NORTH CAROLINA DEED OF TRUST
SATISFACTION: The debt secured by the within Deed of Trust
together with the note(s) secured thereby has been satisfied in full.
This the _______ day of ______________________, _____
Signed: ____________________________________________
____________________________________________
________________________________________________________________________________
Mail to: ______________________________________________________________________
This instrument was prepared by: _______________________________________________
Brief description for the Index:________________________________________________
________________________________________________________________________________
THIS DEED of TRUST made this 30th day of December, 2004, by and between:
________________________________________________________________________________
GRANTOR TRUSTEE BENEFICIARY
D. S. RUSHING, INC., ASHLEY BLOOM and INTERFUND MORTGAGE CORP.,
a North Carolina MONICA A. SCHREIBER a Florida corporation
corporation (either one of whom
may act)
221 Beracah Road, 7100 West Camino Real Blvd. 7100 West Camino Real Blvd.
Mooresville, NC 28115 Suite 402 Suite 402,
Boca Raton, Florida 33433 Boca Raton, Florida 33433
Enter in appropriate block for each party: name, address, and, if appropriate,
character of entity, e.g. corporation or partnership.
________________________________________________________________________________
The designation Grantor, Trustee, and Beneficiary as used herein shall include
said parties, their heirs, successors, and assigns, and shall include singular,
plural, masculine, feminine or neuter as required by context.
WITNESSETH, That whereas the Grantor is indebted to the Beneficiary in the
principal sum of Four Hundred Twenty-eight Thousand One Hundred Five and 90/100
Dollars ($428,105.90), as evidenced by a Promissory Note of even date herewith,
the terms of which are incorporated herein by reference. The final due date for
payments of said Promissory Note, if not sooner paid, is December 30, 2006.
NOW, THEREFORE, as security for said indebtedness, advancements and
other sums expended by Beneficiary pursuant to this Deed of Trust and costs of
collection (including attorneys fees as provided in the Promissory Note) and
other valuable consideration, the receipt of which is hereby acknowledged, the
Grantor has bargained, sold, given and conveyed and does by these presents
bargain, sell, give, grant and convey to said Trustee, his heirs, or successors,
and assigns, the parcel(s) of land situated in Iredell County, North Carolina,
(the "Premises") and more particularly described as follows:
BEING all of Lots 322, 323, 386, 406, and 407 of THE FARMS subdivision as shown
on map thereof recorded in Map Book 45 at Page 114 in the Office of the Register
of Deeds for Iredell County, North Carolina ("Property").
BEING all of Lots 369 and 370 of THE FARMS subdivision as shown on map thereof
recorded in Map Book 45 at Page 115 in the Office of the Register of Deeds for
Iredell County, North Carolina ("Property").
TO HAVE AND TO HOLD said Premises with all privileges and appurtenances
thereunto belonging, to said Trustee (either one of whom may act without the
joinder of the other), his heirs, successors, and assigns forever, upon the
trusts, terms and conditions, and for the uses hereinafter set forth.
If the Grantor shall pay the Note secured hereby in accordance with its
terms, together with interest thereon, and any renewals or extensions thereof in
whole or in part, all other sums secured hereby and shall comply with all of the
covenants, terms and conditions of this Deed of Trust, then this conveyance
shall be null and void and may be canceled of record at the request and the
expense of the Grantor.
If, however, there shall be any default (a) in the payment of any sums
due under the Note, this Deed of Trust or any other instrument securing the Note
and such default is not cured within five (5) days from the due date, or (b) if
there shall be default in any of the other covenants, terms or conditions of the
Note secured hereby, or any failure or neglect to comply with the covenants,
terms or conditions contained in this Deed of Trust or any other instrument
securing the Note and such default is not cured within fifteen (15) days after
written notice, then and in any of such events, without further notice, it shall
be lawful for and the duty of the Trustee, upon request of the Beneficiary, to
sell the land herein conveyed at public auction for cash, after having first
giving such notice of hearing as to commencement of foreclosure proceedings and
obtained such findings or leave of court as may then be required by law and
giving such notice and advertising the time and place of such sale in such
manner as may then be provided by law, and upon such and any resales and upon
compliance with the law then relating to foreclosure proceedings under power of
sale to convey title to the purchaser in as full and ample manner as the Trustee
is empowered. The Trustee shall be authorized to retain an attorney to represent
him in such proceedings.
