property
includes, but is not limited to, entering the Property to make repairs, change
locks, replace or board up doors and windows, drain water from pipes, eliminate
building or other code violations or dangerous conditions, and have utilities
turned on or off. Although Lender may take action under this Section 9, Lender
does not have to do so and is not under any duty or obligation to do so. It is
agreed that Lender incurs no liability for not taking any or all actions
authorized under this Section 9.
Any amounts disbursed by Lender under this Section 9 shall
become additional debt of Borrower secured by this Security Instrument. These
amounts shall bear interest at the Note rate from the date of disbursement and
shall be payable, with such interest, upon notice from Lender to Borrower
requesting payment.
10. MORTGAGE INSURANCE. (Intentionally deleted)
11. ASSIGNMENT OF MISCELLANEOUS PROCEEDS; FORFEITURE. All
Miscellaneous Proceeds are hereby assigned to and shall be paid to Lender. If
the Property is damaged, such Miscellaneous Proceeds shall be applied to
restoration or repair of the Property, if the restoration or repair is
economically feasible and Lender's security is not lessened. During such repair
and restoration period, Lender shall have the right to hold such Miscellaneous
Proceeds until Lender has had an opportunity to inspect such Property to ensure
the work has been completed to Lender's satisfaction, provided that such
inspection shall be undertaken promptly. Lender may pay for the repairs and
restoration in a single disbursement or in a series of progress payments as the
work is completed. Unless an agreement is made in writing or Applicable Law
requires interest to be paid on such Miscellaneous Proceeds, Lender shall not be
required to pay Borrower any interest or earnings on such Miscellaneous
Proceeds. If the restoration or repair is not economically feasible or Lender's
security would be lessened, the Miscellaneous Proceeds shall be applied to the
sums; secured by this Security Interest, whether or not then due, with the
excess, if any, paid to Borrower. Such Miscellaneous Proceeds shall be applied
in the order provided for in Section 2.
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In the event of a total taking, destruction, or loss in value
of the Property, the Miscellaneous Proceeds shall be applied to the sums secured
by this Security Instrument, whether or not then due, with the excess, if any,
paid to Borrower.
In the event of a partial taking, destruction, or loss in
value of the Property in which the fair market value of the Property immediately
before the partial taking, destruction, or loss in value is equal to or greater
than the amount of the sums secured by this Security Instrument immediately
before the partial taking, destruction, or loss in value, unless Borrower and
Lender otherwise agree in writing, the sums secured by this Security Instrument
shall be reduced by the amount of the Miscellaneous Proceeds multiplied by the
following fraction: (a) the total amount of the sums secured immediately before
the partial taking, destruction, or loss in value divided by (b) the fair market
value of the Property immediately before the partial taking, destruction, or
loss in value. Any balance shall be paid to Borrower.
In the event of a partial taking, destruction, or loss in
value of the Property in which the fair market value of the Property immediately
before the partial taking, destruction, or loss in value is less than the amount
of the sums secured immediately before the partial taking, destruction, or loss
in value, unless Borrower and Lender otherwise agree in writing, the
Miscellaneous Proceeds shall be applied to the sums secured by this Security
Instrument whether or not the sums are then due.
If the Property is abandoned by Borrower, or if, after notice
by Lender to Borrower that the Opposing Party (as defined in the next sentence)
offers to make an award to settle a claim for damages, Borrower fails to respond
to Lender within 30 days after the date the notice is given, Lender is
authorized to collect and apply the Miscellaneous Proceeds either to restoration
or repair of the Property or to the sums secured by this Security Instrument,
whether or not then due.
"Opposing Party" means the third party that owes Borrower
Miscellaneous Proceeds or the party against whom Borrower has a right of action
in regard to Miscellaneous Proceeds.
Borrower shall be in default if any action or proceeding,
whether civil or criminal, is begun that, in Lender's judgment, could result in
forfeiture of the Property or other material impairment of Lender's interest in
the Property or rights under this Security Instrument. Borrower can cure such a
default and, if acceleration has occurred, reinstate as provided in Section 19,
by causing the action or proceeding to be dismissed with a ruling that, in
Lender's judgment, precludes forfeiture of the Property or other material
impairment of Lender's interest in the Property or rights under this Security
Instrument. The proceeds of any award or claim for damages that are attributable
to the impairment of Lender's interest in the Property are hereby assigned and
shall be paid to Lender.
