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HomeMy WebLinkAbout20081319NUM PGS I g DOG TO.X p,, ~ CK# FEES ~ s0 PD1S1=c1_ CK#t CHG ACCI'# RET FEES;. r-CASH R.0.0. CK#..... RECr~-,f-!/~~5~~- ,~~~~~1~r~~~~kA li(~~IP_ RETURN r, r.,~7 iv taCLJ~+1(t~ 1i' After Recording Return To: !W~InI~dI~~VI~I~IINI'~~ NEJi'JI RD. COMP COMPARE ~ ~' --- CADAS - AO - v~t~, ~~v~. ~T°EELE STRE Q co sous DEED OF TRUST ADAMS COUNTY, NE FILED INST.NO. ~UO~ '3~-~ pate Time~/Yi. ~~~~~ REGISTER OF DEEDS THIS DEED OF TRUST ("Deed of Trust") is made this 29th day of February, 2008, by and among IRET Properties, a North Dakota Limited Partnership (herei North called the Trustor ), whose mailing address is 12 South Main Street, Minot, Dakota 58701, Stewart Title Guaranty Company (hereinafter called the "Tru feel',), whose mailing address is I ~ 4 n i~ ., r-T- rr t K.-1~ I v ~~._ ..~~ ~ i1 .f-f-~-, ~fi' X .,t ~ OJT ~~- and Bremer Bank, National Association, a national banking association (hereinafter called the "Beneficiary"), whose mailing address is 20 First Street SW, Minot, North Dakota 58702. WITNESSETH: WHEREAS, Trustor is indebted to Beneficiary in the principal sum of One Million Seven Hundred Eighty Seven Thousand and No/100ths Dollars ($1,787,000.00), which indebtedness is evidenced be t Thousanld a d No/100Nhs Dollars ($1,787 0 0 00) from Seven Hundred Eighty Se Trustor dated as of the date hereof (hereinafter the "Note"), and any renewals, extensions and substitutions thereof as provided for in that certain Loan Agreement (hereinafter the "Loan Agreement") dated of even date herewith among Trustor and Beneficiary. NOW, THEREFORE, the purpose of securing: (a) payment of the Note, and any other indebtedness owed by Trustor to Beneficiary, together with interest thereon, late charges, prepayment penalties, and any future advances, and all extensions, modifications, substitutions and renewals thereof; (b) payment of all other sums, fees or charges, together with interest thereof, advanced to protect the security of this Deed of Trust and the Return To;.~~'- I}1 l 6 ~ `~ ~ ~ First Nebraska Title Attn: Lisa 2425 South 120"' Street / of ~~ Omaha, NE 68144 20081319 performance of the covenants and agreements of Trustor, whether or not, set forth herein; (c) performance, discharge of and compliance with every term, covenant, obligation and agreement of Trustor contained herein or incorporated by reference or any other security instrument at anytime given to secure the Note; (d) the repayment of all other be n Dorf uhe eafte a be sadvanced r by thereon, which may heretofore have Beneficiary to Trustor or Trustor's successor in interest or title; all of which is hereinafter collectively called the "Indebtedness", Trustor irrevocable grants, grants a security interest in, and transfers to Trustee, in trust, WITH POWER OF SALE, the following described property: SEE EXHIBIT A ATTACHED HERETO AND MADE A PART HEREOF together with (i) all buildings, structures, additions, enlargements, modifications, repairs, replacements and improvements now or hereafter located thereon; (ii) all equipment, machinery and fixtures (including, without limitation, all lighting, heating, ventilating, cooling, air conditioning, sprinkling and plumbing fixtures, water and power systems, engines, boilers, ranges, ovens, dishwashers, refrigerators, washers, dryers, other appliances, mirrors and mantels, carpeting, furnaces, oil burners, elevators and motors, refrigeration plants or units, communication systems, dynamos, transformers, electrical equipment, storm and screen windows, doors, awnings and shades) now or hereafter attached to, or built in, any building or improvement now or hereafter located thereof; (iii) all easements and rights of way appurtenant thereto now existing or hereafter arising; (iv) all leasehold estate, right, title and interest of Trustor in and to all leases, whether not or hereafter existing or entered into (including, without limitation, all cash and security deposits, advance rentals and deposits or payments of a similar nature), pertaining thereto; (v) all rents, issues, profits and income therefrom (subject to the right of Trustor to collect and apply such rents, issues, profits and income as they become due and payable so long as no event of default exists hereunder), all guaranties of any leases or tenant obligations now existing or hereafter arising ; (vi) all royalties, mineral, oil and gas rights and profits, water, water rights, and water stock now existing or hereafter arising; (vii) all tenements, hereditaments, privileges and appurtenances belonging, used or enjoyed in connection therewith now existing or hereafter arising; and (viii) all proceeds of conversion, voluntary or involuntary, or any of the foregoing into cash or liquidated claims (including, without limitation, proceeds of insurance and condemnation awards) now existing or hereafter arising, all of which is hereunder collectively called the "Trust Property". TO PROTECT THE SECURITY INTEREST OF THIS DEED OF TRUST, TRUSTOR COVENANTS AND AGREES AS FOLLOWS: 2 ~ a~-) ~ 1. Title. Trustor covenants, warrants and agrees with Beneficiary, its successors and assigns, that Trustor owns the Trust Property free from any prior lien or encumbrance, that this Deed of Trust is and will remain a valid and enforceable first lien on the Trust Property, that Trustor, at its expense, will preserve such title and will maintain this Deed of Trust as a first lien upon the Trust Property and will forever warrant and defend the validity and priority of the lien hereof against the claims of all persons and parties whomsoever. Trustor, at its expense, will cause this Deed of Trust and each amendment or supplement hereto, to be filed and recorded as a mortgage of the Trust Property is such manner and in such place and will take such action as in the opinion of Trustee may be required by any present or future law in order to perfect, maintain and protect the lien of this Deed of Trust, as the same may be amended or supplemented from time to time. Trustor will make such further assurance or assurances to perfect its title tot the { of dowee andshomesbteadq n'r adndyto the ~T ust Trustor hereby relinquishes all righ Property. 