The proceeds of the Sale shall after the Trustee retains his
commission, together with reasonable attorneys fees incurred by the Trustee in
such proceedings, be applied to the costs of sale, including, but not limited
to, costs of collection, taxes, assessments, costs of recording, service fees
and incidental expenditures, the amount due on the Note hereby secured and
advancements and other sums expended by the Beneficiary according to the
provisions hereof and otherwise as required by the then existing law relating to
foreclosures. The Trustee's commission shall be five percent (5%) of the gross
proceeds of the sale or the minimum sum of $500.00, whichever is greater, for a
completed foreclosure. In the event foreclosure is commenced, but not completed,
the Grantor shall pay all expenses incurred by Trustee, including reasonable
attorneys fees, and a partial commission computed on five per cent (5%) of the
outstanding indebtedness or the above stated minimum sum, whichever is greater,
in accordance with the following schedule, to-wit: one-fourth (1/4) thereof
before the Trustee issues a notice of hearing on the right to foreclosure;
one-half (1/2) thereof after issuance of said notice, three-fourths (3/4)
thereof after such hearing; and the greater of the full commission or minimum
sum after the initial sale.
And the said Grantor does hereby covenant and agree with the Trustee as
follows:
1. INSURANCE. Grantor shall keep all improvements on said land,
now or hereafter erected, constantly insured for the benefit of the Beneficiary
against loss by fire, windstorm and such other casualties and contingencies, in
such manner and in such companies and for such amounts, not less than that
amount necessary to pay the sum secured by this Deed of Trust, and as may be
satisfactory to the Beneficiary. Grantor shall purchase such insurance, pay all
premiums therefor, and shall deliver to Beneficiary such policies along with
evidence of premium payments as long as the Note secured hereby remains unpaid.
If Grantor fails to purchase such insurance, pay premiums therefor or deliver
said policies along with evidence of payment of premiums thereon, then
Beneficiary, at his option, may purchase such insurance. Such amounts paid by
Beneficiary shall be added to the principal of the Note secured by this Deed of
Trust, and shall be due and payable upon demand of Beneficiary. All proceeds
from any insurance so maintained shall at the option of Beneficiary be applied
to the debt secured hereby and if payable in installments, applied in the
inverse order of maturity of such installments or to the repair or
reconstruction of any improvements located upon the Property.
2. TAXES, ASSESSMENTS, CHARGES. Grantor shall pay all taxes,
assessments and charges as may be lawfully levied against said Premises within
thirty (30) days after the same shall become due. In the event that Grantor
fails to so pay all taxes, assessments and charges as herein required, then
Beneficiary, at his option, may pay the same and the amounts so paid shall be
added to the principal of the Note secured by this Deed of Trust, and shall be
due and payable upon demand of Beneficiary.
3. ASSIGNMENTS OF RENTS AND PROFITS. Grantor assigns to
Beneficiary, in the event of default, all rents and profits from the land and
any improvements thereon, and any contract(s) for the sale of the Premises or
any portion thereof, and authorizes Beneficiary to enter upon and take
possession of such land and improvements, to rent same, at any reasonable rate
of rent determined by Beneficiary, and after deducting from any such rents the
cost of reletting and collection, to apply the remainder to the debt secured
hereby, or to sell the same pursuant to any contract pending.
4. PARTIAL RELEASE. Grantor shall not be entitled to the partial
release of any of the above described property unless a specific provision
providing therefor is included in this Deed of Trust. In the event a partial
release provision is included in this Deed of Trust, Grantor must strictly
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comply with the terms thereof. Notwithstanding anything herein contained,
Grantor shall not be entitled to any release of property unless Grantor is not
in default and is in full compliance with all of the terms and provisions of the
Note, this Deed of Trust, and any other instrument that may be securing said
Note.
5. WASTE. The Grantor covenants that he will keep the Premises
herein conveyed in as good order, repair and condition as they are now,
reasonable wear and tear excepted, and will comply with all governmental
requirements respecting the Premises or their use, and that he will not commit
or permit any waste.