All Miscellaneous Proceeds that are not applied to restoration
or repair of the Property shall be applied in the order provided for in Section
2.
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12. BORROWER NOT RELEASED; FORBEARANCE BY LENDER NOT A WAIVER.
Extension of the time for payment or modification of amortization of the sums
secured by this Security Instrument granted by Lender to Borrower or any
Successor in Interest of Borrower shall not operate to release the liability of
Borrower or any Successors in Interest of Borrower. Lender shall not be required
to commence proceedings against any Successor in Interest of Borrower or to
refuse to extend time for payment or otherwise modify amortization of the sums
secured by this Security Instrument by reason of any demand made by the original
Borrower or any Successors in Interest of Borrower. Any forbearance by Lender in
exercising any right or remedy including, without limitation, Lender's
acceptance of payments from third persons, entities or Successors in Interest of
Borrower or in amounts less than the amount then due, shall not be a waiver of
or preclude the exercise of any right or remedy.
13. JOINT AND SEVERAL LIABILITY; CO-SIGNERS; SUCCESSORS AND
ASSIGNS BOUND. Borrower covenants and agrees that Borrower's obligations and
liability shall be joint and several. However, any Borrower who co-signs this
Security Instrument but does not execute the Note (a "co-signer") (a) is
co-signing this Security Instrument only to mortgage, grant and convey the
co-signer's interest in the Property under the terms of this Security
Instrument; (b) is not personally obligated to pay the sums, secured by this
Security Instrument; and (c) agrees that Lender and any other Borrower can agree
to extend, modify, forbear or make any accommodations with regard to the terms
of this Security Instrument or the Note without the co-signer's consent.
Subject to the provisions of Section 18, any Successor in
Interest of Borrower who assumes Borrower's obligations under this Security
Instrument in writing, and is approved by Lender, shall obtain all of Borrower's
rights and benefits under this Security Instrument. Borrower shall not be
released from Borrower's obligations and liability under this Security
Instrument unless Lender agrees to such release in writing. The covenants and
agreements of this Security Instrument shall bind (except as provided in Section
20) and benefit the successors and assigns of Lender.
14. LOAN CHARGES. Lender may charge Borrower fees for services
performed in connection with Borrower's default, for the purpose of protecting
Lender's interest in the Property and rights under this Security Instrument,
including, but not limited to, attorneys' fees, property inspection and
valuation fees. In regard to any other fees, the absence of express authority in
this Security Instrument to charge a specific fee to Borrower shall not be
construed as a prohibition on the charging of such fee. Lender may not charge
fees that are expressly prohibited by this Security Instrument or by Applicable
Law.
If the Loan is subject to a law which sets maximum loan
charges, and that law is finally interpreted so that the interest or other loan
charges collected or to be collected in connection with the Loan exceed the
permitted limits, then: (a) any such loan charge shall be reduced by the amount
necessary to reduce the charge to the permitted limit; and (b) any sums already
collected from Borrower which exceeded permitted limits will be refunded to
Borrower. Lender may choose to make this refund by reducing the principal owed
under the Note or by making a direct payment to Borrower. If a refund reduces
principal, the reduction will be treated as a partial prepayment without any
prepayment charge (whether or not a prepayment charge is provided for under the
Note). Borrower's acceptance of any such refund made by direct payment to
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Borrower will constitute a waiver of any right of action Borrower might have
arising out of such overcharge.
15. NOTICES. All notices given by Borrower or Lender in
connection with this Security Instrument must be in writing. Any notice to
Borrower in connection with this Security Instrument shall be deemed to have
been given to Borrower when mailed by first class mail or when actually
delivered to Borrower's notice address if sent by other means. Notice to any one
Borrower shall constitute notice to all Borrowers unless Applicable Law
expressly requires otherwise. The notice address shall be the Property Address
unless Borrower has designated a substitute notice address by notice to Lender.
Borrower shall promptly notify Lender of Borrower's change of address. If Lender
specifies a procedure for reporting Borrower's change of address, then Borrower
shall only report a change of address through that specified procedure. There
may be only one designated notice address under this Security Instrument at any
one time. Any notice to Lender shall be given by delivering it or by mailing it
by first class mail to Lender's address stated herein unless Lender has
designated another address by notice to Borrower. Any notice in connection with
this Security Instrument shall not be deemed to have been given to Lender until
actually received by Lender. If any notice required by this Security Instrument
is also required under Applicable Law, the Applicable Law requirement will
satisfy the corresponding requirement under this Security Instrument.
