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HomeMy WebLinkAbout20080976NUM PG,S ~ ADAMS COUNTY, NE DOC TAX CK# FILED FEES 0.50 PD ~ ~ ~ CK# ~6 ~a{ 2ooso9~6 INST. N0.__4,~,~,,,~ Q ~ ~ b' CHG ACCT # Date 3-1". ~- oB TImB a.,~ m RET FEE5:5 •SOCASH X R.O.D. CK# ~ I I n ~+hmdk ~; !/_~Qe_ 9~~iTo~~ • RECD t'~1e~n(e -C~-,o;rfer T'lf(e (~J(fllfl i~ l~°' ~ 5~~~~ RETURN Char-Fe,r Ti~(~ RD. COMP ,~:. ~' -~-~Z'-'- (~ REGISTER QF DEEDS ats+,na~ ~. ~8q~( COMPARE CADAS ~ AO r~ State of Nebraska Space Above This Line For Recording Data DEED OF TRUST (With. Future Advance Clause) ^ Construction Security Agreement " ^ Master form recorded by ............................. 1. DATE AND PARTIES. The date of this Deed of Trust (Security Instrument) is ................. 03; 06,-2008. , , , , , , .. , ... , , . , and the parties, their addresses and tax identification numbers, if required, are as follows: TRUSTOR: RICHARD E. KERN and MARGARET A. KERN, Husband and Wite 1307 MARKAY JUNIATA, NE 68955 ^ if checked, refer to the attached Addendum incorporated herein, for additional Trustors, their signatures and acknowledgments. 'fRUS'fEE: Heritage Bank 800 West 3rd Hastings, NE 68901 BENEFICIARY: Heritage Bank Organized and existing under the laws of the state of Nebraska 800 W 3rd Street P.O. Box 349 Hastings, NE 68901 2. CONVEYANCE. For good and valuable consideration, the receipt and sufficiency of which is acknowledged, and to secure the Secured Debt (defined below) and Trustor's performance under this Security Instrument, Trustor irrevocably grants, conveys xnd sells to Trustee, in trust for the benefit of Beneficiary, with power of sale, the following described property: LDT 16, WESTBRDOK VILLAGE 9TH ADDITION, AN ADDITION TO THE CITY OF HASTINGS, ADAMS COUNTY, NEBRASKA .............................. 'The property is located in ..............................AAAMS............................... at 1307. MARKAY. (c~~tty> ............................................................. .....................JUNIATA....................., Nebraska ........68955........ (Address) (City) (ZIP Code) Together with all rights, easements, appurtenances, royalties, mineral rights, oil and gas rights, all water and riparian rights, ditches, and water stock and all existing and future improvements, structures, fixtures, and replacements that may now, or at any time in the future, be part of the real estate described above {all referred to as "Property"). 3. MAXIMUM OBLIGATION LIMTT. The total principal amount secured by this Security Instrument at any one time shall not exceed $ 45,OQ0: 00 . . . . .. . .... . .. . .. . ... . ...... . . . . . . . . . . . . .This limitation of amount does not include interest and other fees and charges validly made pursuant to this Security Instrument. Also, this limitation does not apply to advances made under the teens of this Security Instrument to protect Beneficiary's security and to perform any of the covenants contained in this Security Instrument. 4. SECURED DEBT AND FUTURE ADVANCES. The term "Secured Debt" is defined as follows: A. Debt incurred under the terms of all promissory note(s), contract(s), guaranty(s) or other evidence of debt described below and all their extensions, renewals, modifications or substitutions. (When referencing the debts below it is suggested that you include items such as borrowers' names, note amoamts, interest rates, maturity dates, etc.) NEBRASKA -DEED OF TRUST )NOT FOR FNMA, FHLMC, FHA OR VA USE) tJCIL'~ ©1994 Bankers Systems, Inc., St. Cloud, MN Form RE-DT-NE 1/30/2002 ~~ 4 (p/age 14) { I ; ,; ~oo~o~rrb B. All future advances from Beneficiary to Trustor or other future. obligations of Trustor to Beneficiary under auy promissory note, contract, guaranty, or other evidence of debt executed by Trustor iu favor of Beneficiary after this Security Iustrument whether or not this Security Instrument is specifically referenced. If more than one person signs this Security Iustrument, each Trustor agrees that this Security Instrument will secure all future advances and future obligations that are given to or incurred by any one or more Trustor, or any one or more Trustor and others. All future advances and other future obligations are secured by this Security Instrument even though all or part may not yet be advanced. All future advances and other future obligations are secured as if made on the date of this