WHEN RECORDED MAIL TO:
XXXXXXX BANK NATIONAL ASSOCIATION
0000 XX 0XX XX
XX XXX 0000
XX XXXXX, XX 00000 FOR RECORDER'S USE ONLY
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CONSTRUCTION DEED OF TRUST
THIS DEED OF TRUST IS A CONSTRUCTION SECURITY AGREEMENT
WITHIN THE MEANING OF THE NEBRASKA CONSTRUCTION LIEN ACT
THIS DEED OF TRUST is dated December 19, 2001, among HUSKER AG PROCESSING, LLC,
A NEBRASKA LIMITED LIABILITY COMPANY, whose address is PO BOX 10, PLAINVIEW, NE
68769 ("Trustor"); XXXXXXX BANK NATIONAL ASSOCIATION, whose address is 0000 XX
0XX XX, XX XXX 0000, XX XXXXX, XX 00000 (referred to below sometimes as "Lender"
and sometimes as "Beneficiary"); and LAWYER'S TITLE INSURANCE CORPORATION, whose
address is XXXXX, NE (referred to below as "Trustee").
CONVEYANCE AND GRANT. For valuable consideration, Trustor conveys to Trustee in
trust, WITH POWER OF SALE, for the benefit of Lender as Beneficiary, all at
Trustor's right, title, and interest in and to the following described real
property, together with all existing or subsequently erected or affixed
buildings, improvements and fixtures; all easements, rights of way, and
appurtenances; all water, water rights and ditch rights (including stock in
utilities with ditch or irrigation rights); and all other rights, royalties, and
profits relating to the real property, including without limitation all
minerals, oil, gas, geothermal and similar matters, (the "Real Property")
located in XXXXXX County, State of Nebraska:
See EXHIBIT "A", which is attached to this Deed of Trust and made a part of
this Deed of Trust as if fully set forth herein.
The Real Property or its address is commonly known as XXXXXXX 00 XXXX,
XXXXXXXXX, XX 00000. The Real Property tax identification number is 000000000
CROSS--COLLATERALIZATION. In addition to the Note, this Deed of Trust secures
all obligations, debts and liabilities, plus interest thereon, of Trustor to
Lender, or any one or more of them, as well as all claims by Lender against
Trustor or any one or more of them, whether now existing or hereafter arising,
whether related or unrelated to the purpose of the Note, whether voluntary or
otherwise, whether due or not due, direct or indirect, determined or
undetermined, absolute or contingent, liquidated or unliquidated whether Trustor
may be liable individually or jointly with others, whether obligated as
guarantor, surety, accommodation party or otherwise, and whether recovery upon
such amounts may be or hereafter may become barred by any statute of
limitations, and whether the obligation to repay such amounts may be or
hereafter may become otherwise unenforceable.
Trustor presently assigns to Lender (also known as Beneficiary in this Deed of
Trust) all of Trustor's right, title, and interest in and to all present and
future leases of the Property and all Rents from the Property. In addition,
Trustor grants to Lender a Uniform Commercial Code security interest in the
Personal Property and Rents.
THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST
IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT OF THE
INDEBTEDNESS AND (B) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THE NOTE, THE
RELATED DOCUMENTS, AND THIS DEED OF TRUST. THIS DEED OF TRUST, INCLUDING THE
ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL
PROPERTY, IS ALSO GIVEN TO SECURE ANY AND ALL OF TRUSTOR'S OBLIGATIONS UNDER
THAT CERTAIN CONSTRUCTION LOAN AGREEMENT BETWEEN TRUSTOR AND LENDER OF EVEN DATE
HEREWITH. ANY EVENT OF DEFAULT UNDER THE CONSTRUCTION LOAN AGREEMENT, OR ANY OF
THE RELATED DOCUMENTS REFERRED TO THEREIN, SHALL ALSO BE AN EVENT OF DEFAULT
UNDER THIS DEED OF TRUST. THIS DEED OF TRUST IS GIVEN AND ACCEPTED ON THE
FOLLOWING TERMS:
PAYMENT AND PERFORMANCE. Except as otherwise provided in this Deed of Trust,
Trustor shall pay to Lender all amounts secured by this Deed of Trust as they
become due, and shall strictly and in a timely manner perform all of Trustor's
obligations under the Note, this Deed of Trust, and the Related Documents.
POSSESSION AND MAINTENANCE OF THE PROPERTY. Trustor agrees that Trustor's
possession and use of the Property shall be governed by the following
provisions:
DEED OF TRUST
Loan No: 53455 (Continued) Page 2
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Possession and Use. Until the occurrence of an Event of Default, Trustor
may (1) remain in possession and control of the Property; (2) use, operate
or manage the Property; and (3) collect the Rents from the Property.
Duty to Maintain. Trustor shall maintain the Property in tenantable
condition and promptly perform all repairs, replacements, and maintenance
necessary to preserve its value.
Compliance With Environmental Laws. Trustor represents and warrants to
Lender that: (1) During the period of Trustor's ownership of the Property,
there has been no use, generation, manufacture, storage, treatment,
disposal, release or threatened release of any Hazardous Substance by any
person on, under, about or from the Property; (2) Trustor has no knowledge
of, or reason to believe that there has been, except as previously
disclosed to and acknowledged by Xxxxxx in writing, (a) any breach or
violation of any Environmental Laws, (b) any use, generation, manufacture,
storage, treatment, disposal, release or threatened release of any
Hazardous Substance on, under, about or from the Property by any prior
owners or occupants of the Property, or (c) any actual or threatened
litigation or claims of any kind by any person relating to such matters;
and (3) Except as previously disclosed to and acknowledged by Xxxxxx in
writing, (a) neither Trustor nor any tenant, contractor, agent or other
authorized user of the Property shall use, generate, manufacture, store,
treat, dispose of or release any Hazardous Substance on, under, about or
from the Property; and (b) any such activity shall be conducted in
compliance with all applicable federal, state, and local laws, regulations
and ordinances, including without limitation all Environmental Laws.
Trustor authorizes Lender and its agents to enter upon the Property to make
such inspections and tests, at Trustor's expense, as Lender may deem
appropriate to determine compliance of the Property with this section of
the Deed of Trust. Any inspections or tests made by Lender shall be for
Lender's purposes only and shall not be construed to create any
responsibility or liability on the part of Lender to Trustor or to any
other person. The representations and warranties contained herein are based
on Trustor's due diligence in investigating the Property for Hazardous
Substances. Trustor hereby (1) releases and waives any future claims
against Lender for indemnity or contribution in the event Trustor becomes
liable for cleanup or other costs under any such laws; and (2) agrees to
indemnify and hold harmless Lender against any and all claims, losses,
liabilities, damages, penalties, and expenses which Lender may directly or
indirectly sustain or suffer resulting from a breach of this section of the
Deed of Trust or as a consequence of any use, generation, manufacture,
storage, disposal, release or threatened release occurring prior to
Trustor's ownership or interest in the Property, whether or not the same
was or should have been known to Trustor. The provisions of this section of
the Deed of Trust, including the obligation to indemnify, shall survive the
payment of the Indebtedness and the satisfaction and reconveyance of the
lien of this Deed of Trust and shall not be affected by Xxxxxx's
acquisition of any interest in the Property, whether by foreclosure or
otherwise.