2, Payyment of Indebtedness. Trustor shall promptly pay the principal of and interest on the Indebtedness secured hereby. 3. Status of Premises and Construction of Improvements. The buildings and building site, as designed and constructed, are in compliance with all Title III of the Americans with Disabilities Act, 42 U.S.C. § 1201. et seq., as amended, and the rules and regulations promulgated thereunder (hereinafter collectively referred to as the ADA ). At the request) ofs B nd f bu Iding s te,oas delsig beds and const ucted, ar'e in certification that the build g compliance with the ADA. Trustor shall complete in good and workman like manner any buildings, improvements or repairs relating thereto which may be begun on the Trust Property or contemplated by the loan evidenced by the Note secured hereby, to pay when due all costs and liabilities incurred therefore, and not to permit any construction lien against such Trust Property. In the event construction of buildings, improvements or repairs is contemplated, Trustor also agrees, anything in this Deed of Trust to the contrary notwithstanding: (a) to prompol com ete the same nwaccordancemwith theeplanpoand improvements promptly; (b) p to com I with all the terms of a specifications as approved by the Beneficiary; (c) p Y building loan agreement, if any, between the Trustor and the Beneficiary, the terms of which are incorporated herein by reference and made a part hereof; (d) to allow Beneficiary to inspect the Trust Property at all times during construction; and (e) to replace any work or materials unsatisfactory to Beneficiary within fifteen (15) days after written notice from Beneficiary of such fact. ~~ 4. Funds for Payment of Charges. Trustor shall pay all taxes and other charges against the real estate as and when they become due. Upon the occurrence of an Event of Default hereunder, subject to applicable law, and upon written request by Beneficiary, Trustor shall pay to Beneficiary on the first day of each month, or such 3 ~of1~ ~c~o8i3iy other day each month as may be specified by Beneficiary, until the Indebtedness is paid in full, a sum (hereinafter called the "Funds") equal to 1/12th of the yearly taxes and assessments which may attain priority over this Deed of Trust and ground rents on the Trust Property, if an y, plus 1/12th of the yearly premium installments for hazard insurance, plus 1/12 of the yearly premium installments for mortgage insurance, if any, all as reasonably estimated initially and from time to time by Beneficiary on the basis of assessments and bills and reasonable estimates thereof. The Funds shall be held in an institution, the deposit or accounts of which are insured or guaranteed by a federal or state agency including the Beneficiary. Beneficiary shall apply the Funds to pay said taxes, assessments, insurance premiums and ground rents. Beneficiary shall not be required to pay Trustor any interest or earnings on the Funds. Beneficiary shall give to Trustor, without charge, an annual accounting of t to the Funds was made.s The Fdubds to the Funds and the purpose- for which each debt are pledged as additional security for the Indebtedness secured by this Deed of Trust. If the amount of the Funds held by Beneficiary, together with the future money installments of Funds payable prior to the due dates of taxes, assessments;" insurance premiums and ground rents, shall exceed the amount required to pay said taxes, assessments, insurance premiums and ground rents as they fall due, such excess shall be at Trustor's option, either promptly repaid to Trustor or credited to Trustor against future monthly installments of Funds. If the amount of the Funds held by Beneficiary shall not be sufficient to pay taxes, assessments, insurance premiums and ground rents as they fall due, Trustor shall pay to Beneficiary any amount necessary to make up the deficiency within thirty (30) days from the date notice is mailed by Beneficiary to Trustor requesting payment thereof. Upon payment in full of all Indebtedness, Beneficiary shall promptly refund to Trustor any Funds held by Beneficiary. If the Trust Property is sold under the power of sale or the Trust Property is otherwise acquired by Beneficiary, Beneficiary shall apply, immediately prior to the sale of the Trust Property or its acquisition by Beneficiary, any Funds held by Beneficiary at the time of application as a credit against the Indebtedness. Until Beneficiary requests Trustor to make monthly payments under this paragraph 4, Trustor covenants and agrees to paY~ b nd reents, same become delinquent, all taxes, assessments, insurance premiums, g and all other charges whatsoever levied upon or assessed, pleased or made against the Trust Property. Trustor further agrees, upon written request by Beneficiary, to promptly deliver to Beneficiary all receipts for the payment of such charges. Trustor likewise agrees to pay all taxes, assessments and other charges levied upon or assessed, placed or made against, or measured by, this Deed of Trust or the recordation hereof. 