Security Instrument. Nothing in this Security Instrument shall constitute a commitment to make additional or future loans or advances in any atnount. Any such commitment must be agreed to in a separate writing. C. All obligations Trustor owes to Beueficiary, which may later arise, to the extent not prohibited by law, including, but not limited to, liabilities for overdrafts relating to auy deposit account agreement between Trustor and Beueficiary. D. All additioual sums advanced and expenses incurred by Beneficiary for insuring, preserving or otherwise protecting the Property and its value and any other sums advanced and expenses incurred by Beneficiary under the terms of this Security Iustrument. This Security Instrument will not secure any other debt if Beneficiary fails to give any required notice of the right of rescission. 5. PAYMENTS. Trustor agrees that all payments under the Secured Debt will be paid when due and in accordance with the ternts of the Secured Debt and this Security Instrument. 6. WARRANTY OF TITLE. Trustor warrants that Trustor is or will be lawfully seized of the estate conveyed by this Security Iustrument attd has the right to irrevocably grant, convey, and sell the Property to Trustee, in trust, with power of sale. Trustor also warrants that the Property is unencumbered, except for encumbrances of record. 7. PRIOR SECURTTY INTERESTS. With regard to any other mortgage, deed of trust, security agreement or other lien document that created a prior security interest or encumbrance on the Property, Trustor agrees: A. To make all payments when due and to perform or comply with all covenants. B. To promptly deliver to Beneficiary any notices that Trustor receives from the holder. C. Not to allow auy modification or extension of, nor to request any future advances under any note or agreement secured by the lien document without Beneficiary's prior written consent. 8. CLAIMS AGAINST TITLE. Trustor will pay all taxes, assessments, liens, encumbrances, lease payments, ground rents, utilities, and other charges relating to the Property when due. Beueficiary may require Trustor to provide to Beneficiary copies of all notices that such amounts are due and the receipts evidencing Trustor's payment. Trustor will defend title to the Property against any claims that would unpair the lien of this Security Instrument. Trustor agrees to assign to Beneficiary, as requested by Beueficiary, any rights, claims or defenses Trustor may have against parties who supply labor or materials to maintain or unprove the Property. 9. DUE ON SALE OR ENCUMBRANCE. Beneficiary may, at its option; declare the entire balance of the Secured Debt to be utnuediately due and payable upon the creation of, or contract for the creation of, any lien, encwmbrance, transfer or sale of the Property. This right is subject to the restrictions unposed by federal law (12 C.F.R. 591), as applicable. This covenant shall run with the Property and shall remain in effect until the Secured Debt is paid in full and this Security Instruntcnt is released. • 10. PROPERTY CONDTTION, ALTERATIONS AND INSPECTION. Trustor will keep the Property iu good condition and stake all repairs shat are reasonably necessary. Trustor shall not commit or allow any waste, hnpairnent, or deterioration of the Property. Trustor will keep the Property free of noxious weeds and grasses. Trustor agrees that the nature of We occupancy and use will not substantially change without Beneficiary's prior written consent. Trustor will not permit any change in auy license, restrictive covenant or easement without Beneficiary's prior written consent. Trustor will notify Beneficiary of all demands, proceedings, claims, and actions against Trustor, and of auy loss or damage to the Property. Beneficiary or Beneficiary's agents may, at Beneficiary's option, enter the Property at any reasonable time for the purpose of inspecting the Property. Beneficiary shall give Trustor notice at the time of or before an inspection specifying a reasonable purpose for the inspection. Any inspection of the Property shall be entirely for Beneficiary's benefit and Trustor wilt in ^o way rely on Beneficiary's inspection. 