6. CONDEMNATION. In the event that any or all of the Premises
shall be condemned and taken under the power of eminent domain, Grantor shall
give immediate written notice to Beneficiary and Beneficiary shall have the
right to receive and collect all damages awarded by reason of such taking, and
the right to such damages hereby is assigned to Beneficiary who shall have the
discretion to apply the amount so received, or any part thereof, to the
indebtedness due hereunder and if payable in installments, applied in the
inverse order of maturity of such installments, or to any alteration, repair or
restoration of the Premises by Grantor.
7. WARRANTIES. Grantor covenants with Trustee and Beneficiary
that he is seized of the Premises in fee simple, has the right to convey the
same in fee simple, that title is marketable and free and clear of all
encumbrances, and that he will warrant and defend the title against the lawful
claims of all persons whomsoever, except for the exceptions hereinafter stated.
Title to the property hereinabove described is subject to the following
exceptions:
SEE ATTACHED EXHIBIT "A" FOR EXCEPTIONS
8. SUBSTITUTION OF TRUSTEE. Grantor and Trustee covenant and
agree to and with Beneficiary that in case the said Trustee, or any successor
trustee, shall die, become incapable of acting, renounce his trust, or for any
reason the holder of the Note desires to replace said Trustee, then the holder
may appoint, in writing, a trustee to take the place of the Trustee; and upon
the probate and registration of the same, the trustee thus appointed shall
succeed to all rights, powers and duties of the Trustee.
9. SALE OF PREMISES. Grantor agrees that if the Premises or any
part thereof or interest therein is sold, assigned, transferred, conveyed or
otherwise alienated by Grantor, whether voluntarily or involuntarily or by
operation of law [other than: (i) the creation of a lien or other encumbrance
subordinate to this Deed of Trust which does not relate to a transfer of rights
of occupancy in the Premises; (ii) the creation of a purchase money security
interest for household appliances; (iii) a transfer by devise, descent, or
operation of law on the death of a joint tenant or tenant by the entirety; (iv)
the grant of a leasehold interest of three (3) years or less not containing an
option to purchase; (v) a transfer to a relative resulting from the death of a
Grantor; (vi) a transfer where the spouse or children of the Grantor become the
owner of the Premises; (vii) a transfer resulting from a decree of a dissolution
of marriage, legal separation agreement, or from an incidental property
settlement agreement, by which the spouse of the Grantor becomes an owner of the
Premises; (viii) a transfer into an inter vivos trust in which the Grantor is
and remains a beneficiary and which does not relate to a transfer of rights of
occupancy in the Premises], without the prior written consent of Beneficiary,
Beneficiary, at its own option, may declare the Note secured hereby and all
other obligations hereunder to be forthwith due and payable. Any change in the
legal or equitable title of the Premises or in the beneficial ownership of the
Premises, including the sale, conveyance or disposition of a majority interest
in the Grantor if a corporation or partnership, whether or not of record and
whether or not for consideration or by operation of law, or the dissolution or
termination of the corporation by operation of law or voluntarily, shall be
deemed to be the transfer of an interest in the Premises.
10. ADVANCEMENTS. If Grantor shall fail to perform any of the
covenants or obligations contained herein or in any other instrument given as
additional security for the Note secured hereby, the Beneficiary may, but
without obligation, make advances to perform such covenants or obligations, and
all such sums so advanced shall be added to the principal sum, shall bear
interest at the rate provided in the Note secured hereby for sums due after
default and shall be due from Grantor on demand of the Beneficiary. No
advancement or anything contained in this paragraph shall constitute a waiver by
Beneficiary or prevent such failure to perform from constituting an event of
default.
11. INDEMNITY. If any suit or proceeding be brought against the
Trustee or Beneficiary or if any suit or proceeding be brought which may affect
the value or title of the Premises, Grantor shall defend, indemnify and hold
harmless and on demand reimburse Trustee or Beneficiary from any loss, cost,
damage or expense and any sums expended by Trustee or Beneficiary shall bear
interest as provided in the Note secured hereby for sums due after default and
shall be due and payable on demand.
12. WAIVERS. Grantor waives all rights to require marshaling of
assets by the Trustee or Beneficiary. No delay or omission of the Trustee or
Beneficiary in the exercise of any right, power or remedy arising under the Note
or this Deed of Trust shall be deemed a waiver of any default or acquiescence
therein or shall impair or waive the exercise of such right, power or remedy by
Trustee or Beneficiary at any other time.
