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HomeMy WebLinkAbout20081325NUM PGS DOC TAX CKt~ FEES ,50 ~,So `'CK#~Z.~~ CH(i_._._.. ACCT~1 ~..,~ otSfi'r~4s itJE ro$90.Z ~~I~I~~II~'MVI~II~I~Jfl~ll NUM - Pu/_~rnDln oeak~~.. RD. COMP X ~_ 9 =~ ~.~J~o~ COMPARE ~~'~' CADAS - AO ADAMS COUNTY, NE FILED INST. N0.~~~;~5 Date 'S~-a OB Time_~,c~ S~j~IA'tdrtR~ ~}' V REGISTER OF DEEDS State of Nebraska Space Above This Llne For Recording Data DEED OF TRUST (With Future Advance Clause) ^ Construction Security Agreeme~it ^ Master form recorded by ............................. 1. DATE AND I'ARTII;S. The date of this Deed of Trust (Security Instrument) is ... . .............. R3.2?•2QQ~.................. and the parties, their addresses and tax identification numbers, if required, are as follows: TRUSTOR: SCOT D. SMITH AND DIXIE D. SMITH, HUSBAND AND WIFE 920 N. LINCOLN HASTINGS, NE 68901 ^ If checked, refer to the attached Addendum incorporated herein, for additional Trustors, their sigiiatures and acknowledgments. TRUSTEE: BANK OF OONIPHAN PO BOX 270 DONIPHAN, NE 88832 BENEFICIARY: BANK OF DONIPHAN ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF NEBRASKA P 0 BOX 270 DONIPHAN, NE 68832•G270 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 and sells to Trustee, in trust for the benefit of Beneficiary, with power of sale, the following described property: LOT ONE 11 ), GEYERMAN•KOEPKE SUBDIVISION, A REPLAY OF LOT TWENTY•TWO 122-, AND THE NORTH FIFTY IN 50) FEET OF LOT TWENTY•SEVEN (27), ALEXANDER'S SECOND ADDITION TO THE CITY OF HASTINGS, ADAMS COUNTY, NEBRASKA, ACCORDING TO THE RECORDED PLAT THEREOF 2 The property is located in ......................... . . . .. AQAMS............. , ......... , ....... at 9...... , ......... , . , ..................... , ... . (County) HASTINGS brask q@8P ........................................................... . ...................... ..........,.........., Ne a ...,..... .,........ (Address) (City) (ZIP Code) TogeWer 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 hnprovements, structures, fixtures, and replacements that may now, or at any tone in the future, be part of the real estate described above (all referred to as "Property"). 3. MAXIMUM 013LIGATION LIMIT. The total principal amount secured by this Security Instrument at any one tune shall not exceed $ 2b.QAQ•AQ , , , ,,, , , , ,, , , , , , , , , , ,, , , , , , , , , , , , , , , , , , , , ,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 DEIST AND FUTURE ADVANCES. The tenor "Secured Debt" is defined as follows: A. Debt incurred under the terns 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 yore inckule items such as borrowers' names, note amounts, interest rates, maturity elates, etc.) PROMISSORY NOTE IN THE NAME OF SCOT D SMITH AND DIXIE D SMITH AT AN INTEREST RATE OF 8.5°,fi AND ANY AND ALL EXTENSIONS, RENEWALS AND MDOIFICATIDNS. NEBRASKA -DEED OF TRUST SNOT FOR FNMA, FHLMC, FHA OR VA USES ~j~yM ©1994 Bankers Systems, Inc., St. Cloud, MN Form RE-DT-NE 1 /3 012 0 0 2 (page 1 of 41 %y ,, , • '~~ ti~ ,.,,,,, .....,,........,.a ~~ "f;g , ~rw..w.~ ~ 4J...~ ~.----- _ N'1"''11 Zia? B. All future advances, fxom Beneficiary to Trustor or other future obligations oY'T'P6St6~`" to gene ic"f'Ta""""unQe ,~~~~~ .~----~-~proiiu's'sory ~ne~tu,-~ohtract, guaranty, or other evidence of debt executed by Trusteri~x'Ffldvc~f~Beae Security lnstrument whether or not this Security .Instrument is• specifically refere 9:351 ~,,, °' 'tlis'Securhty..Iiistrument,.each Trustor agrees that this Security Instrument will secure all future advances and frl3~:a~! o,~)i~a~gns,„That, axe,given to or incurred,by.azty...oAe.,or~more Trustor, or any one or more rus or an o iers. All ~(f~uthr'e a'dvanccs and"other future obligations are secured by this Security Instrum not yet be advanced. All future advances and other •€uture •obligations are, secured as if made on the date of this Security Instrument. Nothing in this Security Instrument shall constitute a conunitment to make additional or future loans or advances in airy amount. Any such~conlrtlitment n]tist'be ~g7eed to in a separate writing. C. All obligations Trustor owes to Beneficiary, which may later arise, to the extent not prohibited by law, including, but not ]united to, liabilities for overdrafts relating to any deposit account agreement between Trustor and Beneficiary. D. All additional 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 Instrument. This Security Instrument will not secure any other debt if Beneficiary fails to give any required notice of the right of rescission.. 5. PAYML'NTS. Trustor agrees that all payments under the Secured Debt will be paid when due and in accordance with the ternis of the Secured Debt and this Security Instrument. G. WARRANTY OF TITLE. Trustor warrants that Trustor is or will be lawfully seized of the estate conveyed by this Security Instrument and 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 hs unencumbered, except for encumbrances of record. 7. PRIOR SECURITY IN1'E12F,STS. With regard to any other, mortgage, deed of trust, security agreement or other lien document that created a prior Securhty hnterest 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 .any modification or extension of, nor to request any future advances under any note or agreement secured by the ]hen document whthout 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. Beneficiary 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 impair the lien of this Security Instrument. Trustor agrees to assign to Beneficiary, as requested by Beneficiary, any rights, clauns or defenses Trustor may have against parties who supply labor or materials to maintain or improve the Property. 