11. AUTHORITY TO PERTORM. If Trustor fails to perform any duty or any of the covenants contained in this Security Instrument, Beneficiary may, without notice, perforn or cause them to be perforned. Trustor appoints Beneficiary as attorney in fact to sign Trustor's name or pay any unount necessary for performance. Beneficiary's right to perform for Trustor shall not create an obligation to perforn, and Beneficiary's failure to perfornt will not preclude Beneficiary from exercising apy of Beneficiary's other rights under the law or this Security Instrument. If any construction on the Property is discontinued or not carried on in a reasonable manner, Beneficiary may take all steps necessary to protect Beneficiary's security interest iu the Property, including completion of the construction. 12. ASSIGNMENT OF LEASES AND RENTS. Trustor irrevocably assigns, grants and conveys, to Trustee, in trust for the benefit of Beneficiary as additioual security all the right, title and interest in the following (all referred to as Property): existing or future leases, subleases, licenses, guaranties and any other written or verbal agxeertients for the use and occupancy of the Property, including any extensions, renewals, modifications or replacements (all referred to as Leases); and rents, issues and profits (all referred to as Rents). In the event any item listed as Leases or Rents is determined to be personal property, this Assignment will also be regarded as a security agreement. Trustor will promptly provide Beneficiary with copies of the Leases and will certify these Leases are true and correct copies. The existing Leases will be provided on execution of the Assignment, and all future Leases and any other information with respect to these Leases will be provided immediately after they are executed. Trustor may collect, receive, enjoy and use the Rents so long as Trustor is uol in defaulC. Upon default, Trustor will receive auy Rents in trust for Beneficiary and will not commingle the Rents with any other funds. '['rustor agrees that this Security Instrument is immediately effective between Trustor and Beneficiary and effective as to third parties on the recording of this Assigmnent. As long as this Assignment is in effect, Trustor warrants and represents that no default exists under the Leases, and the parties subject to•the Leases have not violated any applicable law on leases, licenses and landlords and tenants. 13. LEASEHOLDS; CONDOMINIUMS; PLANNED UNIT DEVELOPMENTS. Trustor agrees to comply with the provisions of any lease if this Security Instrument is .on a leasehold. If the Property includes a~unir, in a',~otidoiniuiuin or a l~tuucd uu>t devil o inept, Trustor P ill erforn all of Trustor s duties under the covenants,' b laws, or re Matrons of the P ' P P Y- g :. -. condorn-nrum or fanned unrt develo ntent. ~ • '~ ~Lrt ~ ©1994 Bankers Systems, Inc., St. Cloud, MN Form RE-DT-NE 1/30/2002 ~~ T (/per ,.AJ`,.~I• .Y ..... ~ ~f~J it ~r 1. s ` , i -~ F 1' ~~ 200809'76 14. DEFAULT. Trustor will be in default if any party obligated -on the Secured Debt fails to make payment when due. Trustor will be in default if a breach occurs<unddr'the"terms of'th-s Security Instrument or any other document executed for the purpose of creating, securing or ,guarantying the Secured Debt: A good faith belief by Beneficiary that Beneficiary at any tune is insecure with respecu to any `persoit'or' entity obligated , on the Secured Debt or that the prospect of any payment or the value of the Property is impaired shall also constitute an event of default. 15. REMEDIES ON DEFAULT. In some instances, federal and state law will require Beneficiary to provide Trustor with notice of the right to cure or other notices and may establish time schedules for foreclosure actions. Subject to these limitations, if any, Beneficiary may accelerate the Secured Debt and foreclose this Security Instrument in a manner provided by law if Trustor is in default. At the option of Beneficiary, all or any part of the agreed fees and charges, accrued interest and principal shall become uiunediately due and ,payable, after giving notice if required by law, upon the occurrence of a default or anytime thereafter. In addition, Beneficiary shall be entitled to all the remedies provided by law, the terms of the Secured Debt, this Security Instrument and any related documents, including without limitation, the power to sell the Property. If there is a default, Trustee shall, in addition to any, other permitted remedy, at the request of the Beneficiary, advertise and sell the Property as a whole or in separate parcels at public