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CADAS - AO
FORM H
NEBRASKA
SECOND DEED OF TRUST
(HBA)
ADAMS COUNTY, NE
INST. NO. F~~~~5iQ6
Date 11 _ao-o~ Time o? ~ 13Pm
TER Of DEEDS
This Second Deed of Trust (this "Second Deed of Trust"), is made as of November 19 , 20 07 , by
and among Seth A Tolen, a/k/a Seth Tolen, and Amanda L Tolen, a/Wa Amanda Tolen, Husband and Wife_
("Borrower", hereinafter referred to as "Trustor"), whose mailing address is 1934 W 7th St -Hastings. NE 68901 ;
U.S. Bank Trust Company, National Association, ("Trustee"), whose mailing address is ll l S. W. Fifth Avenue,
Portland, Oregon 97204, and Nebraska Inveshnent Finance Authority ("Beneficiary"), whose mailing address is 200
Commerce Court, 1230 O Street, Lincoln, Nebraska 68508-1402.
FOR VALUABLE CONSIDERATION, Trustor irrevocably transfers, conveys and assigns to Trustee, IN
TRUST, WITH POWER OF SALE, for the-benefit and security of Beneficiary, under and subject to the terms and
conditions of this Second Deed of Trust, the real property, legally described as follows (the "Property"):
Lot Sixteen (16), Block Seven (7), West Lawn Addition to the City of Hastings, Adams County, Nebraska,
according to the recorded plat thereof.
TOGETHER W[TH, all rents, profits, royalties; income and other benefits derived from the Property
(collectively, the "rents"), all leases or subleases covering the Property or any portion thereof now or hereafter existing
or entered into, and all right, title and interest of Trustor thereunder, all right, title and interest of Trustor in and to any
greater estate in the Property owned or hereafter acquired, all interests, estate or other claims, both in law and in equity,
which Trustor now has or may hereafter acquire in the Property, all easements, rights-of--way, tenements, hereditaments
and appurtenances thereof and thereto, all water rights, all right, title and interest of Trustor, now awned or hereafter
acquired, in and to any land, lying within the right-of--way of any street or highway adjoining [he Property, and any and
all alleys and strips and gores of land adjacent to or used in connection with the Property, and any and all buildings,
fixtures and improvements now or hereafter erected thereon (the "Improvements"), and all the estate, interest, right,
title or any claim or demand which Trustor now has or may hereafter acquire in the Property, and any and all awazds
made for the taking by eminent domain, or by any proceeding or purchase in lieu thereof, of the whole or any part of
the Trust Estate, including without limitation any awards resulting from a change of grade of streets and awards for
severance damages.
The Property and the entire estate and interest conveyed to the Trustee are referred to collectively as the
"Trust Estate".
For the Purpose of Securing:
A. .Payment of indebtedness evidenced by any promissory note of Trustor in favor of Beneficiary; and
B. Payment of all sums advanced by Beneficiary to protect the Trust Estate, with interest thereon at
the rate of sixteen percent (16%) per anmm~.
The indebtedness described in paragraphs A and B above is referred to as the "Indebtedness."
This Second Deed of Trust, any promissory note of Trustor in favor of Beneficiary and any other instrument
given to evidence or further secure the payment and performance of any obligation secured hereby are referred to
collectively as the "Loan Inshvments'%.
Trustor covenants that (i) Trustor holds title to the Trust Estate and has lawful authority to encumber the
Trust Estate, (ii) the Trust Estate is free and clear of all liens and encumbrances except for easements, restrictions and
covenants of record and the Deed of Trust from Trustor encumbering the Property dated on or about the date hereof
(the "First Deed of Trust"), and (iii) Trustor will defend the Trust Estate against the lawful claims of any person.
To Protect the Security of this Second Deed of Trust:
L Payment of/ndeG[edness. Trustor shall pay when due the principal of, and the interest on, the
Indebtedness and all other sums as provided in the Loan Instruments.
2. Tuxes. Trustor shall pay each installment of all taxes and special assessments of every kind, now
or hereafter levied against the Trust Estate or any part thereof, before delinquency, without notice or demand.