9. DUE ON SALE OR ENCUMBRANCE. Beneficiary may, at its option, declare the entire balance of the Secured Debt to be niunediatcly due and payable upon the creation of, or contract for the creation of, any lien, encumbrance, transfer or sale of the Property. This right is subject to the restrictions unposed by federal law (12 C.F.R. 591), as applicable. Tliis covenant shall run with the Property and shall remain in effect until the Secured Debt is paid in full and this Security Instrument is released. 10. PROPERTY COivvITION, ALTERATIONS AND INSPEC'T'ION. Trustor will keep the Property in good condition and make all repairs that are reasonably necessary. Trustor shall not commit or allow any waste, impairnient, or deterioration of the Property. Trustor will keep the Property free of noxious weeds and grasses. Trustor agrees that the nature of the occupancy and use will not substantially change without Beneficiary's prior written consent. Trustor will not pernit any change in any 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 any loss or damage to the Property. Beneficiary or Beneficiary's agents may, at Beneficiary's option, enter the Property at any reasonable tune 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 will in no way rely on Beneficiary's inspection. 11. AUTHORITY TO 1'ERFOI2M. If Trustor fails to perforni any duty or any of the covenants contained in this Security Instrument, Beneficiary may, without notice, perform or cause them to be performed. Trustor appoints Beneficiary as attorney in fact to sign Trustor's name or pay any amount necessary for performance. Beneficiary's right to perforni for Trustor shall not create an obligation to perform, and Beneficiary's failure to perform will not preclude Beneficiary from exercising any of Beneficiary's other rights under the law or this Securhty 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 in 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 additional 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 agreements for the use and occupancy of the Property, including any extensions, renewals, modifications or replacements (all referred to as Leases); and rents, hssues and pxofits (all referred to as Rents). in the event any item listed as Leases or Rents is deterniined 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 inforniation with respect to these Leases will be provided inunediatcly after they are executed. Trustor may collect, receive, enjoy and use the Rents so long as Trustor is not in default. Upon default, Trustor will receive any Rents in trust for Beneficiary and will not commingle the Rents with any other funds. Trustor agrees that this Security Instrument is immediately effective between Trustor and Beneficiary and effective as to third parties on the recordhng of this Assignment. 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 hf this Securhty Instrument hs on a leasehold. If the Property includes a unlit in a condominium or a planned unlit development, Trustor will pcrfomi all of Trustor's duties under the covenants, by-laws, or reguhations of the condominium or planned unit development. E?r~: ©1994 Bankers Systems, Inc., St. Cloud, MN Form RE-DT-NE 1!30/2002 (page 2 of 41 r 2(~D8~~25 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 under the teens of this Security Instrument or any other document executed for the purpose of creating, securing or guarantying the Secured Debt. A good faith belief by Beneficiary tlmat Beneficiary at any tune is insecure with respect to any person 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 tune schedules for foreclosure actions. Subject to these lhnitations, if any, Beneficiary may accelerate tlme Secured Debt and foreclose this Security Instrument in a matmer 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 hiumtediately due and payable, after giving notice if required by law, upon the occurrence of a default or anythne thereafter. In addition, Beneficiary shall be entitled to all the remedies provided by law, the ternis 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 tune and place as Trustee designates, Trustee shall give notice of sale including the tune, termts and place of sale aad a description of the property to be sold as required by the applicable law in effect at Ute tune 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 nmay 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, cunmlative 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 any 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. 1G. 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 Instrutmment. Trustor will also pay on demand any antount incurred by Beneficiary for insuring, inspecting, preserving or otherwise protecting the Property and Beneficiary's security interest. These expenses will bear interest front the date of the payment until paid in full at the ltigltest interest rate in effect as provided. in time temis of time 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 antount 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 HA7ARDOUS SUBSTANCES. As used in this section, (1) Environmental Law means, without limitation, 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 Itealth, safety, welfare, envirommtent or a hazardous substance; and (2) Hazardous Substance means any toxic, radioactive or hazardous material, waste, pollutant or contaminant which ltas characteristics which render the substance dangerous or potentially