auction to the highest bidder for cash and convey absolute title free and clear of all right, title and interest of Trustor at such time and place as Trustee designates. Trustee shall give notice of sale including the time, terms and place of sale and a description of the property to be sold as required by the applicable law in effect at the time of the proposed sale. Upon sale of the Property and to the extent not prohibited by law, Trustee shall make and deliver a deed to the Property sold which conveys absolute title to the purchaser, and after first paying all fees, charges and costs, shall pay to Beneficiary all moneys advanced for repairs, taxes, insurance, liens, assessments and prior encumbrances and interest thereon, and the principal and interest on the Secured Debt, paying the surplus, if any, to Trustor. Beneficiary may purchase the Property. The recitals in any deed of conveyance shall be prima facie evidence of the facts set forth therein. All remedies are distinct, cumulative and not exclusive, and the Beneficiary is entitled to all remedies provided at law or equity, whether or not expressly set forth. The acceptance by Beneficiary of any sum in payment or partial payment on the Secured Debt after the balance is due or is accelerated or after foreclosure proceedings are filed shall not constitute a waiver of Beneficiary's right to require complete cure of any existing default. By not exercising nay remedy on Trustor's default, Beneficiary does not waive Beneficiary's right to later consider the event a default if it continues or happens again. 16. EXPENSES; ADVANCES ON COVENANTS; ATTORNEYS' FEES; COLLECTION COSTS. Except when prohibited by law, Trustor agrees to pay all of Beneficiary's expenses if Trustor breaches any covenant in this Security Instrument. Trustor will also pay on demand nay amount incurred by Beneficiary for insuring, inspecting, preserving or otherwise protecting the Property and Beneficiary's security interest. These expenses will bear interest from the date of the payment until paid in full at the highest interest rate in effect as provided in the terms of the Secured Debt. Trustor agrees to pay all costs and expenses incurred by Beneficiary in collecting, enforcing or protecting Beneficiary's rights and remedies under this Security Instrument. This amount may include, but is not limited to, attorneys' fees, court costs, and other legal expenses. This Security Instrument shall remain in effect until released. Trustor agrees to pay for any recordation costs of such release. 17. ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES. As used in this section, (1) Enviromnental Law means, without lunitation, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, 42 U.S.C. 9601 et seq.), and all other federal, state and local Laws, regulations, ordinances, court orders, attorney general opinions or interpretive letters concerning the public health, safety, welfare, environment or a hazardous substance; and (2) hazardous Substance menus any toxic, radioactive or hazardous material, waste, pollutant or contaminant which has characteristics which render the substance dangerous or potentially dangerous to the public health, safety, welfare or enviromnent. The teen includes, without limitation, any substances defined as "hazardous material," "toxic substances," "hazardous waste" or "hazardous substance" under any Environmental Law. Trustor represents, warrants and agrees that: A. Except as previously disclosed and acknowledged in writing to Beneficiary, no Hazardous Substance is or will be located, stored or released on or in the Property. This restriction does not apply to small quantities of Hazardous Substances that are generally recognized to be appropriate for the normal use and maintenance of the Property. B. Except as previously disclosed and acknowledged in writing to Beneficiary, Trustor and every tenant have been, are, and shall remain in full compliance with any applicable Environmental Law. C. Trustor shall ummediately notify Beneficiary if a release or threatened release of a Hazardous Substance occurs on, under or about the Property or there is a violation of any Environmental Law concerning the Property. In such an event, Trustor shall take all necessary remedial action in accordance with any Environmental Law. D.'1'rustor shall inunediately notify Beneficiary in writing as soon as Trustor has reason