16. GOVERNING LAW; SEVERABILITY; RULES OF CONSTRUCTION. This
Security Instrument shall be governed by federal law and the law of the
jurisdiction in which the Property is located. All rights and obligations
contained in this Security Instrument are subject to any requirements and
limitations of Applicable Law. Applicable Law might explicitly or implicitly
allow the parties to agree by contract or it might be silent, but such silence
shall not be construed as a prohibition against agreement by contract. In the
event that any provision or clause of this Security Instrument or the Note
conflicts with Applicable Law, such conflict shall not affect other provisions
of this Security Instrument or the Note which can be given effect without the
conflicting provision.
As used in this Security Instrument: (a) words of the
masculine gender shall mean and include corresponding neuter words or words of
the feminine gender; (b) words in the singular shall mean and include the plural
and vice versa; and (c) the word "may" gives sole discretion without any
obligation to take any action.
17. BORROWER'S COPY. Borrower shall be given one conformed
copy of the Note and of this Security Instrument at the time such documents are
executed or within a Reasonable time thereafter.
18. TRANSFER OF THE PROPERTY OR A BENEFICIAL INTEREST IN
BORROWER. As used in this Section 18, "Interest in the Property" means any legal
or beneficial interest in the Property, including, but not limited to, those
beneficial interests transferred
Page 10 of 14
in a bond for deed, contract for deed, installment sales contract or escrow
agreement, the intent of which is the transfer of title by Borrower at a future
date to a purchaser.
If all or any part of the Property or any Interest in the
Property is sold or transferred (or if Borrower is not a natural person and a
beneficial interest in Borrower is sold or transferred) without Lender's prior
written consent, Lender may require immediate payment in full of all sums
secured by this Security Instrument. However, this option shall not be exercised
by Lender if such exercise is prohibited by Applicable Law.
If Lender exercises this option, Lender shall give Borrower
notice of acceleration. The notice shall provide a period of not less than 30
days from the date the notice is given in accordance with Section 15 within
which Borrower must pay all sums secured by this Security Instrument. If
Borrower fails to pay these sums prior to the expiration of this period, Lender
may invoke any remedies permitted by this Security Instrument without further
notice or demand on Borrower.
19. BORROWER'S RIGHT TO REINSTATE AFTER ACCELERATION. If
Borrower meets certain conditions, Borrower shall have the right to have
enforcement of this Security Instrument discontinued at any time prior to the
earliest of: (a) five days before sale of the Property pursuant to any power of
sale contained in this Security instrument; (b) such other period as Applicable
Law might specify for the termination of Borrower's right to reinstate; or (c)
entry of a judgment enforcing this Security Instrument. Those conditions are
that Borrower: (a) pays Lender all sums which then would be due under this
Security Instrument and the Note as if no acceleration had occurred; (b) cures
any default of any other covenants or agreements; (e) pays all expenses incurred
in enforcing this Security Instrument, including, but not limited to, reasonable
attorneys' fees, property inspection and valuation fees, and other fees incurred
for the purpose of protecting Lender's interest in the Property and rights under
this Security Instrument; and (d) takes such action as Lender may reasonably
require to assure that Lender's interest in the Property and rights under this
Security Instrument, and Borrower's obligation to pay the sums secured by this
Security Instrument, shall continue unchanged. Lender may require that Borrower
pay such reinstatement sums and expenses in one or more of the following forms,
as selected by Lender: (a) cash; (b) money order; (c) certified check, bank
check, treasurer's check or cashier's check, provided any such check is drawn
upon an institution whose deposits are insured by a federal agency,
instrumentality or entity; or (d) Electronic Funds Transfer. Upon reinstatement
by Borrower, this Security Instrument and obligations secured hereby shall
remain fully effective as if no acceleration had occurred. However, this fight
to reinstate shall not apply in the case of acceleration under Section 18.
