Erickson Post Acquisition, Inc. - Page 16

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          Although the note does not specify that Mr. Zimmerman signed in             
          his capacity as petitioner’s president, the note clarifies that             
          the note was entered into pursuant to the terms of the dealer               
          supply agreement and the rider between Lender and Borrower.                 
          Thus, we are satisfied that petitioner was the promisor under the           
          note.                                                                       
               Respondent contends that the mortgage was subordinated to an           
          unknown debt because the mortgage states that it constituted a              
          “second” priority lien.  Although the mortgage states that it               
          constituted a “second” priority lien on the property, it also               
          indicates that it was “superior to any and all other liens.”                
          Further, there were no other mortgages on the property, and the             
          mortgage was recorded with the Office of County Recorder,                   
          Washington County, Minnesota.  Respondent’s position is contrary            
          to the facts.                                                               
               Finally, there is no evidence to support respondent’s                  
          contention that Amoco did not consider petitioner’s financial               
          condition before making the advance.  We do not think that                  
          Amoco’s failure to require Mr. Zimmerman to submit records                  
          regarding his personal financial condition in connection with his           
          guarantee indicates that Amoco did not intend the advance to be a           
          loan to petitioner.                                                         
               In conclusion, when the $175,000 was paid to petitioner,               
          petitioner had an unconditional obligation to repay the full                






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Last modified: May 25, 2011