Nuisance, Waste. Trustor shall not cause, conduct or permit any nuisance
nor commit, permit, or suffer any stripping of or waste on or to the
Property or any portion of the Property. Without limiting the generality of
the foregoing, Trustor will not remove, or grant to any other party the
right to remove, any timber, minerals (including oil and gas), coal, clay,
scoria, soil, gravel or rock products without Lender's prior written
consent.
Removal of Improvements. Trustor shall not demolish or remove any
Improvements from the Real Property without Xxxxxx's prior written consent.
As a condition to the removal of any Improvements, Lender may require
Trustor to make arrangements satisfactory to Lender to replace such
Improvements with Improvements of at least equal value.
Xxxxxx's Right to Enter. Xxxxxx and Xxxxxx's agents and representatives may
enter upon the Real Property at all reasonable times to attend to Lenders
interests and to inspect the Real Property for purposes of Trustor's
compliance with the terms and conditions of this Deed of Trust.
Compliance with Governmental Requirements. Trustor shall promptly comply
with all laws, ordinances, and regulations, now or hereafter in effect, of
all governmental authorities applicable to the use or occupancy of the
Property, including without limitation, the Americans With Disabilities
Act. Trustor may contest in good faith any such law, ordinance, or
regulation and withhold compliance during any proceeding, including
appropriate appeals, so long as Trustor has notified Lender in writing
prior to doing so and so long as, in Xxxxxx's sole opinion, Xxxxxx's
interests in the Property are not jeopardized. Lender may require Trustor
to post adequate security or a surety bond, reasonably satisfactory to
Lender, to protect Xxxxxx's interest.
Duty to Protect. Xxxxxxx agrees neither to abandon or leave unattended the
Property. Trustor shall do all other acts, in addition to those acts set
forth above in this section, which from the character and use of the
Property are reasonably necessary to protect and preserve the Property.
Construction Loan. If some or all of the proceeds of the loan creating the
Indebtedness are to be used to construct or complete construction of any
Improvements on the Property, the Improvements shall be completed no later
than the maturity date of the Note (or such earlier date as Lender may
reasonably establish) and Trustor shall pay in full all costs and expenses
in connection with the work. Xxxxxx will disburse loan proceeds under such
terms and conditions as Xxxxxx may deem reasonably necessary to insure that
the interest created by this Deed of Trust shall have priority over all
possible liens, including those of material suppliers and workmen. Lender
may require, among other things, that disbursement requests be supported by
receipted bills, expense affidavits, waivers of liens, construction
progress reports, and such other documentation as Lender may reasonably
request.
DUE ON SALE -- CONSENT BY XXXXXX. Lender may, at Xxxxxx's option, declare
immediately due and payable all sums secured by this Deed of Trust upon the sale
or transfer, without Xxxxxx's prior written consent, of all or any part of the
Real Property, or any interest in the Real Property. A "sale or transfer" means
the conveyance of Real Property or any right, title or interest in the Real
Property; whether legal, beneficial or equitable; whether voluntary or
involuntary; whether by outright sale, deed, Installment sale contract, land
contract, contract for deed, leasehold interest with a term greater than three
(3) years, lease--option contract, or by sale, assignment, or transfer of any
beneficial interest in or to any land trust holding title to the Real Property,
or by any other method of conveyance of an interest in the Real Property. If any
Trustor is a corporation, partnership or limited liability company, transfer
also includes any change in ownership of more than twenty-five percent (25%) of
the voting stock, partnership interests or limited liability company interests,
as the case may be, of such Trustor. However, this option shall not be exercised
by Lender if such exercise is prohibited by federal law or by Nebraska law.
TAXES AND LIENS. The following provisions relating to the taxes and liens on the
Property are part of this Deed of Trust:
Payment. Trustor shall pay when due (and in all events prior to
delinquency) all taxes, special taxes, assessments, charges (including
water and sewer), fines and impositions levied against or on account of the
Property, and shall pay when due all claims for work done on or for
services rendered or material furnished to the Property. Trustor shall
maintain the Property free of all liens having priority over or equal to
the
DEED OF TRUST
Loan No: 53455 (Continued) Page 3
================================================================================
interest of Lender under this Deed of Trust, except for the lien of taxes
and assessments not due and except as otherwise provided in this Deed of
Trust.
Right to Contest. Trustor may withhold payment of any tax, assessment, or
claim in connection with a good faith dispute over the obligation to pay,
so long as Xxxxxx's Interest in the Property is not jeopardized. If a lien
arises or is filed as a result of nonpayment, Trustor shall within fifteen
(15) days after the lien arises or, if a lien is filed, within fifteen (15)
days after Trustor has notice of the filing, secure the discharge of the
lien, or if requested by Xxxxxx, deposit with Lender cash or a sufficient
corporate surety bond or other security satisfactory to Lender in an amount
sufficient to discharge the lien plus any costs and attorneys' fees, or
other charges that could accrue as a result of a foreclosure or sale under
the lien, in any contest, Trustor shall defend itself and Lender and shall
satisfy any adverse judgment before enforcement against the Property.
Trustor shall name Xxxxxx as an additional obligee under any surety bond
furnished in the contest proceedings.
Evidence of Payment. Trustor shall upon demand furnish to Lender
satisfactory evidence of payment of the taxes or assessments and shall
authorize the appropriate governmental official to deliver to Lender at any
time a written statement of the taxes and assessments against the Property.
Notice of Construction. Trustor shall notify Lender at least fifteen (15)
days before any work is commenced, any services are furnished, or any
materials are supplied to the Property, if any mechanic's lien,
materialmen's lien, or other lien could be asserted on account of the work,
services, or materials. Trustor will upon request of Lender furnish to
Lender advance assurances satisfactory to Lender that Trustor can and will
pay the cost of such improvements.
PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the
Property are a part of this Deed of Trust.
