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201300026
<br /> DEED OF TRUST
<br /> Loan No: 81002105 (Continued) Page 7
<br /> Deed of Trust shall be effective unless given in writing and signed by the party or parties sought to be charged or
<br /> bound by the alteration or amendment.
<br /> Annual Reports. If the Property is used for purposes other than Trustor's residence, Trustor shall furnish to
<br /> Lender, upon request, a certified statement of net operating income received from the Property during Trustor's
<br /> previous fiscal year in such form and detail as Lender shall require. "Net operating income"shall mean all cash
<br /> receipts from the Property less all cash expenditures made in connection with the operation of the Property.
<br /> Caption Headings. Caption headings in this Deed of Trust are for convenience purposes only and are not to be
<br /> used to interpret or define the provisions of this Deed of Trust.
<br /> Merger. There shall be no merger of the interest or estate created by this Deed of Trust with any other interest or
<br /> estate in the Property at any time held by or for the benefit of Lender in any capacity,without the written consent
<br /> of Lender.
<br /> Governing Law. This Deed of Trust will be governed by federal law applicable to Lender and,to the extent not
<br /> preempted by federal law,the laws of the State of Nebraska without regard to its conflicts of law provisions. This
<br /> Deed of Trusthas'6eeri'accepted-by Lenderin the State of Nebraska.
<br /> Choice of Venue. If there isa.rtawsuit,Trustor agrees upon Lender's request to submit to the jurisdiction of the
<br /> courts of Hall Cbrifffy;State of Nebraska.
<br /> Joint and Several Liability. All obligations of Borrower and Trustor under this Deed of Trust shall be joint and
<br /> several,and all references to Trustor shall mean each and every Trustor,and all references to Borrower shall mean
<br /> each and every Borrower. This means that each Truster signing below is responsible for all obligations in this Deed
<br /> of Trust.
<br /> No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Deed of Trust unless such
<br /> waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right
<br /> shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Deed of Trust
<br /> shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that
<br /> provision or any other provision of this Deed of Trust. No prior waiver by Lender, nor any course of dealing
<br /> between Lender and Trustor,shall constitute a waiver of any of Lender's rights or of any of Trustor's obligations
<br /> as to any future transactions. Whenever the consent of Lender is required under this Deed of Trust,the granting
<br /> of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where
<br /> such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender.
<br /> Severability. If a court of competent jurisdiction finds any provision of this Deed of Trust to be illegal,invalid,or
<br /> unenforceable as to any person or circumstance,that finding shall not make the offending provision illegal,invalid,
<br /> or unenforceable as to any other person or circumstance. If feasible,the offending provision shall be considered
<br /> modified so that it becomes legal,valid and enforceable. If the offending provision cannot be so modified,it shall
<br /> be considered deleted from this Deed of Trust. Unless otherwise required by law, the illegality, invalidity, or
<br /> unenforceability of any provision of this Deed of Trust shall not affect the legality,validity or enforceability of any
<br /> other provision of this Deed of Trust.
<br /> Successors and Assigns. Subject to any limitations stated in this Deed of Trust on transfer of Trustor's interest,
<br /> this Deed of Trust shall be binding upon and inure to the benefit of the parties,their successors and assigns. If
<br /> ownership of the Property becomes vested in a person other than Trustor,Lender,without notice to Trustor,may
<br /> deal with Trustor's successors with reference to this Deed of Trust and the Indebtedness by way of forbearance or
<br /> extension without releasing Trustor from the obligations of this Deed of Trust or liability under the Indebtedness.
<br /> Time is of the Essence. Time is of the essence in the performance of this Deed of Trust.
<br /> Waive Jury. All parties to this Deed of Trust hereby waive the right to any jury trial in any action,proceeding,or
<br /> counterclaim brought by any party against any other party.
<br /> Waiver of Homestead Exemption. Trustor hereby releases and waives all rights and benefits of the homestead
<br /> exemption laws of the State of Nebraska as to all Indebtedness secured by this Deed of Trust.
<br /> DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Deed of
<br /> Trust. Unless specifically stated to the contrary,all references to dollar amounts shall mean amounts in lawful money
<br /> of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall
<br /> include the singular, as the context may require. Words and terms not otherwise defined in this Deed of Trust shall
<br /> have the meanings attributed to such terms in the Uniform Commercial Code:
<br /> Beneficiary. The word"Beneficiary"means Equitable Bank,and its successors and assigns.
<br /> Borrower. The word"Borrower" means WESTERBY'S INC.and includes all co-signers and co-makers signing the
<br /> Note and all their successors and assigns.
<br /> Deed of Trust. The words "Deed of Trust" mean this Deed of Trust among Trustor, Lender, and Trustee, and
<br /> includes without limitation all assignment and security interest provisions relating to the Personal Property and
<br /> Rents.
<br /> Default. The word"Default"means the Default set forth in this Deed of Trust in the section titled"Default".
<br /> Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statutes,
<br /> regulations and ordinances relating to the protection of human health or the environment, including without
<br /> limitation the Comprehensive Environmental Response,Compensation,and Liability Act of 1980,as amended,42
<br /> U.S.C. Section 9601,at seq. ("CERCLA"),the Superfund Amendments and Reauthorization Act of 1986, Pub.L.
<br /> No.99-499("SARA"),the Hazardous Materials Transportation Act,49 U.S.C.Section 1801,et seq.,the Resource
<br /> Conservation and Recovery Act,42 U.S.C.Section 6901,et seq.,or other applicable state or federal laws,rules,
<br /> or regulations adopted pursuant thereto.
<br /> Event of Default. The words"Event of Default"mean any of the events of default set forth in this Deed of Trust in
<br /> the events of default section of this Deed of Trust.
<br /> Existing Indebtedness. The words"Existing Indebtedness" mean the indebtedness described in the Existing Liens
<br /> provision of this Deed of Trust.
<br /> Guarantor. The word "Guarantor" means any guarantor, surety, or accommodation party of any or all of the
<br /> Indebtedness.
<br /> Guaranty. The word "Guaranty" means the guaranty from Guarantor to Lender, including without limitation a
<br /> guaranty of all or part of the Note.
<br /> Hazardous Substances. The words "Hazardous Substances" mean materials that, because of their quantity,
<br /> concentration or physical,chemical or infectious characteristics,may cause or pose a present or potential hazard
<br /> to human health or the environment when improperly used,treated,stored,disposed of,generated,manufactured,
<br /> transported or otherwise handled. The words"Hazardous Substances"are used in their very broadest sense and
<br /> include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed
<br /> under the Environmental Laws. The term"Hazardous Substances"also includes,without limitation,petroleum and
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