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HomeMy WebLinkAbout20080753NUM PGS `~_ DOC TAX CK# FEES . ~~~ P}D~~2CK# ~~ ~; CHG ACCT # Cd rJ RET FE CASH R.O.D. CK# RECD RETU P ~ ~' 1 III~VInIIIIIV~lllll~l'~IIII~III~ NUM RD. COMP X ~ ~~~~~ COMRARE ~~ CADAS - AO ~ ADAMS COUNTY, NE FI4~,ED INST.NO.~~""~'S3 Date~~:,4~Time~~ ~~°~' REGISTER OF DEEDS 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 ..................02.27.2008. , , , , , , ... , , , , , .. . and the parties, their addresses and tax identification uttuibers, if required, are as follows: TRUSTOR: LEONARD J. GOTTWALD AND STEPHANIE D. GOTTWALD, HUSBAND AND WIFE 2030 WEST 7TH STREET HASTINGS, NE 68901 ^ If checked; refer to the attached Addendum incorporated herein, for additional Trustors, their signatures and acknowledgments . TRUSTEE: gpNK OF DONIPHAN P. 0. BDX 27D DONIPHAN, NE 88832 BENEFICIARY: BANK DF DONIPHAN ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF NEBRASKA P 0 BOX 270 DONIPHAN, NE 68832.0270 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 perfonnauce under this Security Instrument, Trustor irrevocably grants, conveys and sells to Trustee, iu trust for the benefit of Beneficiary, with power of sale, the following described property: LOT THREE 13), LOVETT SUBDIVISION, ADAMS COUNTY, NEBRASKA, ACCORDING TO THE RECORDED PLAT THEREOF The property is located iu .................................................................... at LOT 3,,LOVETT SUBDIVISION,,ADAMS,000NTY,.. (Comuy) NE. ................. ....................................., ASTt aska ...................... .., Nebr ........ sQ801.. (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 iu the future, be part of the real estate described above (all referred to as "Property"). 3. MAXIMUM OBLIGATION LIMIT. The total principal amount secured by this Security Iustrutnent at any one time shall not exceed $ 3b,QOQ.O,q . . . . . . . ... . . . . .... . .......... . . . ...... . . . .This litnitatiou of amount does not include interest and other fees and charges validly made pursuant to this Security Instrutueut. Also, this limitation does not apply to advances made under the tertus of this Security Iustrututeu[ to protect Beneficiary's security and to perform any of the covenants contained in this Security Instrmuent. 4. SECURED DEBT ANll FUTURE ADVANCES. The tenu "Secured Debt" is defined as follows: A. Debt incurred under the tenus of all promissory note(s), contract(s), guarauty(s) or other evidence of debt described below and all their extensions, renewals, modifications or substitutions. (Wltert referencing the debts below it is suggested tTrat you include iten-s such as borrowers' names, note amounts, interest rates, ntaturiry dates, etc.) PROMISSORY NOTE DATED 2127108 AND MATURING 31112013 NEBRASKA -DEED OF TRUST )NOT FOR FNMA, FHLMC, FHA OR VA USE) 2f'r="' ©1994 Bankers Systems, Inc., St, Cloud, MN Form RE-DT-NE 1/30/2002 (page 41 of ~ t~' ~ C,.. ~~ art E. ~ 'y ` a ` ~ ~ t't.M ,~..a,, "' 20080'753 B. Al future advances froth Beneficiary to Trustor or other future obligations of Trustor to Beneficiary under any ~...;~ rL~I.,J -~--~-~-ww~..~'ptoititssory-rtota,•=contract, guaranty, or other evidence of debt executed by Trustor in favor of Beneficiary after tliis ~,Se~urity,,, Iustrt>•tnent whether or not this Security Instrument is specifically referenced. If Wrote than one person signs this Security Instrutn~nt, each Trustor agrees that tliis Security Instrument will secure all future advances and future obligations ,that are given to or incurred. by any oiie 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 Ltstrutnent. Nothing in this Security Instrument shall constitute a cottuttittnent to make additional or future loans or advances in any atnouttt. Any such cottnnittnettt must be agreed 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 limited 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 Bunts advanced and expenses incurred by Beneficiary under the teens of this Security Ittstrutnent. Tltis Security Ittstrutttettt will not secure any otlter 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 teens of the Secured Debt and this Security Instrarnent. 6. WARRANTY OF TTTLE. Trustor warrants that Trustor is or will be lawfully seized of the estate conveyed by this Security Ltstrmnent 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 is uueucuntbered, except for encumbrances of record. 7. PRIOR SECURITY 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 any 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, encwnbrauces, lease payments, ground rents, utilities, and otlter 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 agai~tst any clanns that would impair the lien of this Security Instrmnent. Trustor agrees to assign to Beneficiary, as requested by Beneficiary, any rights, clanns or defenses. Trustor Wray 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 immediately due and payable upon the creation of, or contract for the creation of, any lieu, encumbrance, transfer or sale of the Property. This right is subject to the restrictions itttposed by federal law (12 C.F.R. 591), as applicable. Tltis 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 CONDITION, ALTERATIONS AND INSPECTION. Trustor will keep the Property iu good condition and make all repairs that are reasonably accessary. Trustor shall not couunit or allow any waste, nnpairuient, 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, clanns, 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 uo way rely on Beneficiary's inspection. 