13. CIVIL ACTION. In the event that the Trustee is named as a
party to any civil action as Trustee in this Deed of Trust, the Trustee shall be
entitled to employ an attorney at law, including himself if he is a licensed
attorney, to represent him in said action and the reasonable attorney's fee of
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the Trustee in such action shall be paid by the Beneficiary and added to the
principal of the Note secured by this Deed of Trust and bear interest at the
rate provided in the Note for sums due after default.
14. PRIOR LIENS. Default under the terms of any instrument secured
by a lien to which this Deed of Trust is subordinate shall constitute default
hereunder.
15. SUBORDINATION. Beneficiary agrees to subordinate (and to
instruct Trustee to join in such subordination, if necessary) the lien of this
Deed of Trust to the lien of construction financing obtained by Grantor to
finance the construction of a residential building and related improvements on
any of the lots that comprise the Premises, subject to Beneficiary's approval of
the amount and terms of such loan and the budget for the construction of the
proposed improvements, which approval shall not be unreasonably withheld,
conditioned or delayed by Beneficiary. Any documentation required for the
subordination of this Deed of Trust shall be prepared by and at the expense of
Grantor and shall be subject to the approval of Beneficiary, not to be
unreasonably withheld, conditioned or delayed.
16. PARTIAL RELEASE PROVISION. Upon Grantor's sale of any
individual lot that comprises a part of the Premises under this Deed of Trust to
a third party purchaser upon completion of the construction of the residential
dwelling and related improvements thereon, Beneficiary agrees to release (and to
instruct Trustee to join in the release, if necessary) the lien of this Deed of
Trust upon the closing of such sale provided that (i) Beneficiary receives
payment from Grantor from the proceeds of such closing equal to the initial
purchase price for such lot as set forth in the Builder Purchase and Sale
Agreement between the Grantor as "Builder" and The Farms, LLC as "Seller" dated
as of December 17, 2004 (which is incorporated herein by reference), relating to
the sale and purchase of the Premises described herein, together with all
accrued interest, additional interest or prepayment premium required to be paid
in connection with any partial prepayment of the Note in accordance with the
terms and provisions of the Note and (ii) Grantor pays to Capitol Development,
Inc. any fee due under the Consulting Agreement dated as of December 30, 2004,
relating to the lot and completed residential dwelling being sold. Any
documentation required for the release of any such lot shall be prepared by and
at the expense of Grantor and shall be subject to the approval of Beneficiary,
not to be unreasonably withheld, conditioned or delayed.
17. TIME OF THE ESSENCE: Time is of the essence with respect to
the obligations of Grantor under this Deed of Trust and the timely performance
thereof by Grantor.
18. EXPENSES. Grantor shall be responsible to pay for any and all
expenses incurred by Beneficiary that relate to the closing and administration
of the loan evidenced by the Note and secured by this Deed of Trust, including,
without limitation: fees and expenses of Beneficiary's attorneys; documentary,
intangible recordation and/or similar taxes on this transaction whether assessed
at closing or arising from time to time; recording and re-recording fees; title
insurance premiums; and out-of-pocket expenses.
IN WITNESS WHEREOF, the Grantor has duly executed the foregoing as of
the day and year first above written.
D. S. RUSHING, INC.,
a North Carolina corporation
By: /s/ DAVID S. RUSHING
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David S. Rushing, President
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________________________________________________________________________________
State of North Carolina - County of IREDELL
I, the undersigned Notary Public of the County and State aforesaid,
certify that DAVID S. RUSHING personally came before me this day and
acknowledged that he is the President of D. S. RUSHING, INC., a North Carolina
corporation, and that by authority duly given and as the act of such entity, he
signed the foregoing instrument in its name on its behalf as the act and deed of
said corporation. Witness my hand and notarial stamp or seal, this 30th day of
December, 2004.
[SEAL] /s/ SELENA J. SAWYER
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Notary Public
My Commission Expires: 3/18/2006
________________________________________________________________________________
The foregoing Certificate(s) of Selena J. Sawyer is/are certified to be correct.
This instrument and this certificate are duly registered at the date and time
and in the Book and Page shown on the first page hereof.
Brenda D. Bell Register of Deeds for Iredell County
By: JOYCE R. BESS Deputy - Register of Deeds
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