Maintenance of Insurance. Trustor shall procure and maintain policies of
fire insurance with standard extended coverage endorsements on a
replacement basis for the full insurable value covering all Improvements on
the Real Property in an amount sufficient to avoid application of any
coinsurance clause, and with a standard mortgagee clause in favor of
Xxxxxx. Trustor shall also procure and maintain comprehensive general
liability insurance in such coverage amounts as Lender may request with
Trustee and Lender being named as additional insureds in such liability
insurance policies. Additionally, Trustor shall maintain such other
insurance, including but not limited to hazard, business interruption, and
boiler insurance, as Lender may reasonably require. Policies shall be
written in form, amounts, coverages and basis reasonably acceptable to
Lender and issued by a company or companies reasonably acceptable to
Lender. Trustor, upon request of Xxxxxx, will deliver to Lender from time
to time the policies or certificates of insurance in form satisfactory to
Lender, including stipulations that coverages will not be cancelled or
diminished without at least thirty (30) days prior written notice to
Lender. Each insurance policy also shall include an endorsement providing
that coverage in favor of Lender will not be impaired in any way by any
act, omission or default of Trustor or any other person. Should the Real
Property be located in an area designated by the Director of the Federal
Emergency Management Agency as a special flood hazard area, Trustor agrees
to obtain and maintain Federal Flood insurance, if available, within 45
days after notice is given by Lender that the Property is located in a
special flood hazard area, for the full unpaid principal balance of the
loan and any prior liens on the property securing the loan, up to the
maximum policy limits set under the National Flood Insurance Program, or as
otherwise required by Lender, and to maintain such insurance for the term
of the loan.
Application of Proceeds. Trustor shall promptly notify Lender of any loss
or damage to the Property if the estimated cost of repair or replacement
exceeds $5,000.00. Lender may make proof of loss if Trustor fails to do so
within fifteen (15) days of the casualty. Whether or not Xxxxxx's security
is impaired, Lender may, at Xxxxxx's election, receive and retain the
proceeds of any insurance and apply the proceeds to the reduction of the
Indebtedness, payment of any lien affecting the Property, or the
restoration and repair of the Property. If Lender elects to apply the
proceeds to restoration and repair, Trustor shall repair or replace the
damaged or destroyed Improvements in a manner satisfactory to Lender.
Lender shall, upon satisfactory proof of such expenditure, pay or reimburse
Trustor from the proceeds for the reasonable cost of repair or restoration
if Trustor is not in default under this Deed of Trust. Any proceeds which
have not been disbursed within 180 days after their receipt and which
Xxxxxx has not committed to the repair or restoration of the Property shall
be used first to pay any amount owing to Lender under this Deed of Trust,
then to pay accrued interest, and the remainder, if any, shall be applied
to the principal balance of the indebtedness. if Xxxxxx holds any proceeds
after payment in full of the Indebtedness, such proceeds shall be paid to
Trustor as Trustor's interests may appear.
Unexpired Insurance at Sale. Any unexpired insurance shall inure to the
benefit of, and pass to, the purchaser of the Property covered by this Deed
of Trust at any trustee's sale or other sale held under the provisions of
this Deed of Trust, or at any foreclosure sale of such Property.
Trustor's Report on Insurance. Upon request of Xxxxxx, however not more
than once a year, Trustor shall furnish to Lender a report on each existing
policy of insurance showing: (1) the name of the insurer; (2) the risks
insured; (3) the amount of the policy; (4) the property insured, the then
current replacement value of such property, and the manner of determining
that value; and (5) the expiration date of the policy. Trustor shall, upon
request of Xxxxxx, have an independent appraiser satisfactory to Lender
determine the cash value replacement cost of the Property.
XXXXXX'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Xxxxxx's interest in the Property or if Trustor fails to
comply with any provision of this Deed of Trust or any Related Documents,
including but not limited to Trustor's failure to discharge or pay when due any
amounts Trustor is required to discharge or pay under this Deed of Trust or any
Related Documents, Lender on Trustor's behalf may (but shall not be obligated
to) take any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on the Property and paying all costs
for insuring, maintaining and preserving the Property. All such expenditures
incurred or paid by Lender for such purposes will then bear interest at the rate
charged under the Note from the date incurred or paid by Lender to the date of
repayment by Trustor. All such expenses will become a part of the indebtedness
and, at Lender's option, will (A) be payable on demand; (B) be added to the
balance of the Note and be apportioned among and be payable with any installment
payments to become due during either (1) the term of any applicable insurance
policy; or (2) the remaining term of the Note; or (C) be treated as a balloon
payment which will be due and payable at the Note's maturity. The Deed of Trust
also will secure payment of these amounts. Such right shall be in addition to
all other rights and remedies to which Xxxxxx may be entitled upon Default.
WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of
the Property are a part of this Deed of Trust:
Title. Trustor warrants that: (a) Trustor holds good and marketable title
of record to the Property in fee simple, free and clear of all liens and
encumbrances other than those set forth in the Real Property description or
in any title insurance policy, title report, or final title opinion
DEED OF TRUST
Loan No: 53455 (Continued) Page 4
================================================================================
issued in favor of, and accepted by, Xxxxxx in connection with this Deed of
Trust, and (b) Trustor has the full right, power, and authority to execute
and deliver this Deed of Trust to Lender.
Defense of Title. Subject to the exception in the paragraph above, Trustor
warrants and will forever defend the title to the Property against the
lawful claims of all persons. In the event any action or proceeding is
commenced that questions Trustor's title or the interest of Trustee or
Lender under this Deed of Trust, Trustor shall defend the action at
Trustor's expense. Trustor may be the nominal party in such proceeding, but
Xxxxxx shall be entitled to participate in the proceeding and to be
represented in the proceeding by counsel of Xxxxxx's own choice, and
Trustor will deliver, or cause to be delivered, to Lender such instruments
as Lender may request from time to time to permit such participation.
Compliance With Laws. Trustor warrants that the Property and Trustor's use
of the Property complies with all existing applicable laws, ordinances, and
regulations of governmental authorities.
Survival of Representations and Warranties. All representations,
warranties, and agreements made by Trustor in this Deed of Trust shall
survive the execution and delivery of this Deed of Trust, shall be
continuing in nature, and shall remain in full force and effect until such
time as Trustor's indebtedness shall be paid in full.
CONDEMNATION. The following provisions relating to condemnation proceedings are
a part of this Deed of Trust:
Proceedings. If any proceeding in condemnation is filed, Trustor shall
promptly notify Lender in writing, and Trustor shall promptly take such
steps as may be necessary to defend the action and obtain the award.
Trustor may be the nominal party in such proceeding, but Xxxxxx shall be
entitled to participate in the proceeding and to be represented in the
proceeding by counsel of its own choice, and Trustor will deliver or cause
to be delivered to Lender such instruments and documentation as may be
requested by Xxxxxx from time to time to permit such participation.
Application of Net Proceeds. If all or any part of the Property is
condemned by eminent domain proceedings or by any proceeding or purchase in
lieu of condemnation, Lender may at its election require that all or any
portion of the net proceeds of the award be applied to the indebtedness or
the repair or restoration of the Property. The net proceeds of the award
shall mean the award after payment of all reasonable costs, expenses, and
attorneys' fees incurred by Trustee or Lender in connection with the
condemnation.
IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following
provisions relating to governmental taxes, fees and charges are a part of this
Deed of Trust:
Current Taxes, Fees and Charges. Upon request by Xxxxxx, Trustor shall
execute such documents in addition to this Deed of Trust and take whatever
other action is requested by Xxxxxx to perfect and continue Xxxxxx's lien
on the Real Property. Trustor shall reimburse Lender for all taxes, as
described below, together with all expenses incurred in recording,
perfecting or continuing this Deed of Trust, including without limitation
all taxes, fees, documentary stamps, and other charges for recording or
registering this Deed of Trust.
Taxes. The following shall constitute taxes to which this section applies:
(1) a specific tax upon this type of Deed of Trust or upon all or any part
of the Indebtedness secured by this Deed of Trust; (2) a specific tax on
Trustor which Trustor is authorized or required to deduct from payments on
the Indebtedness secured by this type of Deed of Trust; (3) a tax on this
type of Deed of Trust chargeable against the Lender or the holder of the
Note; and (4) a specific tax on all or any portion of the Indebtedness or
on payments of principal and interest made by Trustor.
Subsequent Taxes. If any tax to which this section applies is enacted
subsequent to the date of this Deed of Trust, this event shall have the
same effect as an Event of Default, and Lender may exercise any or all of
its available remedies for an Event of Default as provided below unless
Trustor either (1) pays the tax before it becomes delinquent, or (2)
contests the tax as provided above in the Taxes and Liens section and
deposits with Lender cash or a sufficient corporate surety bond or other
security satisfactory to Lender.
SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to
this Deed of Trust as a security agreement are a part of this Deed of Trust:
Security Agreement. This instrument shall constitute a Security Agreement
to the extent any of the Property constitutes fixtures, and Lender shall
have all of the rights of a secured party under the Uniform Commercial Code
as amended from time to time.
Security Interest. Upon request by Xxxxxx, Trustor shall execute financing
statements and take whatever other action is requested by Xxxxxx to perfect
and continue Xxxxxx's security interest in the Rents and Personal Property.
In addition to recording this Deed of Trust in the real property records,
Lender may, at any time and without further authorization from Trustor,
file executed counterparts, copies or reproductions of this Deed of Trust
as a financing statement. Trustor shall reimburse Lender for all expenses
incurred in perfecting or continuing this security interest. Upon default,
Trustor shall not remove, sever or detach the Personal Property from the
Property. Upon default, Trustor shall assemble any Personal Property not
affixed to the Property in a manner and at a place reasonably convenient to
Trustor and Lender and make it available to Lender within three (3) days
after receipt of written demand from Lender to the extent permitted by
applicable law.
Addresses. The mailing addresses of Trustor (debtor) and Xxxxxx (secured
party) from which information concerning the security interest granted by
this Deed of Trust may be obtained (each as required by the Uniform
Commercial Code) are as stated on the first page of this Deed of Trust.
FURTHER ASSURANCES; ATTORNEY--IN--FACT. The following provisions relating to
further assurances and attorney--in--fact are a part of this Deed of Trust:
Further Assurances. At any time, and from time to time, upon request of
Xxxxxx, Trustor will make, execute and deliver, or will cause to be made,
executed or delivered, to Lender or to Xxxxxx's designee, and when
requested by Xxxxxx, cause to be filed, recorded, refiled, or rerecorded,
as the case may be, at such times and in such offices and places as Lender
may deem appropriate, any and all such mortgages, deeds of trust, security
deeds, security agreements, financing statements, continuation statements,
instruments of further assurance, certificates, and other documents as may,
in the sole opinion of Lender, be necessary or desirable in order to
effectuate, complete, perfect, continue, or preserve (1) Trustor's
obligations under the Note, this Deed of Trust, and the Related Documents,
and (2) the liens and security interests created by this Deed of Trust as
first and prior liens on the Property, whether now owned or hereafter
acquired by Trustor. Unless prohibited by law or Xxxxxx agrees to the
contrary in writing, Trustor shall reimburse Lender for all costs and
expenses incurred in
DEED OF TRUST
Loan No: 53455 (Continued) Page 5
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connection with the matters referred to in this paragraph.
Attorney-in-Fact. If Trustor fails to do any of the things referred to in
the preceding paragraph, Lender may do so for and in the name of Trustor
and at Trustor's expense. For such purposes, Trustor hereby irrevocably
appoints Xxxxxx as Trustor's attorney--in--fact for the purpose of making,
executing, delivering, filing, recording, and doing all other things as may
be necessary or desirable, in Xxxxxx's sole opinion, to accomplish the
matters referred to in the preceding paragraph.
FULL PERFORMANCE. If Trustor pays all the Indebtedness when due, and otherwise
performs all the obligations imposed upon Trustor under this Deed of Trust,
Xxxxxx shall execute and deliver to Trustee a request for full reconveyance and
shall execute and deliver to Trustor suitable statements of termination of any
financing statement on file evidencing Xxxxxx's security interest in the Rents
and the Personal Property. Any reconveyance fee required by law shall be paid by
Trustor, if permitted by applicable law.
EVENTS OF DEFAULT. Each of the following, at Xxxxxx's option, shall constitute
an Event of Default under this Deed of Trust:
Payment Default. Trustor fails to make any payment when due under the
Indebtedness.
Other Defaults. Trustor fails to comply with or to perform any other term,
obligation, covenant or condition contained in this Deed of Trust or in any
of the Related Documents or to comply with or to perform any term,
obligation, covenant or condition contained in any other agreement between
Lender and Trustor.
Compliance Default. Failure to comply with any other term, obligation,
covenant or condition contained in this Deed of Trust, the Note or in any
of the Related Documents. If such a failure is curable and if Trustor has
not been given a notice of a breach of the same provision of this Deed of
Trust within the preceding twelve (12) months, it may be cured (and no
Event of Default will have occurred) if Trustor, after Xxxxxx sends written
notice demanding cure of such failure: (a) cures the failure within fifteen
(15) days; or (b) If the cure requires more than fifteen (15) days,
immediately initiates steps sufficient to cure the failure and thereafter
continues and completes all reasonable and necessary steps sufficient to
produce compliance as soon as reasonably practical.
Default on Other Payments. Failure of Trustor within the time required by
this Deed of Trust to make any payment for taxes or insurance, or any other
payment necessary to prevent filing of or to effect discharge of any lien.
Default in Favor of Third Parties. Should Trustor default under any loan,
extension of credit, security agreement, purchase or sales agreement, or
any other agreement, in favor of any other creditor or person that may
materially affect any of Trustor's property or Trustor's ability to repay
the indebtedness or perform their respective obligations under this Deed of
Trust or any of the Related Documents.