to believe there is any pending or Chreatened investigation, claim, or proceeding relating to the release or threatened release of any Hazardous Substance or the violation of any Enviromnental Law. 18. CONDEMNATION. Trustor will give Beneficiary prompt notice of any pending or threatened action, by private or public entities to purchase or take any or all of the Property through condemnation, eminent domain, or any other means. Trustor authorizes Beneficiary to intervene in Trustor's name i^ any of the above described .actions or,elauns. Trustor assigns to Beneficiary the proceeds of any award or claim for damages connected with a condemnation or other taking of all or any part of the Property. Such proceeds shall be considered payments and will be applied as provided in this Security Instrument. 'Phis assigmnent of proceeds is subject to the terms of any prior mortgage, deed of trust, security agreement or other lien document. 19. INSURANCE. Trustor shall keep Property insured against loss by fire, flood, theft and other hazards and risks reasonably associated with the Property due to its type and location. This insurance shall be maintained in the amounts and for the periods that Beneficiary requires. What Lender requires pursuant to the preceding sentence can change during the term of the loan. The insurance carrier providing the insurance shall be chosen by Trustor subject to Beneficiary's approval, which shall not be unreasonably withheld. If Trustor fails to maintain the coverage described above, Beneficiary may, at Beneficiary's option, obtain coverage to protect Beneficiary's rights in the Property according to the terms of this Security Instrument. All insurance policies and renewals shall be acceptable to Beneficiary and shall include a standard "mortgage clause" and, where applicable, "loss payee clause. " Trustor shall immediately notify Beneficiary of cancellation or termination of the insurance. Beneficiary shall have the right to hold the policies and renewals. If Beneficiary requires, Trustor shall ummediately give to Beneficiary all receipts of paid premiums and renewal notices. Upon loss, Trustor shall give iuunediate notice to the insurance carrier and Beneficiary. Beneficiary may make proof of Loss if not made immediately by Trustor. (pa e of Fj~~Lr~ M ©1994 Bankers Systems, Inc., St. Cloud, MN Form RE-DT-NE 1/30/2002 3.~ ~ . , ~oooootra 20. 21 22. 23. 24. 25. 26. 27. Unless otherwise agreed in writing, all insurance proceeds shall be applied to the restoration or repair of the Property or to the Secured Debt, whether or not then due, at Beneficiary's option. Any application of proceeds to principal shall not extend or postpone the due dace of the scheduled payment nor change the amount of any payment. Any excess will be paid to the Grantor. If the Property is acquired by Beneficiary, Trustor's right to any insurance policies aad proceeds resulting from damage to the Property before the acquisition shall pass to Beneficiary to the extent of the Secured Debt irmnediately before the acyuisition. ESCROW FOR TAXES AND INSURANCE. Unless otherwise provided in a separate agreement, Trustor will not be reyuired to pay to Beneficiary funds for taxes and insurance in escrow. FINANCIAL REPORTS AND ADDITIONAL DOCUMENTS. Trustor will provide to Beneficiary upon request, any financial statement or information Beneficiary may deem reasonably necessary. Trustor agrees to sign, deliver, and file any additional documents or certifications that Beneficiary may consider necessary to perfect, continue, aad preserve Grantor's obligations under this Security Instrument and Beneficiary's lien status on the Property. JOINT AND INDIVIDUAL LIABILTTY; CO-SIGNERS; SUCCESSORS AND ASSIGNS BOUND. All duties under this Security Instrument are joint and individual. If Trustor signs this Security Instrument. but does not sign an evidence of debt, Trustor does so only to mortgage Trustor's interest in the Property to secure payment of the Secured Debt and Trustor does not agree to be personally liable on the Secured Debt. If this Security Instrument secures a guaranty between Beneficiary and Trustor, Trustor agrees to waive any rights that may prevent Beneficiary from bringing any action or claim against Trustor or any party indebted under the obligation. These rights may include, but are not limited to, any anti-deficiency or one-action laws. Trustor agrees