11. AUTHORITY TO.PERFORM. If Trustor fails to perforn any duty or any of the covenants contained in this Security Instrument, Beneficiary may, without notice, perform or cause them to be perforned. Trustor appoints Beneficiary as attorney in fact to sign Trustor's vane or pay any amount necessary for performance. Beneficiary's right to perform for Trustor shall not create an obligation to perfomt, and Beneficiary's failure to perform will not preclude Beneficiary from exercising any of Beneficiary's other rights under the law or this Security Instrwuent. If any construction on the Property is discontinued or not carried on in a reasonable manner, Beneficiary may take all steps accessary 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, iu 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, issues and profits (all referred to as Rents). Iu the event any item listed as Leases or Rents is determined to be personal property, this Assigmnent 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 Assigmnent, and all future Leases and any other iufonnation with respect to these Leases will be provided imm~ediately 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 commniugle the Rents with any other funds. Trustor agrees that this Security Instrumment is inunediately effective between Trustor and Beneficiary and effective as to third parties on the recording of this Assigmnent. As long as this Assigmnent 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 ott leases, licenses and landlords and tenants. 13. LEASEIIOLDS; CONDOMINI[IMS; 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 unit in a condominium or a planned unit development, Trustor will perform all of Trustor's duties under the covenants, by-laws, or regulations of the condominium or planned unit development. ~ (page 2 of 4J ~erLe ©1994 Bankers Systems, Inc., St. Cloud, MN Form RE-DT-NE 1/30/2002 _,.~.~/~~}1L ~~ / t ~~~~~~~~ 14. DEFAULT. Trustor will be iu default if any party obligated on the Secured Debt fails to make payment when due. Trustor will be iu default if a breach occurs under the tents of this Security Iustrutneut or any other document executed for the purpose of creating, securing or guarautyittg the Secured Debt. A good faith belief by Beneficiary that Beneficiary at any tithe is insecure with respect to any person or entity obligated ou the Secured Debt or that the prospect of any payment or the value of the Property is unpaired shall also constitute au event of default. 15. REMEDIES ON DEFAULT. Iu some instances, federal and state law will require Beneficiary to provide Trustor with notice of the right to cure or otlter notices and uiay establish tune schedules for foreclosure actions. Subject to these Iuttitatiotts, if any, Beneficiary ntay accelerate the Secured Debt and foreclose this Security Instnutteut iu 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 immmediately due and payable, after giving notice if required by law, upon the occurrence of a default or anytume thereafter.- In addition, Beneficiary shall be entitled to all the remedies provided by law, the terns of the Secured Debt, this Security Instrument and any related docurmeuts, 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 iu separate parcels at public auction '[o the highest bidder for cash and convey absolute title free attd 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 fume, terms and place of sale and a description of the property to be sold as required by the applicable law iu 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, assessrtteuts and prior eucuuibrauces 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 iu 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 payttteut ou 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 cotmplete cure of any existing default. By not exercising any remedy ou Trustor's default, Betteficiary 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 iu this Security lustrutneut. Trustor will also pay on demand any amount incurred by Beneficiary for insuring, inspecting, preserving or otherwise protecting the Property and Beneficiary's security interest. These expenses will bear interest froth the date of the payment until paid in full at the highest interest rate iu effect as provided itt the terns of the Secured Debt. Trustor agrees to pay all costs and expenses incurred by Beneficiary iu collecting, enforcing or protecting Beneficiary's rights and remedies under this Security Instrutment. This amount uiay include, but is not Invited to, attorneys' fees, court costs, and otlter legal expenses. Tltis Security Iustrwneut shall rernaiu iu effect until released. Trustor agrees to pay for any recordation costs of such release. 17. ENVIRONMENTAL LAWS AND IiAZARDOU5 SUBSTANCES. As used in this section, (1) Euvironutetttal Law means, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, 42 U.S.C. 9601 et seq.), and all otlter federal, state and local laws, regulations,. ordinances, court orders, attorney general opittiotts or interpretive letters concerning the public health, safety, welfare, euvirotumeut or a hazardous substance; and (2) Hazardous Substance means any toxic, radioactive or hazardous material, waste, pollutant or contaminant which has characteristics which reader the substatce dangerous or potentially dangerous to the public health, safety, welfare or enviromneut. The tern includes, WIthOUt IIt111taLloll, any substances defined as "hazardous material," "toxic substances," "hazardous waste" or "hazardous substance" under any Euvirommeutal Law. Trustor represents, warrants and agrees that: A. Except as previously disclosed and acknowledged iu 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 strrall 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 Betteficiary, Trustor and every tenant have been, are, and shall retrain iu full compliance with any applicable Enviromtteutal Law. C. Trustor shall immmediately notify Beneficiary if a release or threatened release of a Hazardous Substance occurs ou, under or about the Property or there is a violation of any Euvirommeutal Law concerning the Property. Iu such an event, Trustor shall take all necessary remedial action itt accordance with any Euvirommeutal Law. D. Trustor shall immediately notify Beneficiary in writing as soon as Trustor has reason to believe there is any pending or threatened investigation, claim, or proceeding relating to the' release or threatened release of any Hazardous Substance or the violation of any Euvirommeutal Law. 18. CONllEMNATIUN. 