False Statements. Any warranty, representation or statement made or
furnished to Lender by Trustor or on Trustor's behalf under this Deed of
Trust or the Related Documents is false or misleading in any material
respect, either now or at the time made or furnished or becomes false or
misleading at any time thereafter.
Defective Collateralization. This Deed of Trust or any of the Related
Documents ceases to be in full force and effect (including failure of any
collateral document to create a valid and perfected security interest or
lien) at any time and for any reason.
Death or Insolvency. The dissolution of Trustor's (regardless of whether
election to continue is made), or any other termination of Trustor's
existence as a going business or the death of any member, the insolvency of
Trustor, the appointment of a receiver for any part of Trustor's property,
any assignment for the benefit of creditors, any type of creditor workout,
or the commencement of any proceeding under any bankruptcy or Insolvency
laws by or against Trustor.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self--help,
repossession or any other method, by any creditor of Trustor or by any
governmental agency against any property securing the indebtedness. This
includes a garnishment of any of Trustor's accounts, including deposit
accounts, with Lender. However, this Event of Default shall not apply if
there is a good faith dispute by Trustor as to the validity or
reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Trustor gives Xxxxxx written notice of the
creditor or forfeiture proceeding and deposits with Lender monies or a
surety bond for the creditor or forfeiture proceeding, in an amount
determined by Lender, in its sole discretion, as being an adequate reserve
or bond for the dispute.
Breach of Other Agreement. Any breach by Trustor under the terms of any
other agreement between Trustor and Lender that is not remedied within any
grace period provided therein, including without limitation any agreement
concerning any indebtedness or other obligation of Trustor to Lender,
whether existing now or later.
Adverse Change. A material adverse change occurs in Trustor's financial
condition, or Xxxxxx believes the prospect of payment or performance of the
indebtedness is impaired.
Insecurity. Lender in good faith believes itself insecure.
Right to Cure. If such a failure is curable and if Trustor has not been
given a notice of a breach of the same provision of this Deed of Trust
within the preceding twelve (12) months, it may be cured (and no Event of
Default will have occurred) if Trustor, after Xxxxxx sends written notice
demanding cure of such failure: (a) cures the failure within fifteen (15)
days; or (b) if the cure requires more than fifteen (15) days, immediately
initiates steps sufficient to cure the failure and thereafter continues and
completes all reasonable and necessary steps sufficient to produce
compliance as soon as reasonably practical.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this Deed of
Trust, at any time thereafter, Trustee or Lender may exercise any one or more of
the following rights and remedies:
Acceleration Upon Default; Additional Remedies. If any Event of Default
occurs as per the terms of the Note secured hereby, Xxxxxx may declare
all indebtedness secured by this Deed of Trust to be due and payable
and the same shall thereupon become due and
DEED OF TRUST
Loan No: 53455 (Continued) Page 6
================================================================================
payable without any presentment, demand, protest or notice of any kind.
Thereafter, Lender may:
(a) 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 Property, 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 Property, or
part of the Property or interest in the Property; increase the income
from the Property or protect the security of the Property; and, with
or without taking possession of the Property, sue for or otherwise
collect the rents, issues and profits of the Property, including those
past due and unpaid, and apply the same, less costs and expenses of
operation and collection attorneys, fees, to any indebtedness secured
by this Deed of Trust, all in such order as Lender may determine. The
entering upon and taking possession of the Property, the collection of
such rents, issues and profits, and the application thereof shall not
cure or waive any default or notice of default under this Deed of
Trust or invalidate any act done in response to such default or
pursuant to such notice of default; and, notwithstanding the
continuance in possession of the Property or the collection, receipt
and application of rents, issues or profits, Trustee or Lender shall
be entitled to exercise every right provided for in the Note or the
Related Documents or by law upon the occurrence of any event of
default, including the right to exercise the power of sale;
(b) Commence an action to foreclose this Deed of Trust as a mortgage,
appoint a receiver or specifically enforce any of the covenants
hereof; and
(c) Deliver to Trustee a written declaration of default and demand for
sate and a written notice of default and election to cause Trustor's
interest in the Property to be sold, which notice Trustee shall cause
to be duly filed for record in the appropriate offices of the County
in which the Property is located; and
(d) With respect to all or any part of the Personal Property, Lender
shall have all the rights and remedies of a secured party under the
Nebraska Uniform Commercial Code.
Foreclosure by Power of Sale. If Lender elects to foreclose by exercise of
the Power of Sale herein contained, Lender shall notify Trustee and shall
deposit with Trustee this Deed of Trust and the Note and such receipts and
evidence of expenditures made and secured by this Deed of Trust as Trustee
may require.
(a) Upon receipt of such notice from Lender, 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 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
Property 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 matters
or facts shall be conclusive proof of the truthfulness thereof. Any
person, including without limitation Trustor, Trustee, or Lender, 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) all sums expended under the terms of this Deed
of Trust or under the terms of the Note not then repaid, including but
not limited to accrued interest and late charges, (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 Property.
Remedies Not Exclusive. Trustee and Xxxxxx, and each of them, shall be
entitled to enforce payment and performance of any indebtedness or
obligations secured by this Deed of Trust and to exercise all rights and
powers under this Deed of Trust, under the Note, under any of the Related
Documents, or under any other agreement or any laws now or hereafter in
force; notwithstanding, some or all of such indebtedness and obligations
secured by this Deed of Trust may now or hereafter be otherwise secured,
whether by mortgage, deed of trust, pledge, lien, assignment or otherwise.
Neither the acceptance of this Deed of Trust nor its enforcement, whether
by court action or pursuant to the power of sale or other powers contained
in this Deed of Trust, shall prejudice or in any manner affect Trustee's or
Xxxxxx's right to realize upon or enforce any other security now or
hereafter held by Trustee or Lender, it being agreed that Trustee and
Lender, and each of them, shall be entitled to enforce this Deed of Trust
and any other security now or hereafter held by Lender or Trustee in such
order and manner as they or either of them may in their absolute discretion
determine. No remedy conferred upon or reserved to Trustee or Lender, is
intended to be exclusive of any other remedy in this Deed of Trust or by
law provided or permitted, but each shall be cumulative and shall be in
addition to every other remedy given in this Deed of Trust or now or
hereafter existing at law or in equity or by statute. Every power or remedy
given by the Note or any of the Related Documents to Trustee or Lender 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 Lender, and either of them may pursue
inconsistent remedies. Nothing in this Deed of Trust shall be construed as
prohibiting Lender from seeking a deficiency judgment against the Trustor
to the extent such action is permitted by law. Election by Xxxxxx to pursue
any remedy shall not exclude pursuit of any other remedy, and an election
to make expenditures or to take action to perform an obligation of Trustor
under this Deed of Trust, after Trustor's failure to perform, shall not
affect Xxxxxx's right to declare a default and exercise its remedies.