5. Application of Payments. All payments received by Beneficiary as to any debt, liability or obligation owed to Beneficiary by Trustor may be applied by Beneficiary to the payment of the Indebtedness or to any such other debt, liability or obligation, in deems any order or manner of application which Beneficiary, in its absolute discretion, appropriate. Unless otherwise elected by Beneficiary, any such payment shall be deemed applied first to the payment of any debt, liability or obligation other than the Note. 4 ~o}~~ 2008319 6. Charges' Liens. Trustor will keep the Trust Property free from all liens and encumbrances which in any way may, in the judgment of Beneficiary, have priority over, or impair the security of, this Deed of Trust. Trustor need not discharge any such lien so long as Trustor shall agree, in writing, to pay the obligations secured by such lien in a manner acceptable to Beneficiary and shall in good faith contest such lien by appropriate legal proceedings effective to prevent the enforcement of the lien and the loss of any interest in or part of the Trust Property. Trustor shall maintain reasonable cash reserve for any obligation contested in good faith, if requested by Beneficiary. 7. Hazard Insurance. Trustor shall keep the buildings and other improvements now existing or hereafter erected on the Trust Property insured as required by the terms of the Loan Agreement. 8. Preservation and Maintenance of Trust Property. Trustor will keep the building and other improvements now or hereafter erected on the Trust Property in good repair and condition, ordinary wear and tear excepted, and will not commit or permit waste, will not alter the design or structural character constituting any building now or hereafter erected on and constituting the Trust Property without the prior written consent of Beneficiary, will not do any act or thing which would unduly impair or depreciate the value of the Trust Property and will not abandon the Trust Property. Trustor will not remove any fixtures constituting the Trust Property unless the same are immediately replaced with like property subject to the lien and security interest of this Deed of Trust and of at least equal value and utility. Trustor will comply with all present and future ordinances, regulations and requirements of any governmental body which are applicable to the Trust Property and to the occupancy and use thereof. If this Deed of Trust is on a unit in a condominium or a planned unit development, Trustor shall perform all of Trustor's obligations under the declarations or covenants creating or governing the condominium or the planned unit development, the bylaws and regulations of the condominium or planned unit development, and the constituent documents. 9. Inspection. Beneficiary or its agents may, at all reasonable times, enter upon the Trust Property for the purpose of inspection. Beneficiary shall have no duty to make such inspection and shall not be liable to Trustor or any person in possession if it makes or fails to make any such inspection. 10. Protection of Security. If Trustor fails to perform any of the covenants and agreements contained in this Deed of Trust, or if any action or proceeding is commenced which does or may adversely affect the Trust Property or the interest of Trustor or Beneficiary therein or the title of Trustor hereto, then Beneficiary, at its option, may perform such covenants and agreements, make such appearances, defend against and investigate such action or proceeding and take such other action as Beneficiary deems necessary to protect its interest including, but not limited to, disbursement of reasonable attorneys' fees and entry upon the Trust Property to make repairs. Any amounts disbursed by Beneficiary pursuant to this paragraph 10, with interest thereon, shall constitute Indebtedness of Trustor secured by this Deed of Trust. Unless Trustor 5 S"of 18 2aosi~iy and Beneficiary agree to other terms of payment, such amounts shall be payable upon notice from Beneficiary to Trustor requesting payment thereof, and shall bear interest from the date of disbursement at the default rate, if any, set forth in the Note, or otherwise at the highest rate permitted by law. Northing contained in this paragraph shall require Beneficiary to incur any expense or take any action hereunder. Trustor irrevocably authorizes and empowers Beneficiary to enter upon the Trust Property as Trustor's agent and, in Trustor's name or otherwise to perform any and all covenants and agreements to be performed by Trustor as herein provided. Beneficiary shall, at its option, be subrogated to any encumbrance, lien, claim or demand and to all rights and securities for the payment thereof paid or discharged by Beneficiary under the provisions hereof and any such subrogation rights shall be additional.-and cumulative security for this Deed of Trust. 11. Condemnation. Subject to the rights of the first lienholder, if any, the proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of the Trust Property, or any part thereof, or for conveyance in lieu of or in anticipation of condemnation, are hereby assigned to and shall be paid to Beneficiary. Trustor will file and prosecute, in good faith and with due diligence, its claim for any such award or payment and will cause the same to be collected and paid to Beneficiary, and, should it fail to do so, Trustor irrevocably authorizes and empowers Beneficiary, in the name of Trustor or otherwise, to file, prosecute, settle or compromise any such claim and to collect, receipt for and retain the proceeds. If the Trust Property is abandoned by Trustor, or, after notice by Beneficiary to Trustor that the condemnor offers to make an award or settle a claim for damages, Trustor fails to respond to Beneficiary within thirty (30) days after the date such notice is mailed, Beneficiary is authorized to collect and apply the proceeds in the manner indicated herein. The proceeds of any award or claim may, after deducting all reasonable costs and expenses, including attorneys' fees, which may have been incurred by Beneficiary in the collection thereof, at the sole discretion of Beneficiary, be released to Trustor, applied to restoration of the Trust Property, or applied to the payment of the Indebtedness. Unless Beneficiary and Trustor otherwise agree in writing, any such application of proceeds to Indebtedness shall not extend or postpone the due date of the Note or the payment of any installments called for thereunder. 