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 iu Trustor's ttame iu any of the above described. actions or;elaims. Trustor assigns to Beneficiary the proceeds of any award or clans for damages connected with a coudentuation or other taking of all or any part of the Property. Such proceeds shall be considered payments and will be applied as provided iu this Security Iustrtuneut. Tltis assigmmeut of proceeds is subject to the terns of any prior mortgage, deed of trust, security agreement or otlter lien document. 19. INSURANCE. 'Trustor shall keep Property insured against loss by fire, flood, theft and otlter hazards and risks reasonably associated with the Property due to its type and location. This insurance shall be maintained iu the amounts and for the periods that Beneficiary requires. What Leader requires pursuant to the preceding sentence can change during 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 Beneficiary's rights in the Property according to the terns of this Security IllS[CUlllellt. 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 immnediately notify Beneficiary of cancellation or terniuation of the insurance. Beneficiary shall have the right to hold the. policies and renewals. If Beneficiary requires, Trustor shall nmutediately give to Beneficiary all receipts of paid premiums and renewal notices. Upon loss, Trustor shall give inunediate notice to the insurance carrier and Beneficiary. Beneficiary may make proof of loss if not made nnmediately by Trustor. M ,,,,,,,~,,,,,~, 4'ivY s yi104b`~ tai;, 'S1.%`rv.~tl.Y~ ?~ j /~ ~page~ -~~"' ©1994 Bankers Systems, Inc., St, Cloud, MN Form RE-DT-NE 1/30/2002 y ~14~~£5~% ~ ~~! ~ ,/_~-/-'1L .~ o~ y ,, ~ ~; ~: 2008U'753 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 date of the scheduled payment nor change the amount of any payment. Auy 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. UNess 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 tray deem reasonably necessary. Trustor agrees. to sign, deliver, and file any additioltal documents or certifications that Beneficiary may consider necessary to perfect, continue, and preserve Grantor's obligatiolts under this Security Instrmnent and Beneficiary's lien status on the Property. 22. JOINT AND INDIVIDUAL LIABILITY; CO-SIGNERS; SUCCESSORS AND ASSIGNS'BOUND. All duties under tliis 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 iu the Property to secure payment of the Secured Debt and Trustor does not agree to be personally liable ou 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 clahn against Trustor or any parry indebted under the obligation. These rights may include, but are no[ 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 teens of this Security Instrument or any evidence of debt without Trustor's consent. Suclt a cltaltge will trot release Trustor from the teens of this Security Iustrutnent. 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 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 iu this Security Iustrtuneut, attaclmtents, or any agreement related to the Secured Debt that conflicts with applicable law will ltot be effective, unless that law expressly or itnpliedly permits the variations by written agreement. If any section of this Security Instrument cannot be enforced according to its terns, 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 captious and- headings of the sections of this Security Instrument are for convenience only and are not to be used to interpret or define the terns of this Security Iustrutnent. Time 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 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 Instrutment and applicable law. 25. NOTICE. Ultless 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 iu writittg. Notice to one trustor will be deemed to be notice to all trustors. 26, WAIVERS. Except to the extent prohibited by law, Trustor waives all appraisenteut and homestead exetnptiou rights relating to the Property. 27. OTI3ER TERMS. If checked, the following are applicable to this Security Iustrwtteut: ^ Line of Credit. The Secured Debt includes a revolving lice 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 au nnprovement 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 terms of this Security Instrument. [Check all applicable boxes] ^ Condominium Rider ^ Planned Uuit Development Rider ^ Other .................................................. ^ Additional Terms. SIGNATURES: By signing below, Trustor agrees to the terns and covenants contained iu this Security Instrutneut and iu any attachments. Trustor also acknowledges receipt of a copy of this Security Iustrun>lent on the date stated on page 1. .............. .. , ' ...~7..:.~~~.. ~~ o~ (Signature) LEONARD J. G TWALD (Date (Stgnature STEPHANIE D. GOTTWALD (Date ACKNOWLEDGMENT: STATE OF N.E:E3RASKA ..................................... COUNTY OF AOAMS.............................................} ss. ~''~`"'~°~'~ Tltis instrument was ackltowledged before me this ........2ITH ..... day of ................ F.EBRUARY,2008................. by G~.QNARO..I..G.QT7WAlA;.S.T.~P.NANI~A..GA.T.TWAlA,.HU.S9AN0.AN.4 . ................................ ............................. . My conmmission expires: 09.19.2010 ~~ ~~. ~ a (No ary Public) JUDY A. OUKUP e~-~e ©1994 Ba ker s, I .,~ 7/30/2002 (page 4 of 41 ~~