20. SALE OF NOTE; CHANGE OF LOAN SERVICER; NOTICE OF
GRIEVANCE. The Note or a partial interest in the Note (together with this
Security Instrument) can be sold one or more times without prior notice to
Borrower. A sale might result in a change in the entity (known as the "Loan
Servicer") that collects Periodic Payments due under the Note and this Security
Instrument and performs other mortgage loan servicing obligations under the
Note, this Security Instrument, and Applicable Law. There also might be one or
more changes of the Loan Servicer unrelated to a sale of the Note. If
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there is a change of the Loan Servicer, Borrower will be given written notice of
the change which will state the name and address of the new Loan Servicer, the
address to which payments should be made and any other information RESPA
requires in connection with a notice of transfer of servicing. If the Note is
sold and thereafter the Loan is serviced by a Loan Servicer other than the
purchaser of the Note, the mortgage loan servicing obligations to Borrower will
remain with the Loan Servicer or be transferred to a successor Loan Servicer and
are not assumed by the Note purchaser unless otherwise provided by the Note
purchaser.
Neither Borrower nor Lender may commence, join, or be joined
to any judicial action (as either an individual litigant or the member of a
class) that arises from the other party's actions pursuant to this Security
Instrument or that alleges that the other party has breached any provision of,
or any duty owed by reason of, this Security Instrument, until such Borrower or
Lender has notified the other party (with such notice given in compliance with
the requirements of Section 15) of such alleged breach and afforded the other
party hereto a reasonable period after the giving of such notice to take
corrective action. If Applicable Law provides a time period which must elapse
before certain action can be taken, that time period will be deemed to be
reasonable for purposes of this paragraph. The notice of acceleration and
opportunity to cure given to Borrower pursuant to Section 22 and the notice of
acceleration given to Borrower pursuant to Section 18 shall be deemed to satisfy
the notice and opportunity to take corrective action provisions of this Section
20.
21. HAZARDOUS SUBSTANCES. As used in this Section 21: (a)
"Hazardous Substances" are those substances defined as toxic or hazardous
substances, pollutants, or wastes by Environmental Law and the following
substances: gasoline, kerosene other flammable or toxic petroleum products,
toxic pesticides and herbicides, volatile solvents, materials containing
asbestos or formaldehyde, and radioactive materials; (b) "Environmental Law"
means federal laws and laws of the jurisdiction which are the Property is
located that related to health, safety or environmental protection; (c)
"Environmental Cleanup" includes any response action, remedial action, or
removal action, as defined in Environmental Law; and (d) an "Environmental
Condition" means a condition that can cause, contribute to, or otherwise trigger
an Environmental Cleanup.
Borrower shall not cause or permit the presence, use,
disposal, or storage, or release of any Hazardous Substances, or threaten to
release any Hazardous Substances, on or in the Property. Borrower shall not do,
nor allow anyone else to do, anything affecting the Property (a) that is in
violation of any Environmental Law, (b) which creates an Environmental
Condition, or (c) which, due to the presence, use, or release of a Hazardous
Substance, creates a condition that adversely affects the value of the Property.
The preceding two sentences shall not apply to the presence, use, or storage on
the Property of small quantities of Hazardous Substances that are generally
recognized to be appropriate to normal residential uses and to maintenance of
the Property (including, but not limited to, hazardous substances in consumer
products).
Page 12 of 14
Borrower shall promptly give Lender written notice of (a) any
investigation, claim, demand, lawsuit or other action by any governmental or
regulatory agency or private party involving the Property and any Hazardous
Substance or Environmental Law of which Borrower has actual knowledge, (b) any
Environmental Condition, including but not limited to, any spilling, leaking,
discharge, release or threat of release of any Hazardous Substance, and (c) any
condition caused by the presence, use or release of a Hazardous Substance which
adversely affects the value of the Property. If Borrower learns, or is notified
by any governmental or regulatory authority, or any private party, that any
removal or other remediation of any Hazardous Substance affecting the Property
is necessary, Borrower shall promptly take all necessary remedial actions in
accordance with Environmental Law. Nothing herein shall create any obligation on
Lender for an Environmental Cleanup.
NON-UNIFORM COVENANTS.