3. lnsurance and Repairs. ,Trustor shall maintain fire and extended coverage insurance insuring the
linprovcinents constituting part of the Trust Estate for such amounts and on such terms reasonably satisfactory to
16-31 NIFA MRB/Form H
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Beneficiary. So long as the Property is secured by a first deed of trust or mortgage, compliance with the insurance
requirements of the First Deed of Trust or mortgage shall be sufficient to satisfy the requirements of this paragraph 3
relating to insurance.
Trustor shall promptly repair and replace the Trust Estate or any part thereof so that, except for ordinary wear
and tear, the Tmst Estate shall not deteriorate. In no event shall the Tmstor commit waste on or to the Trust Estate, or
commit, suffer or permit any act to be done in or upon the Trust Estate in violation of any law, ordinance or regulation.
Trustor shall pay and promptly discharge at Tmstor's cost and expense all liens, encumbrances and.charges levied,
imposed or assessed against the Trust Estate or any part thereof.
4. Actions Affecting Trust Estate. Tmstor shall appear in and_contest any action or proceeding
purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee, and shall pay all costs and
expenses, including cost of evidence of title and attorneys' fees, in any such action or proceeding in which Beneficiary
or Trustee may appear. If Trustor fails to make any pa}nnent or to do any act as and in the manner provided in any of
the Loan Instruments, Beneficiary and/or Trustee, each in their own discretion, without obligation so to do and without
notice to or demand upon Tmstor and without releasing Tmstor from any obligation, may make or do the same in such
manner and to such extent as either may deem necessary to protect the security hereof. Trustor shall, immediately upon
demand therefor by Beneficiary, pay all costs and expenses incurred by Beneficiary in connection with the exercise by
Beneficiary of the foregoing rights, including without limitation costs of evidence of title, court' costs, appraisals,
surveys and attorneys' fees.
5. Eneinent Domain. If the Trust Estate, or any part thereof or interest therein, be taken or damaged
by reason of any public improvement or condemnation proceeding, or in any other manner including deed in lieu
thereof ("Condemnation"), or if Trustor receives any notice or otherinfonnation regarding such proceeding, Trustor
shall give prompt written notice thereof to Beneficiary. Trustor shall be entitled to all compensation, awards and other
payments or relief thereof and shall be entitled at its option to co~nrnence, appear in and prosecute in its own name any
action or proceedings. Trustor shall also be entitled to make any compromise or settlement in connection with such
taking or damage.
6. AppoinGuent of Successor Trustee. Beneficiary may, from time to time, by a written instrument
executed and acknowledged by Beneficiary, mailed to Trustor and recorded in the County in which the Trust Estate is
located and by otherwise complying with the provisions of the applicable law of the State of Nebraska substitute a
successor or successors to the Trustee named herein or acting hereunder.
7. Successors and Assigns. This Second Deed. of Trust applies to, inures to the benefit of and binds
all parties hereto, their heirs, legatees, devisees, personal representatives, successors and assigns. The term
"Beneficiary" shall mean the ownerand holder of any promissory note given to beneficially.
8. Merger, Consolidatiotr, Sales or Leases. Trustor covenants that Trustor will not sell, lease or
otherwise dispose of any of the Trust Estate. In the event that Trustor sells, leases or otherwise disposes of any part of
the Trust Estate, Beneficiary may at its option declare the Indebtedness secured hereby immediately due and payable,
whether or not any default exists. Beneficiary shall consent to a transfer of the Tmst Estate to a third party to the extent
such third party meets the requirements contained in, and assumes the obligations set forth in the First Deed of Trust.
The covenants contained herein shall run with the Property and shall remain in full force and effect until the
Indebtedness is paid in full.