Request for Notice. Trustor, on behalf of Trustor and Xxxxxx, hereby
requests that a copy of any Notice of Default and a copy of any Notice of
Sale under this Deed of Trust be mailed to them at the addresses set forth
in the first paragraph of this Deed of Trust.
Attorneys' Fees; Expenses. If Lender institutes any suit or action to
enforce any of the terms of this Deed of Trust, Lender shall be entitled to
recover such sum as the court may adjudge reasonable as attorneys' fees at
trial and upon any appeal. Whether or not any court action is involved, and
to the extent not prohibited by law, all reasonable expenses Lender incurs
that in Xxxxxx's opinion are necessary at any time for the protection of
its interest or the enforcement of its rights shall become a part of the
Indebtedness payable on demand and shall bear Interest at the Note rate
from the date of the expenditure until repaid. Expenses covered by this
paragraph include, without limitation, however subject to any limits under
applicable law, Xxxxxx's attorneys' fees and Xxxxxx's legal expenses,
whether or not there is a lawsuit, including attorneys' fees and expenses
for bankruptcy proceedings (including efforts to modify or vacate any
automatic stay or injunction), appeals, and any anticipated post--judgment
collection services, the cost of searching records, obtaining title reports
(including foreclosure reports) surveyors' reports, and appraisal fees,
title insurance, and fees for the Trustee, to the extent permitted by
applicable law. Trustor
DEED OF TRUST
Loan No: 53455 (Continued) Page 7
================================================================================
also will pay any court costs, in addition to all other sums provided by
law.
Rights of Trustee. Trustee shall have all of the rights and duties of
Lender as set forth in this section.
POWERS AND OBLIGATIONS OF TRUSTEE. The following provisions relating to the
powers and obligations of Trustee are part of this Deed of Trust:
Powers of Trustee. In addition to all powers of Trustee arising as a matter
of law, Trustee shall have the power to take the following actions with
respect to the Property upon the written request of Xxxxxx and Trustor: (a)
join in preparing and filing a map or plat of the Real Property, including
the dedication of streets or other rights to the public; (b) join in
granting any easement or creating any restriction on the Real Property; and
(c) join in any subordination or other agreement affecting this Deed of
Trust or the Interest of Lender under this Xxxx of Trust.
Trustee. Trustee shall meet all qualifications required for Trustee under
applicable law. In addition to the rights and remedies set forth above,
with respect to all or any part of the Property, the Trustee shall have the
right to foreclose by notice and sale, and Lender shall have the right to
foreclose by judicial foreclosure, in either case in accordance with and to
the full extent provided by applicable law.
Successor Trustee. Xxxxxx, at Xxxxxx's option, may from time to time
appoint a successor Trustee to any Trustee appointed under this Deed of
Trust by an instrument executed and acknowledged by Xxxxxx and recorded in
the office of the recorder of XXXXXX County, State of Nebraska. The
instrument shall contain, in addition to all other matters required by
state law, the names of the original Lender, Trustee, and Trustor, the book
and page (or computer system reference) where this Deed of Trust is
recorded, and the name and address of the successor trustee, and the
instrument shall be executed and acknowledged by all the beneficiaries
under this Deed of Trust or their successors in interest. The successor
trustee, without conveyance of the Property, shall succeed to all the
title, power, and duties conferred upon the Trustee in this Deed of Trust
and by applicable law. This procedure for substitution of Trustee shall
govern to the exclusion of all other provisions for substitution.
NOTICES. Any notice required to be given under this Deed of Trust, including
without limitation any notice of default and any notice of sale shall be given
in writing, and shall be effective when actually delivered, when actually
received by telefacsimile (unless otherwise required by law), when deposited
with a nationally recognized overnight courier, or, if mailed, when deposited in
the United States mail, as first class, certified or registered mail postage
prepaid, directed to the addresses shown near the beginning of this Deed of
Trust. All copies of notices of foreclosure from the holder of any lien which
has priority over this Deed of Trust shall be sent to Xxxxxx's address, as shown
near the beginning of this Deed of Trust. Any party may change its address for
notices under this Deed of Trust by giving formal written notice to the other
parties, specifying that the purpose of the notice is to change the party's
address. For notice purposes, Trustor agrees to keep Xxxxxx informed at all
times of Trustor's current address. Unless otherwise provided or required by
law, if there is more than one Trustor, any notice given by Lender to any
Trustor is deemed to be notice given to all Trustors.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Deed of Trust:
Amendments. This Deed of Trust, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to the
matters set forth in this Deed of Trust. No alteration of or amendment to
this Deed of Trust shall be effective unless given in writing and signed by
the party or parties sought to be charged or bound by the alteration or
amendment.
Annual Reports. If the Property is used for purposes other than Trustor's
residence, Trustor shall furnish to Lender, upon request, a certified
statement of net operating income received from the Property during
Trustor's previous fiscal year in such form and detail as Lender shall
require. "Net operating income" shall mean all cash receipts from the
Property less all cash expenditures made in connection with the operation
of the Property.
Caption Headings. Caption headings in this Deed of Trust are for
convenience purposes only and are not to be used to interpret or define the
provisions of this Deed of Trust.
Merger. There shall be no merger of the interest or estate created by this
Deed of Trust with any other interest or estate in the Property at any time
held by or for the benefit of Lender in any capacity, without the written
consent of Xxxxxx.
Governing Law. This Deed of Trust will be governed by, construed and
enforced in accordance with federal law and the laws of the State of
Minnesota, except and only to the extent of procedural matters related to
the perfection and enforcement of Xxxxxx's rights and remedies against the
Property, which matters shall be governed by the laws of the State of
Nebraska. However, in the event that the enforceability or validity of any
provision of this Deed of Trust is challenged or questioned, such provision
shall be governed by whichever applicable state or federal law would uphold
or would enforce such challenged or questioned provision. The loan
transaction which is evidenced by the Note and this Deed of Trust has been
applied for, considered, approved and made, and all necessary loan
documents have been accepted by Lender in the State of Minnesota.
No Waiver by Xxxxxx. Lender shall not be deemed to have waived any rights
under this Deed of Trust unless such waiver is given in writing and signed
by Xxxxxx. No delay or omission on the part of Lender in exercising any
right shall operate as a waiver of such right or any other right. A waiver
by Xxxxxx of a provision of this Deed of Trust shall not prejudice or
constitute a waiver of Lender's right otherwise to demand strict compliance
with that provision or any other provision of this Deed of Trust. No prior
waiver by Xxxxxx, nor any course of dealing between Xxxxxx and Trustor,
shall constitute a waiver of any of Lender's rights or of any of Trustor's
obligations as to any future transactions. Whenever the consent of Lender
is required under this Deed of Trust, the granting of such consent by
Lender in any instance shall not constitute continuing consent to
subsequent instances where such consent is required and in all cases such
consent may be granted or withheld in the sole discretion of Lender.