12. Trustor Not Released. Extension of the time for payment or modification of any amortization of the Indebtedness granted by Beneficiary to any successor in interest of Trustor shall not operate to release, in any manner, the liability of Trustor and Trustor's successors in interest. Beneficiary shall not be required to commence proceedings against such successor or refuse to extend time for payment or otherwise modify amortization of the Indebtedness by reason of any demand made by Trustor and Trustor's successors in interest. ~. 13. Financial Information. Trustor will provide to Beneficiary with such financial information as required pursuant to the Loan Agreement. 6 (~ ofl~ ~oosi~io 14. Schedule of Leases. Within ten (10) days after demand, Trustor shall furnish to Beneficiary a schedule, certified by Trustor, setting forth all leases of the Trust Property, or any portion thereof, including in each case, the name of the tenants or occupants, a description of the space occupied by such tenant or occupant, the rental payable for such space, and such other information and documents which respect to such leases and tenancies as Beneficiary may reasonably request. 15. Covenants of Trustor with Respect to Leases. Without the prior written consent of Beneficiary, Trustor shall not, except in the ordinary course of business and in accordance with reasonable commercial practice, directly or indirectly, with respect to any lease of space in the Trust Property, or any portion thereof, whether such lease is now or hereafter in existence: (a) Accept or permit any prepayment, discount or advance payment of rent hereunder in excess of one (1) month; (b) Cancel or terminate the same, or accept any cancellation, termination or surrender thereof, or permit any event to occur which would occur thereunder to terminate or cancel the same, other than termination for nonpayment of rent; (c) Amend or modify the same so as to reduce the term thereof, the rental payment thereunder, or to change any renewal provisions therein contained; (d) Waive any default thereunder, or breach thereof; (e) Give any consent, waiver or approval thereunder or take any other action in connection therewith, or with a lessee thereunder, which would have the effect of impairing the value of the lessor's interest thereunder or the property subject thereto, or of impairing the position or interest of Beneficiary therein; or (f) Sell, assign, pledge, mortgage or otherwise dispose of, or encumber its interest in any said lease or any rents, issues, profits issuing or arising thereunder. Beneficiary shall be, and hereby is, vested with full power to use all such measures, legal and equitable, as in its discretion may be deemed necessary or proper to enforce this Deed of Trust and to collect the rents, issues, profits and income assigned hereunder, including the right to enter upon the premises and to take possession thereof, and Trustor hereby grants full power and authority to the Beneficiary to exercise all rights, privileges and powers herein granted at any time and all times hereafter, without notice to Trustor, with full power to use and apply all of the rents, issues, profits and income herein assigned to the payment of any indebtedness or liability of the Trustor to the Beneficiary, in such order as Beneficiary may determine. 7 ~ of J~' 20081319 Beneficiary shall be under no obligation to Trustor to pursue or press any of the rights or claims assigned to it hereunder or to perform or carry out any of the obligations undertaken by Trustor under the leases, and it does not assume any of the liabilities in connection with, or arising or growing out of, the covenants and agreements of the Trustor; and Trustor covenants and agrees that it will faithfully perform alt of the obligations imposed upon it under the leases herein assigned, and agrees to indemnity Beneficiary, and hold Beneficiary harmless, from any and all liability, loss or damage which may or might be incurred by Beneficiary under the leases or under or by reason of this Deed of Trust, and from any and all claims and demands whatsoever which be asserted against the Beneficiary by reason of any alleged obligation or undertakings on its part to perform or discharge any of the terms, covenants or shall not operate to place responsibility for the control, care, management or repair of .said leased premises upon Beneficiary, nor for the carrying out of the terms and conditions of the leases, nor shall it operate to make Beneficiary responsible or liable for any waste committed on the property by tenants or occupants under such leases or any other party, or for any dangerous or defective condition of the prerem ses res~ltinann loss,llgjury or death management, upkeep, repair or control of said p g to any tenant, licensee, employee, occupant or any other persons. 