that Beneficiary aad any party to this Security .Instrument may extend, modify or make any change in the terms of this Security Instrument or any evidence of debt without Trustor's consent. Such a change will not release Trustor from the terms of this Security Instrument. The duties and benefits of this Security lnstrument shall bind and benefit the successors and assigns of Trustor and Beneficiary. APPLICABLE LAW; SEVERABILITY; INTERPRETATION. This Security Instrument is governed by the laws of the jurisdiction iu which Beneficiary is located, except to the extent otherwise required by the laws of the jurisdiction where the Property is located. This Security Instrument is complete and fully integrated. This Security Instrument may not be amended or modified by oral agreement. Any section in this Security Instrument, attachments, or any agreement related to the Secured Debt that conflicts with applicable law will not be effective, unless that law expressly or impliedly permits the variations by written agreement. if any section of this Security Instrument cannot be enforced according to its ternis, that section will be severed and will not affect the enforceability of the remainder of this Security Instrument. Whenever used, the singular shall include the plural and the plural the singular. The captions and headings of the sections of this Security Instrument are for convenience only and are not to be used to interpret or define the teens of this Security Instrument. Time is of the essence in this Security Instrument. SUCCESSOR TRUSTEE. Beneficiary, at Beneficiary's option, may from time to tune remove Trustee and appoint a successor trustee without any other formality than the designation iu writing. The successor trustee, without conveyance of the Property, shall succeed to all the title, power and duties conferred upon Trustee by this Security lnstrument and applicable law. NOTICE. LJuless otherwise reyuired by law, any notice shall be given by delivering it or by mailing it by first class mail to the appropriate party's address on peg:: 1 of this Security Instrument, or to any other address designated in writing. Notice to one trustor will be deemed to be notice to all trustors. WAIVERS. Lxcept to the extent prohibited by law, Trustor waives all appraisement and homestead exemption rights relating to the Properly. OTHER TERMS. If checked, the following are applicable to this Security Instrument: ^ Line of Credit. The Secured Debt includes a revolving line of credit provision. Although the Secured Debt may be reduced to a zero balance, this Security Instrument will remain in effect until released. ^ Construction Loan. This Security Instrument secures an obligation incurred for the construction of an hnprovement on the Property. ^ Fixture Filing. Trustor grants to Beneficiary a security interest iu all goods that Grantor owns now or in the future and that are or will become fixtures related to the Property. This Security Instrument suffices as a financing statement and any carbon, photographic or other reproduction may be filed of record for purposes of Article 9 of the Uniform Conunercial Code. ^ Riders. The covenants and agreements of each of the riders checked below are incorporated into and supplement and amend the teens of this Security Instrument. [Check all applicable boxes] ^ Coudominiurn Rider ^ Pla.nned Unit Development Rider ^ Other .................................................. ^ Additional Terms. SIGNATURES: By signing below, Trustor agrees to the teens and covenants contained in this Security Instrument and in any attachrneats. 'Trustor also acknowledges receipt of a copy of this Security Instruzrrent on the date stated on page I: (Sip}taturc) RICHARD E. KEHN (Date) (Si atur RGARET A. KERN (Date) ACKNOWLEDGMENT: STATL'' OF Nebraska ...................................... COUNTY OF ADAMS............................................} ss. ct"d'"'d°'~~ 'This instrument was acknowledged before me this .........6th. ...... day of .................March,.20A.8.................. by RI.GHARP.I;..KE.HN;.MARGARE.TA.KEHN.Husba)Id.aod.VU~te .......... .....,................ .................................. . My couunission expi es: GfNERAL NOTARY-State of Nebraska 1~~- DANIEL H. ANDERSON.. ~-°~ My Comm. Exp. Oct. 5, 20t1 (Notary Public) ~g~ "' CU 1994 Bankers Systems, Inc., St. Cloud, MN Form RE-DT-NE 1/30/2002 (page 4 Of 4f "t'~ 4'