9. Events ofDefau/t. Any of the following events shall be deemed an event of default hereunder:
(a) default shall be made in the payment of the Indebtedness or any other sum secured
hereby when due; or
(b) Trustor shallperfonn any actin bankruptcy; or
(c) a court of competent jurisdiction shall enter an order, judgment or decree approving a
petition tiled against Trustor seeking any reorganization, dissolution or similar relief under any present or
future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for
debtors, and such order,judginent or decree shall remain unvacated and unstayed for an aggregate of sixty
(60) days (whether or not consecutive) from the first date of entry thereof; or any tmstee, receiver or
liquidator or Trustor or of all or any part of the Trust Estate, or of any or all of the royalties, revenues, rents,
issues or profits thereof, shall be appointed without the consent or acquiescence of Trustor and such
appointment shall remain unvacated and unstayed for an aggregate of sixty,(60) days (whether or not
consecutive); or
i
(d) a writ of execution or attachment of any similar process shall be entered against Trustor
which shall become a lien on the Trust Estate or any portion thereof or interest therein and such execution,
attachment or similar process of judgment is not released, bonded, satisfied, vacated or stayed within sixty
(60) days after its entry or levy; or
(e) there has occurred a breach of or default under any [eon, covenant, agreement, condition,
provision, representation or warranty contained in the First Deed of Tmst or any prior deed of trust or
mortgage affecting the Trust Estate.
10. Acceleration upon Default; Additional Remedies. if an event of default occurs, Beneficiary may
declare the Indebtedness secured hereby to be due and payable and the same shall thereupon become due and payable
without any presentment, demand, protest or notice of any kind. Thereafter, Beneficiary may:
(i) either in person or by agent, with or without bringing any action or proceeding, or by a
receiver appointed by a court and without regard to the adequacy of its security, enter upon and take
possession of the Trust Estate, or any part thereof, in its own name or in the name of Trustee, and do any acts
which it deems necessary or desirable to preserve the value, marketability or rentability of the Trust Estate, or
16-32 NIFA MRB/Form H
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part thereof or interest therein, increase the income therefrom or protect the security hereof and, with or
without taking possession of the Trust Estate, sue for or otherwise collect the rents, issues and profits thereof,
including those past due and unpaid, and apply the same, less costs and expenses of operation and collection
including attorneys' fees, upon any indebtedness secured hereby, all in such order as Beneficiary may
determine. The entering upon and taking possession of the Trust Estate, the collection of such rents, issues
and profits and the application thereof as aforesaid shall not cure or waive any default or notice of default
hereunder or invalidate any ac[ done in response to such default or pursuant to such notice of default and,
notwithstanding the continuance in possession of the Trust Estate or the collection, receipt and application of
rents, issues or profits, Trustee or Beneficiary shall been entitled to exercise every right provided for in any of
the Loan lnstruments or by law upon occurrence of any event of default, including the right to exercise the
power of sale;
(ii) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver or
specifically enforce any of the covenants hereof;
(iii) deliver [o Trustee a written declaration of default and demand for sale and a written
notice of default and election to cause Trustor's interest in the Trust Estate to be sold, which notice Trustee
shall cause to be duly filed for record in the appropriate offices of the County in which the Trust Estate is
located; or
(iv) exercise such other rights or remedies at law or in equity.
1 1. Foreclosure Gy Nower ojSale. If Beneficiary e]ects to foreclose by exercise of the Power of Sale
herein contained, Beneficiary shall notify Trustee and shall deposit with Trustee this Second Deed of Trust and any
note evidencing the Indebtedness and such receipts and evidence of expenditures made and secured hereby as Trustee
may require.
(a) Upon receipt of such notice from Beneficiary, Trustee shall cause to be recorded,
published and delivered to Trustor such Notice of Default and Notice of Sale as then required by law and by
this Second Deed of Trust. Trustee shall, without demand on Trustor, after such time as may then be required
by law and after recordation of such Notice of Default and after Notice of Sale having been given as required
by law, sell the Trust Estate at the time and place of sale fixed by it in such Notice of Sale, either as a whole,
or in separate lots or parcels or items as Trustee shall deem expedient, and in such order as it may determine,
at public auction to the highest bidder for cash in lawful money. of the United States payable at the time of
sale. Trustee shall deliver to such purchaser or purchasers thereof its good and sufficient deed or deeds
conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in
such deed of any tnatters'ot facts shall be conclusive proof of the truthfulness thereof. My person, including
without limitation Trustor, Trustee or Beneficiary, may purchase at such sale.
(b) As may be permitted by law, after deducting all costs, fees and expenses of Trustee and
of this Trust, including costs of evidence of title in connection with sale, Trustee shall apply the proceeds of
sale to payment of (i) the Indebtedness (ii) all other sums then secured hereby, and (iii) the remainder, if any,
to the person or persons legally entitled thereto.
(c) Trustee may in the manner provided by law postpone sale of all or any portion of the
Trust Estate.