16. Waiver of Statute of Limitations. Time is of the essence in all of Trustor's obligations and duties hereunder, and to the extent permitted by law, Trustor waives all present or future statutes of limitations with respect to any debt, demand or obligation secured hereby and any action or proceeding for the purpose of enforcing this Deed of Trust or any rights or remedies contained herein. 17. Assignment of Deposits. In the event construction of improvements is contemplated by the loan evidenced by the Note secured hereby, as additional security therefore, Trustor hereby transfers and assigns to Beneficiary, all right, title and interest to any and all monies deposited by or on behalf of Trustor with any city, county, public body or agency, sanitary district, utility company and any other body or agency, for the installation or to secure the installation of any utility by Trustor, pertaining to the Trust Property. 18. Entity Existence. If Trustor is other than. a natural person, it will do all things necessary to preserve its existence as a validly formed entity, as the case may be, and all rights and privileges under the laws of the state of its creation, formation or organization. 19. Forbearance by Beneficiary Not a Waiver. Any forbearance by Beneficiary in exercising any right or remedy hereunder, or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or the discharge of liens or charges by Beneficiary shall not be a waiver of Beneficiary's right to accelerate the maturity of the Indebtedness. 8 ~af ~8 ~UOS~3~.~ 20. Remedies Cumulative and Not Exclusive. All remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or afforded by law or equity, and may be exercised concurrently, independently or successively. Furthermore, no remedy herein conferred upon or reserved to Beneficiary is intended to be exclusive of any 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 Documents to Beneficiary, or to which Beneficiary may be otherwise entitled, may be exercised, concurrently or independently, from time to time and as often as may be deemed expedient by Beneficiary. .Beneficiary may pursue inconsistent remedies. 21. Successors and Assigns Bound Joint and Several Liability. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of Beneficiary, Trustee and Trustor. All covenants and agreements of Trustor shall be joint and several. 22. Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to Trustor provided for in this Deed of Trust shall be given by mailing such notice by certified mail, return receipt requested addressed to Trustor at its mailing address set forth above or at such other address as Trustor may designate by notice to Beneficiary as provided herein; and (b) any notice to Beneficiary or Trustee shall be given by certified mail, return receipt requested, to Beneficiary's and Trustee's mailing address stated herein or to such other address as Beneficiary or Trustee may designate by notice to Trustor as provided for herein. Any notice provided for in this Deed of Trust shall be deemed to have been given to Trustor, Beneficiary or Trustee when given in the manner designated herein. No notice shall be filed by Trustor and, if filed, be effective against Trustee and Beneficiary with respect to any aspect of this Deed of Trust unless such notice shall have been given first to the Trustee and the Beneficiary as provided in this paragraph. 23. Governing Law' Severability. This Deed of Trust shall be governed by the State of Nebraska. In the event any provision or clause of this Deed of Trust conflicts with applicable law, such conflict shall not affect other provisions of this Deed of Trust which can be given effect without the conflicting provisions and to this end the provisions of this Deed of Trust are declared to be severable. 24. Events of Default. Each of the following occurrences shall constitute an event of default hereunder (hereinafter called an "Event of Default"): (a) Trustor, or any other party obligated on any portion of the Indebtedness, shall fail to pay when due any principal, interest, or principal and interest on the Indebtedness; (b) Any warranty of title made by Trustor herein shall be untrue; 9 g otl~ 2U0813~0 (c) Trustor shall fail to observe or perform any of the covenants, agreements or conditions of this Deed of Trust; (d) Any representation or warranty made by Trustor on any financial statements or reports submitted to Beneficiary by or on behalf of Trustor shall prove false or materially misleading; (e) Subject to any applicable cure period., Trustor shall fail to perform or observe any of the covenants, conditions or agreements contained in, or binding upon Trustor under the Note and the Loan Agreement; (f) A trustee, receiver o,r liquidator of the Trust Property or of Trustor shall be appointed, or any of the creditors of Trustor shall file a petition in bankruptcy against Trustor, or for the reorganization of Trustor pursuant to the Federal Bankruptcy Code, or any similar law, whether federal or state, and if such order or petition shall not be discharged or dismissed within thirty (30) days after date on which such order or petition was filed; (g) Trustor shall file a petition pursuant to the Federal Bankruptcy Code or any similar law, federal or state, or if Trustor shall be adjudged a bankrupt, or be declared insolvent, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debt as they become due, or shall consent to the appointment of a receiver for all or any part of the Trust Property; (h) Final judgment for the payment of money shall be rendered against Trustor and Trustor shall not discharge the same, or cause it to be discharged, within thirty (30) days after the entry thereof, or shall not appeal therefrom or from the order, decree or process upon which or pursuant to