Severability. If a court of competent jurisdiction finds any provision of
this Deed of Trust to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision illegal,
invalid, or unenforceable as to any other circumstance. If feasible, the
offending provision shall be considered modified so that it becomes legal,
valid and enforceable. If the offending provision cannot be so modified, it
shall be considered deleted from this Deed of Trust. Unless otherwise
required by law, the illegality, invalidity, or unenforceability of any
provision of this Deed of Trust.
Successors and Assigns. Subject to any limitations stated in this Deed of
Trust on transfer of Trustor's interest, this Deed of Trust shall be
binding upon and inure to the benefit of the parties, their successors and
assigns. If ownership of the Property becomes vested in a person
DEED OF TRUST
Loan No: 53455 (Continued) Page 8
================================================================================
other than Trustor, Xxxxxx, without notice to Trustor, may deal with
Trustor's successors with reference to this Deed of Trust and the
Indebtedness by way of forbearance or extension without releasing Trustor
from the obligations of this Deed of Trust or liability under the
Indebtedness.
Time is of the Essence. Time is of the essence in the performance of this
Deed of Trust.
Waiver of Homestead Exemption. Trustor hereby releases and waives all
rights and benefits of the homestead exemption laws of the State of
Nebraska as to all Indebtedness secured by this Deed of Trust.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Deed of Trust. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Deed of Trust shall have
the meanings attributed to such terms in the Uniform Commercial Code:
Beneficiary. The word "Beneficiary" means XXXXXXX BANK NATIONAL
ASSOCIATION, and its successors and assigns.
Borrower. The word "Borrower" means HUSKER AG PROCESSING, LLC, and all
other persons and entities signing the Note in whatever capacity.
Deed of Trust. The words "Deed of Trust" mean this Deed of Trust among
Trustor, Lender, and Trustee, and includes without limitation all
assignment and security interest provisions relating to the Personal
Property and Rents.
Default. The word "Default" means the Default set forth in this Deed of
Trust in the section titled "Default".
Environmental Laws. The words "Environmental Laws" mean any and all state,
federal and local statutes, regulations and ordinances relating to the
protection of human health or the environment, including without limitation
the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99--499
("XXXX"), the Hazardous Materials Transportation Act, 49 U.S.C. Section
1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901, et seq., or other applicable state or federal laws, rules, or
regulations adopted pursuant thereto or common law, and shall also include
pollutants, contaminants, polychlorinated biphenyls, asbestos, urea
formaldehyde, petroleum and petroleum products, and agricultural chemicals.
Event of Default. The words "Event of Default" mean any of the events of
default set forth in this Deed of Trust in the events of default section of
this Deed of Trust.
Guaranty. The word "Guaranty" means the guaranty from guarantor, endorser,
surety, or accommodation party to Lender, including without limitation a
guaranty of all or part of the Note.
Hazardous Substances. The words "Hazardous Substances" mean materials that,
because of their quantity, concentration or physical, chemical or
infectious characteristics, may cause or pose a present or potential hazard
to human health or the environment when improperly used, treated, stored,
disposed of, generated, manufactured, transported or otherwise handled. The
words "Hazardous Substances" are used in their very broadest sense and
include without limitation any and all hazardous or toxic substances,
materials or waste as defined by or listed under the Environmental Laws.
The term "Hazardous Substances" also includes, without limitation,
petroleum and petroleum by--products or any fraction thereof and asbestos.
Improvements. The word "Improvements" means all existing and future
improvements, buildings, structures, mobile homes affixed on the Real
Property, facilities, additions, replacements and other construction on the
Real Property.
Indebtedness. The word "Indebtedness" means all principal, interest, and
other amounts, costs and expenses payable under the Note or Related
Documents, together with all renewals of, extensions of, modifications of,
consolidations of and substitutions for the Note or Related Documents and
any amounts expended or advanced by Lender to discharge Trustor's
obligations or expenses incurred by Trustee or Lender to enforce Trustor's
obligations under this Deed of Trust, together with interest on such
amounts as provided in this Deed of Trust.
Lender. The word "Lender" means XXXXXXX BANK NATIONAL ASSOCIATION, its
successors and assigns.
Note. The word "Note" means the promissory note dated December 19, 2001, in
the original principal amount of $20,000,000.00 from Trustor to Lender,
together with all renewals of, extensions of, modifications of,
refinancings of, consolidations of, and substitutions for the promissory
note or agreement. The maturity date of this Deed of Trust is June 19,
2003.
Personal Property. The words "Personal Property" mean all equipment,
fixtures, and other articles of personal property now or hereafter owned by
Trustor, and now or hereafter attached or affixed to the Real Property;
together with all accessions, parts, and additions to, all replacements of,
and all substitutions for, any of such property; and together with all
proceeds (including without limitation all insurance proceeds and refunds
of premiums) from any sale or other disposition of the Property.
Property. The word "Property" means collectively the Real Property and the
Personal Property.
Real Property. The words "Real Property" mean the real property, interests
and rights, as further described in this Deed of Trust.
Related Documents. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Indebtedness.
Rents. The word "Rents" means all present and future rents, revenues,
income, issues, royalties, profits, and other benefits derived from the
Property.
Trustee. The word "Trustee" means LAWYER'S TITLE INSURANCE CORPORATION,
whose address is XXXXX, NE and any substitute or successor trustees.
Trustor. The word "Trustor" means HUSKER AG PROCESSING, LLC.
DEED OF TRUST
Loan No: 53455 (Continued) Page 9
================================================================================
TRUSTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS DEED OF TRUST, AND
TRUSTOR AGREES TO ITS TERMS.
THIS DEED OF TRUST IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS DEED OF
TRUST IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT
ACCORDING TO LAW.
TRUSTOR:
HUSKER AG PROCESSING, LLC
By: /s/ Xxxx Xxxxxxx (Seal)
------------------------------------------
XXXX XXXXXXX, Chairman of HUSKER AG
PROCESSING, LLC
By: /s/ Xxxx Xxxxx (Seal)
------------------------------------------
XXXX XXXXX, Secretary of HUSKER AG
PROCESSING, LLC
By: /s/ Xxxx Xxxxxxx (Seal)
------------------------------------------
XXXX XXXXXXX, Treasurer of HUSKER AG
PROCESSING, LLC
--------------------------------------------------------------------------------
LIMITED LIABILITY COMPANY ACKNOWLEDGMENT
STATE OF Nebraska )
)SS
COUNTY OF Xxxxxx )
On this 19th day of December, 2001, before me, the undersigned Notary
Public, personally appeared XXXX XXXXXXX, Chairman; XXXX XXXXX, Secretary; XXXX
XXXXXXX, Treasurer of HUSKER AG PROCESSING, LLC, and known to me to be partners
or designated agents of the limited liability company that executed the Deed of
Trust and acknowledged the Deed of Trust to be the free and voluntary act and
deed of the limited liability company, by authority of statute, its articles of
organization or its operating agreement, for the uses and purposes therein
mentioned, and on oath stated that they are authorized to execute this Deed of
Trust and in fact executed the Deed of Trust on behalf of the limited liability
company.