12. Remedies Not Exclusive. Trustee and Beneficiary, and each of them, shall be entitled to enforce
payment and performance of any indebtedness or obligations secured hereby and to exercise all rights and powers
under this Second Deed of Trust or under any Loan Instrument or other agreement or any laws now or hereafter in
force; notwithstanding, some or al] of the such indebtedness and obligations secured hereby may now or hereafter be
otherwise secured, whether by mortgage, deed of trust, pledge, lien, assignment or otherwise. Neither the acceptance
of this Second Deed of Trust nor its enforcement, whether by court action or pursuant to the power of sale or other
powers herein contained, shall prejudice or in any manner affect Trustee's or BeneFciary's right to realize upon or
enforce any other security now or hereafter held by Trustee or Beneficiary, it being agreed that Trustee and
Beneficiary, and each of them, shall be entitled to enforce this Second Deed of Trust and any other security now or
hereafter held by Beneficiary or Trustee in such order and manner as they or either of them tnay in their absolute
discretion determine. No remedy herein conferred upon or reserved to Trustee or Beneficiary is intended to be
exclusive of any other remedy herein or by law provided or penni[ted, but each shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Every
power or remedy given by any of the Loan Instruments to Trustee or Beneficiary or to which either of them may be
otherwise entitled, may be exercised, concurrently or independently, from time to time and as often as may be deemed
expedient by Trustee or Beneficiary and either of them may pursue inconsistent remedies. Nothing'herein shall be
construed as prohibiting Beneficiary from seeking a deficiencyjudgment against the Trustor to the extent such action is
pennitfed by law.
13. Request For Notice. Trustor and al] other parties set forth herein hereby requests a copy of any
Notice of Default and a copy of any Notice of Sale hereunder be mailed to them at the address set forth in the first
paragraph of this Second Deed of Trust.
14. Governing Law. This Second Deed of Trust shall be governed by and construed in accordance
with the laws of the State of Nebraska. In the event that any provision or clause of any of the Loan Instruments
contlicts with applicable laws, such conflict shall not affect other provisions of such Loan Instruments which can be
given effect without the conflicting provision, and to this end the provisions of the Loan Instruments are declared to be
severable. This instrument cannot be waived, changed, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of any waiver, change, discharge or termination is sought.
15. Recorrveyance by Trustee. Upon written request of Beneficiary stating that all sums secured
hereby have been paid and upon surrender of this Second Deed of Trust and any note to Trustee far cancellation and
retention and upon payment by Trustor of Trustee's fees, Trustee shall reconvey to Trustor, or the person or persons
legally entitled thereto, without warranty, any portion of the Trust Estate then held hereunder. The recitals in such
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reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in any
reconveyance may be described as "the person or persons legally entitled thereto."
16. Notices. Whenever Beneficiary, Trustor or Trustee shall desire to give or serve any notice,
demand, request or other co~mnuriication with respect to this Second Deed of Trust, each such notice, demand, request
or other communication shall be in writing and shall be effective only if the same is delivered by personal service or
mailed by certified mail, postage prepaid, return receipt requested, addressed to the address set forth at the beginning of
this Second Deed of Trust. Any party may at any time change its address for such notices by delivering or mailing to
the other parties hereto, as aforesaid, a notice of such change.
17. Acceptai:ce by Trustee.. Trustee accepts this Tmst when this Second Deed of Trust, duly executed
and acknowledged, is made a public record as provided by law.
IN WITNESS WHEREOF, Trustor has executed this Second Deed of Trust as of the day and year first above
written.
-''Seth A o i,Trustor/Bo
Amanda L Tolen,Tmstor/Borrower
STATE OF NEBRASKA )
ss.
COUNTY OF ADAMS )
The foregoing instmment was acknowledged before me this 19`" day of November, 2007 by Seth A Tolen
and Amanda L Tolen. -
~..,t ,d. ~~~--
~.
---`r~ Notary Public
My Commission Expires: JGMJ~ ~fj ~l)~S
- BA GENERAL NOTARY • State of Nebraska
DAVID S. HALBERT
--~ M Camm. Ex , Jan. 24, 2009
16-34 NIFA MRB/Form H
(10!06)
4827-8093-9776.8
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