which said judgment was granted, based or entered, and secure a stay of execution pending such appeal; (i) Trustor shall sell or convey the Trust Property, or any part hereof, or any interest therein, or shall be divested of its title, or any interest therein, in any manner or way, whether voluntarily or involuntarily, without the written consent of beneficiary being first had and obtained; (j) If Trustor is other than a natural person and more than ten percent (10%) of the beneficial ownership interests, as the case may be, shall be transferred or conveyed, whether voluntarily or involuntarily, without the written consent of Beneficiary being first had and obtained; and (k) Trustor shall fail to property maintain and preserve the Trust Property, including, but not limited to, the maintenance of the Trust Property free from all hazardous substances and hazardous waste as described in paragraph 34 below. 10 ~p a+)~ NIJVV~~~t7 25. Acceleration of Debt; Foreclosure. Upon the occurrence of any. Event of Default, or any time thereafter, Beneficiary may, at its option, declare all the Indebtedness secured hereby immediately due and payable and the same shall bear interest at the default rate, if any, set forth in the Note, or otherwise at the highest rate permitted by law, and, irrespective of whether Beneficiary exercises said option, it may, at its option and in its sole discretion, without any further notice or demand to or upon Trustor, do one or more of the following: (a) Beneficiary may enter upon, take possession of, manage and operate the Trust Property or any part thereof; make repairs and alterations and do any acts which Beneficiary deems property to protect the security thereof, and either with or without taking possession, in its own name, sue for or otherwise collect and receive rents, issues and profits, including those past due and unpaid, and apply the same, less costs and expenses or operation and collection, including reasonable attorneys' fees and Beneficiary's costs, upon the Indebtedness secured hereby and in such order as Beneficiary may determined. Upon request of Beneficiary, Trustor shall assemble and shall make available to Beneficiary any of the Trust Property which has been removed. The entering upon and taking possession of the Trust Property, the collection of any rents, issues and profits, and the application thereof as aforesaid, shall not cure or waive any default theretofore or thereafter occurring, or affect any notice of default or notice of sale hereunder or invalidate any act done pursuant to any such notice. Notwithstanding Beneficiary's continuance in possession or receipt and application of rents, issues or profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law upon or after the occurrence of an Event of Default, including the right to exercise the power of sale. Any of the actions referred to in this paragraph may be taken by Beneficiary at such time as Beneficiary may determine without regard to the adequacy of any security for the Indebtedness secured hereby. (b) Beneficiary shall, without regard to the adequacy of any security for the Indebtedness secured hereby, be entitled to the appointment of a receiver by any court having jurisdiction, without notice, to take possession of, protect and manage the Trust Property and operate the same and collect the rents, issues and profits therefrom. (c) Beneficiary may bring any action in any court of competent jurisdiction to foreclose this Deed of Trust or enforce any of the covenants hereof. (d) Beneficiary may elect to cause the Trust Property or any part thereof to be sold under the power of sale, and in such event, Beneficiary or Trustee shall give such notice of default and notice of sale as may be then required by law. Thereafter, upon the expiration of such time and the giving of such notice of sale as may then be required by law, Trustee, at the time and place specified by the notice of sale, shall sell such Trust Property, or any per 11 l1 of 1~ ~U0~13~9 thereof specified by Beneficiary, at public auction to the highest bidder for cash in lawful money of the United States of America. Upon receipt of payment of the price bid, Trustee shall apply the proceeds in the following order: (i) to the cost and expenses of exercising the power of sale and of the sale, including, but not limited to, Trustee's fees of not more than $500.00 plus one-half of one percent (1/2%)of the gross sale price, and reasonable attorneys' fees; (ii} to the Indebtedness; and (ii) the excess, if any, to the person or persons legally entitled thereto. All costs and expenses incurred by Beneficiary in enforcing any right under this Deed of Trust, including, without limitation, abstract or title fees,; appraisal fees, premiums for title insurance, attorneys' ,fees and court costs, shall be and constitute Indebtedness secured hereby. 26. Duties of Trustee. Trustor agrees that: (a) Duties and obligations of Trustee shall be determined solely by the express provisions of this Deed of Trust and Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth herein, and no implied covenants or obligations shall be imposed upon Trustee; (b) No provision of this Deed of Trust shall require Trustee to expend or risk its own funds, or otherwise incur any financial obligation in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers; (c) Trustee may consult with counsel of its own choosing and the advice of such counsel shall be full and complete authorization and protection in the respect of any action taken or suffered by it hereunder in good faith and reliance thereon; and (d) Trustee shall not be liable for any action taken by it in good faith and reasonably believed by it to be authorized or within its discretion or rights or powers conferred upon it by this Deed of Trust. 