Borrower and Lender further covenant and agree as follows:
22. ACCELERATION; REMEDIES. LENDER SHALL GIVE NOTICE TO
BORROWER BY CERTIFIED MAIL TO THE ADDRESS OF THE PROPERTY OR ANOTHER ADDRESS
DESIGNATED BY BORROWER PRIOR TO ACCELERATION FOLLOWING BORROWER'S BREACH OF ANY
COVENANT OR AGREEMENT IN THIS SECURITY INSTRUMENT (BUT NOT PRIOR TO ACCELERATION
UNDER SECTION 18 UNLESS APPLICABLE LAW PROVIDES OTHERWISE). THE NOTICE SHALL
SPECIFY: (A) THE DEFAULT; (B) THE ACTION REQUIRED TO CURE THE DEFAULT; (C) A
DATE, NOT LESS THAN 30 DAYS FROM THE DATE THE NOTICE IS GIVEN TO BORROWER, BY
WHICH THE DEFAULT MUST BE CURED; AND (D) THAT FAILURE TO CURE THE DEFAULT ON OR
BEFORE THE DATE SPECIFIED IN THE NOTICE MAY RESULT IN ACCELERATION OF THE SUMS
SECURED BY THIS SECURITY INSTRUMENT AND SALE OF THE PROPERTY. THE NOTICE SHALL
FURTHER INFORM BORROWER OF THE RIGHT TO REINSTATE AFTER ACCELERATION AND THE
RIGHT TO BRING A COURT ACTION TO ASSERT THE NON-EXISTENCE OF A DEFAULT OR ANY
OTHER DEFENSE OF BORROWER TO ACCELERATION AND SALE. IF THE DEFAULT IS NOT CURED
ON OR BEFORE THE DATE SPECIFIED IN THE NOTICE, LENDER AT ITS OPTION MAY REQUIRE
IMMEDIATE PAYMENT IN FULL OF ALL SUMS SECURED BY THIS SECURITY INSTRUMENT
WITHOUT FURTHER DEMAND AND MAY INVOKE THE POWER OF SALE AND ANY OTHER REMEDIES
PERMITTED BY APPLICABLE LAW. LENDER SHALL BE ENTITLED TO COLLECT ALL EXPENSES
INCURRED IN PURSUING THE REMEDIES PROVIDED IN THIS SECTION 22, INCLUDING, BUT
NOT LIMITED TO, REASONABLE ATTORNEYS' FEES.
IF LENDER INVOKES THE POWER OF SALE, LENDER SHALL CAUSE A COPY
OF A NOTICE OF SALE TO BE SERVED UPON ANY PERSON IN POSSESSION OF THE PROPERTY.
LENDER SHALL PUBLISH A NOTICE OF SALE, AND THE PROPERTY SHALL BE SOLD AT PUBLIC
AUCTION IN THE MANNER PRESCRIBED BY APPLICABLE LAW. LENDER OR ITS DESIGNEE MAY
PURCHASE THE PROPERTY AT ANY SALE. THE PROCEEDS OF THE SALE SHALL BE APPLIED IN
THE FOLLOWING ORDER: (A) TO ALL EXPENSES OF THE SALE, INCLUDING, BUT NOT LIMITED
TO, REASONABLE ATTORNEYS' FEES; (B) TO ALL SUMS SECURED BY THIS SECURITY
INSTRUMENT; AND (C) ANY EXCESS TO THE PERSON OR PERSONS LEGALLY ENTITLED TO IT.
23. RELEASE. Upon payment of all sums secured by this Security
Instrument, Lender shall discharge this Security Instrument. Borrower shall pay
any
Page 13 of 14
recordation costs. Lender may charge Borrower a fee for releasing this Security
Instrument, but only if the fee is paid to a third party for services rendered
and the charging of the fee is permitted under Applicable Law.
24. WAIVER OF HOMESTEAD. (Intentionally deleted)
25. INTEREST ON ADVANCES. The interest rate on advances made
by Lender under this Security Instrument shall not exceed the maximum rate
allowed by Applicable Law.
BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants
contained in this Security Instrument and in any Rider executed by Borrower and
recorded with it.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------- ----------------------------------------
Witness (as to both signatures) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - Borrower
Social Security Number: ▇▇▇▇▇▇▇▇▇
/s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------- ----------------------------------------
Witness (as to both signatures) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - Borrower
Social Security Number: ###-##-####
- - - - - - - - - [Space Below This Line for Acknowledgment] - - - - - - - - - -
STATE OF MINNESOTA
COUNTY OF HENNEPIN
The foregoing instrument was acknowledged before me on this
_15_ day of April, 2002, by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, personally known
to me.
(NOTARY SEAL) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
------------------------
Printed Name
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