dangerous to the public health, safety, welfare or environment. The teen includes, without lunitation, 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. Tltis restriction does not apply to small quantities of Hazardous Substances that are generally recognized to be appropriate for time nominal 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 umnnediately 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 Enviromnental Law. D. Trustor shall inunediately notify Beneficiary in writing as soon as Trustor has reason to believe there is any pending or tltreatcned investigation, claim, or proceeding relating to the release or threatened release of any Hazardous Substance or the violation of any Enviromnental Law. 18. CONllEMNATION. Trustor will give Beneficiary prompt notice of any pending or tltreatcned 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 in any of the above described actions or clanns, Trustor assigns to Beneficiary the proceeds of any award or clauu 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. This assigtunent of proceeds is subject to the terms of any prior mortgage, deed of trust, security agreement or other lien document. 19. INSURANCh. 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 durutg the tern 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 Benefciary's rights in the Property according to the teens 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 nnmediately 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 inuncdiately give to Beneficiary all receipts of paid premiutmms and renewal notices, Upon loss, Trustor shall give hlunediate notice to the insurance carrier and nefictary~:~ene~icixrq' Ttl:~~'t1°i roof of loss if not made inmmediately by Tru$tor. ~:~ ! , ~ • .. ,K.~«` ~ (page 3 of ~Fl {{., ~ ~ ,~ _ -Err=M ©1994 Bankers Systems, Inc., St. Cloud, MN Form R -DTIVE' tY30/2002 ..... ~, .>,..~.~ .W. , ~~Y / ., f ,, 2~U81325 Utiless 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 date 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 and proceeds resulting from damage to the Property before the acquisition shall pass to Beneficiary to the extent of the Secured Debt immediately before the acquisition. 20. ESCROW FOR TAXES AND INSURANCE. Unless otherwise provided in a separate agreement, Trustor will not be required to pay to Beneficiary funds for taxes and insurance in escrow. 21. 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, and preserve Grantor's obligations under this Security Instrument and Beneficiary's lien status on the Property. 22. JOINT AND INDIVIDUAL LIABILITY; CO-SIGNERS; SUCCESSORS AND ASSIGNS BOUND. All duties under this Security Instrument are joint and individual. If Trustor signs this Security Instrument buf 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 Bend"iciary froth 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 and any party to this Security Instrument may extend, modify or make any change in the ternis of this Security Instrument or any evidence of debt without Trustor's consent. Such a change will not release Trustor from the ternis of this Security Instrument. The duties and benefits of this Security Instrument shall bind and benefit the successors and assigns of Trustor and Beneficiary. 23. APPLICABLE LAW; SEVERABILITY; INTERPRETATION. This Security Instrument is governed by the laws of the jurisdiction in 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, attacluments, 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 terms of this Security Instrument. Tune is of the essence in this Security Instrument. 24. SUCCESSOR 'TRUSTEE. Beneficiary, at Beneficiary's option, may from time to time remove Trustee and appoint a successor trustee without any other formality than the designation in writing. The successor trustee, without conveyance of the Property, shall succeed to all the title, power and duties conferred upon Trustee by this Security Instrument and applicable law. 25. NOTICE. Unless otherwise required 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 page 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. 2ti. WAIVERS. Except to the extent prohibited by law, 'Trustor waives all appraisement and homestead exemption rights relating to the Property. 27. 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 improvement on the Property. ^ Fixture Filing. Trustor grants to Beneficiary a security interest in 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 Commercial Code. ^ Riders. The covenants and agreements of each of the riders checked below are incorporated into and supplement and ,, amend the ternis of this Security Instrument. [Check all applicable boxes] ^ Condominium Rider ^ Planned 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 attaclune ~. Trustor also acknowledges receipt of a copy of this Security Instrument on the date stated on page 1. (Signature) SC T D. SMITH (Date) (Signature) PIXIE D. SMITH (Date) ACKNOWLEDGMENT: STATE OF I~~BBASKA ..... . .................... . ......... . COUNTY OF ADAMS ..... , , ......... , ..................... , .... } ss. ~"`11v1doa1~ Tliis instrument was acknowledged before me this ...... , .2ITH .... , .. day of .................. MARCH. 2.DD8.......... by SGOT.Q..SMIT.H;.D1X1E.4,Sl+tIITH..HUS.9A~lA.ANAINIE~ .....................................................• ....,•........,....,....,.. . .. i~ My commission expires:-~''~" ~~~ /~! f ^ . ..1~~~, .~ . BENERAI NOTARY State of •NebtaNf• • • /(f~ ~l!4LC, 1D~,,EBRA J. BARTUNEK (rr y Public) ~BI ~M ©1994 Bankers Systems, i~~., sc. a aE'6~~'~2~t ~+ 2011 (page 4 of 4/ '~~ ~