27. Security Agreement and Fixture Filing. This Deed of Trust shall constitute a security agreement and fixture filing under the provisions of the Nebraska Uniform Commercial Code with respect to those fixtures described in the preambles hereof as constituting a part of the Trust Property, together with all other property of Trustor, either similar or dissimilar to the same, now or hereafter located at or on the Trust Property. 28. Future Advances. Upon request of Trustor, Beneficiary, at Beneficiary's option, prior to reconveyance of the Trust Property by Trustee to Trustor, may make future advances to Trustor. Such future advances, with interest thereon, shall be secured by this Deed of Trust. At no time shall the principal amount of the Indebtedness secured by this Deed of Trust, not including sums advanced to protect the 12 ~d, p}- J ~ 2008i31U security, exceed the total sum of One Million Seven Hundred Eighty Seven Thousand and No/100ths Dollars ($1,787,000.00). Advances of disbursements made by Beneficiary to protect the security, under the terms hereof, while discretionary, shall not be deemed to be optional advances. 29. Reconveyance. Upon payment of all Indebtedness secured by this Deed of Trust, Beneficiary shall request Trustee to reconvey the Trust Property and shall surrender this Deed of Trust and all notes evidencing ..Indebtedness secured by this Deed of Trust to Trustee. Trustee shall reconvey the Trust Property without warranty and without charge to the person or persons legally entitled thereto. Such person or persons shall pay all costs of recordation, if any. 30. Substitute Trustee. Beneficiary, at its option, may from time to time remove Trustee and appoint a Successor Trustee to any Trustee appointed hereunder by an instrument recorded in the county in which this Deed of Trust is recorded. Without conveyance of the Trust Property, the Successor Trustee shall succeed to all title, power and duties conferred upon Trustee herein and by applicable law. 31. Miscellaneous Rights of Beneficiary. With notice to Trustor, Beneficiary may at any time and from time to time consent to the making of any plat of the Trust Property or the creation of any easement thereon or any covenants restricting use or occupancy thereof or agree to alter of amend the terms of this Deed of Trust. Any personal property remaining upon the Trust Property after the Trust Property has been possessed or occupied by Beneficiary, its agent or any purchaser following Trustee's sale, foreclosure, or under any deed in lieu of Trustee's sale or foreclosure, shall be conclusively presumed to have been abandoned by Trustor. 32. Notice to Trustor. Trustor hereby requests that a copy of any notice of default and notice of sale made or executed by Trustee pursuant to the provisions hereof be sent to Trustor at its mailing address set forth hereinabove. 33. Hazardous Waste. The Trustor represents, warrants and covenants to Beneficiary and Trustee as follows: (a) No hazardous substances or hazardous waste are presently stored or otherwise located on, in or under the Trust Property, and no part of the rust Property, including the ground water located thereon, is presently contaminated by any such substances or waste and no investigations, inquiries, orders or other proceedings by or before any governmental agency are pending or threatened respecting hazardous substances or hazardous waste. For the purpose of this Deed of Trust, the terms "hazardous, toxic or dangerous waste, substance of material" within the meaning of the Federal Comprehensive Environmental Response, Compensation and Liability Act, or any other Federal, state or locate statute, law, ordinance, code, rule, regulation, order, or decree regulating, relating to, or imposing liability or standards of conduct concerning any 13 /~ ot) ~' 2f~08131~ hazardous, toxic, or dangerous waste, substance or material, as now or at anytime hereafter may be in effect. (b) Until the Indebtedness is paid in full, all hazardous substances or hazardous waste (as defined above), which may be used by any person for any purpose upon the Trust Property shall be used or stored thereon only in a safe, approval manner, in accordance with all industrial standards and all laws, regulations and requirements for such storage promulgated by any governmental authority, and the Trust Property will not be used for the principal purpose of storing any such substances or waste and no such storage or use will otherwise be allowed on the Trust Property which will cause, or which yvill increase the likelihood of causing, the release of such substances or waste on, in or under the Trust Property. (c) Trustor shall promptly notify Beneficiary of any event that would render any representation or warranty contained in this paragraph incorrect in any respect. In such event, Beneficiary may require that all violations of law with respect thereto be corrected and that all necessary governmental permits be obtained all at Trustor's sole expense. 34. Indemnity. Without limiting any applicable indemnification provisions of the Loan Agreement, Trustor hereby agrees to indemnify, defend, and hold harmless Beneficiary and its respective officers, directors, shareholders, partners, agents, successors and assigns (hereinafter the "Indemnified Parties"), from and against any and all claims, demands, liabilities, losses, lawsuits, judgments and costs and expenses (hereinafter "Liabilities") (including, without limitation, reasonable attorneys' fees and costs, including reasonably allocated costs of in-house counsel) which Beneficiary or any of the other Indemnified Parties may incur as a result of, or in connection with, this Deed of Trust or the exercising of Beneficiary's rights hereunder, including, without limitation liabilities resulting from the negligence of Beneficiary, but excluding Liabilities resulting from Beneficiary's gross negligence or willful misconduct. 