By /s/ Xxxx Xxx X. Xxxxx
--------------------------------------------
Notary Public in and for the State of Minnesota
---------
Residing at
-----------------------------------
My commission expires
-------------------------
--------------------------------------------------------------------------------
REQUEST FOR FULL RECONVEYANCE
(To be used only when obligations have been paid in full)
To: ___________________________________________, Trustee
The undersigned is the legal owner and holder of all indebtedness secured by
this Deed of Trust. All sums secured by this Deed of Trust have been fully paid
and satisfied. You are hereby directed, upon payment to you of any sums owing to
you under the terms of this Deed of Trust or pursuant to any applicable statute,
to cancel the Note secured by this Deed of Trust (which is delivered to you
together with this Deed of Trust), and to reconvey, without warranty, to the
parties designated by the terms of this Deed of Trust, the estate now held by
you under this Deed of Trust. Please mail the reconveyance and Related Documents
to:
--------------------------------------------------------------------------------
Date: __________________________ Beneficiary:
---------------------
By:
------------------------------
Its:
------------------------------
================================================================================
Exhibit "A":
Beginning at a point 797 feet West of the Northeast corner of Section 6,
Township 27 North, Range 3, West of the 6th P.M., Xxxxxx County, Nebraska;
thence West 525 feet to the Northwest corner of the Northeast Quarter of the
Northeast Quarter of said Section 6; thence South to the North line of the right
of way of the C.B. & Q. Railway Co. about 867 2/10 feet; thence Southeasterly
along the North side of said right of way 508 2/10 feet; thence North 165 feet;
thence Southeasterly along the said right of way to the West side of Lincoln
Street in the Village of Breslau, Nebraska, and being directly South of the
point of starting; thence North to the point of starting, containing 10 acres,
more or less; AND
That part of the Northeast Quarter of the Northwest Quarter and the Northwest
Quarter of the Northeast Quarter of Section 6, Township 27 North, Range 3, West
of the 6th P.M., Xxxxxx County, Nebraska, lying North of the C.B. & Q. right of
way; except a strip of land lying across the Northern part of the Northeast
Quarter of the Northwest Quarter, across the Northern part of the Northwest
Quarter of the Northeast Quarter and across the Northern part of the West 525
feet of the Northeast Quarter of the Northeast Quarter, All in said Section 6,
conveyed to the State of Nebraska by deed recorded in Deed Record 48, Page 524,
described as follows: Referring to the Northwest corner of said Section 6;
thence Easterly on the North line of said Section 6 a distance of 1,163.2 feet,
more or less, to the point of beginning; said point being the Northwest corner
of the Northeast Quarter of the Northwest Quarter of said Section 6; thence
continuing Easterly on said North line a distance of 3,146.8 feet, more or less,
to the Northeast property corner; thence Southerly on the East property line a
distance of 58.9 feet; thence Westerly a distance of 337.8 feet to a point 59.1
feet Southerly from said North line; thence continuing Westerly a distance of
394.8 feet to a point 84.2 feet Southerly from said North line; thence
continuing Westerly a distance of 2,415 feet, more or less, to a point on the
West line of said Northeast Quarter of the Northwest Quarter; thence Northerly
on said West line a distance of 84.0 feet to the point of beginning, said
excepted tract containing 5.78 acres, more or less.
SAID TRACT MAY ALSO BE DESCRIBED AS FOLLOWS:
-------------------------------------------
A tract of land located in the North half of the Northeast Quarter and the
North half of the Northwest Quarter of Section 6, Township 27 North, Range 3,
West of the 6th Principal Meridian, Xxxxxx County, Nebraska, more particularly
described as follows: Commencing at the Northwest corner of said Section 6;
thence South 89 degrees 57 minutes 44 seconds East (an assumed bearing) 1153.87
feet on the North line of said Section 6 to the Northwest corner of the
Northeast Quarter of the Northwest Quarter of said Section 6; thence South 0
degrees 55 minutes 37 seconds East, 84.00 feet on the West line of said
Northeast Quarter of the Northwest Quarter to a point on the South Right-of-Way
line of U.S. Highway #20, said point is also the point of beginning; thence
continuing South 0 degrees 55 minutes 37 seconds East,
Page 1 of 2
326.33 feet on the West line of said Northeast Quarter of the Northwest Quarter
to a point on the North line of the BNSF Railway; thence South 78 degrees 16
minutes 13 seconds East, 591.44 feet on the North line of said Railway; thence
South 11 degrees 44 minutes 21 seconds West, 50.00 feet on the North line of
said Railway; thence South 78 degrees 16 minutes 13 seconds East, 767.59 feet on
the North line of said Railway to a point of curvature; thence Easterly on said
curve having a radius of 5679.58 feet; the arc of said curve having a distance
of 893.71 feet and the chord of said curve having a bearing of South 82 degrees
46 minutes 42 seconds East and a distance of 892.79 feet; thence South 87
degrees 18 minutes 14 seconds East 127.57 feet on the North line of said
Railway; thence North 02 degrees 43 minutes 00 seconds East, 25.00 feet on the
North line of said Railway; thence South 87 degrees 17 minutes 00 seconds East,
645.00 feet on the North line of said Railway; thence South 02 degrees 43
minutes 00 seconds West, 25.00 feet; thence South 87 degrees 17 minutes 00
seconds East, 160.00 feet on the North line of said Railway; thence North 02
degrees 42 minutes 50 seconds East, 165.00 feet on the Northerly line of said
Railway; thence South 87 degrees 17 minutes 10 seconds East, 13.94 feet on the
North line of said Railway to a point on the West line of Lincoln Street to the
Village of Breslau; thence North 0 degrees 39 minutes 56 seconds West, 665.85
feet on said West line of Lincoln Street to a point on the South Right-of-Way
line of said U.S. Highway #20; thence North 89 degrees 57 minutes 14 seconds
West, 337.80 feet on the South Right-of-Way line of said Highway #20; thence
South 86 degrees 26 minutes 09 seconds West, 394.80 feet on said South
Right-of-Way; thence North 89 degrees 56 minutes 51 seconds West, 2415.0 feet on
said South Right-of-Way to the point of beginning, said tract of land contains
46.25 acres, more or less.
Page 2 of 2