35. Merger. No merger of any interests shall occur as a result of Beneficiary's acquiring any other estate in or any other lien on the Tr.~st Property unless Beneficiary consents to a merger in writing, including without limitation any merger which may arise, upon foreclosure of the lien of this Deed of Trust or acceptance of a deed in lieu thereof by Beneficiary. 36. Interpretation. Wherever used in this Deed of Trust, unless the context otherwise indicates a contrary intent, or unless otherwise specifically provided herein, the word "Trustor" shall mean and include each Trustor executing below and any subsequent owner or owners of the Trust Property, and the word Beneficiary shall mean and include not only the original Beneficiary hereunder but also any future owner and holder, including pledgees, of tfie Note secured hereby. In this Deed of Trust whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the neuter includes the feminine and/or masculine, and the singular number includes 14 /~_ ~f /~ 2U08131U the plural and conversely. In this Deed of Trust: (i) the use of the word "including" shall not be deemed to limit the generality of the term or clause to which it has reference, whether or not nonlimiting language (such as without limitation," or "but not limited to," or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement, term or matter; (ii) "or" shall not be exclusive; and (iii) "all" includes "any" and "any" includes "all." The captions and headings of the paragraphs of this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof 37. Consent Delegation to Sub-agents. The granting or withholding of consent by Beneficiary to any transaction as required by the terms hereof shall not be deemed a waiver of the right to require consent to future or successive transactions. Wherever a power of attorney is conferred upon Beneficiary hereunder, it is understood and agreed that such power is conferred with full power of substitution, and Beneficiary may elect in its sole discretion to exercise such power itself or to delegate such power, or any part thereof, to one or more sub-agents. 38. JURISDICTION. EACH TRUSTOR AND BENEFICIARY TO THE EXTENT THAT IT MAY LAWFULLY DO SO, HEREBY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEBRASKA AND THE UNITED STATES DISTRICT COURTS FOR THE DISTRICT IN WHICH THE PROPERTY IS LOCATED, AS WELL AS TO THE JURISDICTION OF ALL COURTS FROM WHICH AN APPEAL MAY BE TAKEN FROM THE AFORESAID COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF ANY OF THEIR OBLIGATIONS UNDER OR WITH RESPECT TO THIS AGREEMENT, AND EACH EXPRESSLY WAIVES ANY AND ALL OBJECTIONS IT MAY HAVE AS TO VENUE IN ANY OF SUCH COURTS. 39. WAIVER OF JURY TRIAL. EACH TRUSTOR AND BENEFICIARY MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS OR ANY OTHER LOAN DOCUMENT CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR BENEFICIARY TO ACCEPT THE NOTE AND MAKE THE LOAN. 40. Amendments. This Deed of Trust may not be modified or amended except by a written agreement signed by Beneficiary. ' 41. FINAL AGREEMENT. THIS WRITTEN INSTRUMENT AND OTHER DOCUMENTS EVIDENCING, RELATING TO AND SECURING THE OBLIGATIONS SECURED HEREUNDER AND THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY 15 /,~' o f l~ 2UQ813~Q EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. 42. Execution in Triplicate. The parties hereto expressly agree that this Deed of Trust shall be executed by Trustor in triplicate original in order to facilitate the recording of this Deed of Trust in the office of the Register of Deeds for the three different counties so that the Deed of Trust becomes alien-against the Trust Property on or about the same date for each parcel that is included in the Trust Property. [The remainder of this page is intentionally-left blank] 16 /~°}~~ 2~o~~3iy IN WITNESS WHEREOF, this Deed of Trust has been duly executed the day and year first above written. IRET Properties, a North Dakota Limited Partnership By IRET, Inc. Its General Partn By ~ Thomas A. Wentz, Its Senior Vi.~~,,.President STATE OF NORTH DAKOTA ) '~4 )ss. PIOTAFiY ` COUNTY OF ~~~f~ ) ~ PU~LIG ti~ ~ .E:EF The foregoing instrument was acknowle N.L~ ~i~r me this °?g day of February, 2008, by Thomas A. Wentz, Jr., the Seni °• President of IRET, Inc., a North Dakota corporation, as General Partner of IRET Properties, a North Dakota Limited Partnership, on behalf of the partnership. DAN LEIDHOt_T `~~ Notary Public State of North ®akota Notary Public My Commissio.. ~:~~~,=°;~ a7ct. 2Q, ?Q'R 2 This instrument drafted by: Christoffel & Elliott, P.A. 1111 UBS Plaza 444 Cedar Street St. Paul, Minnesota 55101-2129 (651) 224-0244 ko/1298.286-NE Deed of Trust ~• 17 /7 .o f l ~ 2U081319 EXHIBIT A LEGAL DESCRIPTION The land herein referred to is situated in the Counties of Adams, Douglas and Dodge, State of Nebraska and is described as follows: PARCEL 1: (ADAMS COUNTY) Lot 6, Block 1, Westridge Addition to the City of Hastings, Adams County, Nebraska. PARCEL 2: (DOUGLAS COUNTY) Lot 1, Spring Ridge Replat 4, an Administrative Subdivision, being a replat of Lot 16, Spring Ridge Replat Three, a Subdivision, as surveyed, platted and recorded in Douglas County, Nebraska. PARCEL 3: (DODGE COUNTY) Lot 1, Shalimar Third Addition, an addition to the City of Fremont, Dodge County, Nebraska. 18 /~ofl~