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HomeMy WebLinkAbout952747Deed in Lieu of Foreclosure Agreement THIS DEED IN LIEU OF FORECLOSURE AGREEMENT is made as of the 23 day of jA 2010 (this "Agreement by, between, and among Kay M. Burton and Aneta R. Burton, husband and wife, with a mailing address of 278 County Road 130 Grover, Wyoming 83122 "Borrower and Hilda A. Titensor, Trustee of the Von S. Titensor Revocable Trust, dated the 12th day of November, 1986 with a mailing address of P.O. Box 773 Afton, WY 83110 "Lender WITNESSETH: A. Borrower owns fee simple title to the real estate and the improvements thereon located within the Town of Afton, and legally described as: Lot 3 contained within the "BURTON TWINHOME ADDITION TO THE TOWN OF AFTON IN THE N1 /2 LOT 1 BLOCK 5 ORIGINAL TOWNSITE OF AFTON WITHIN THE SW1 /4NW1 /4 SECTION 3o T32N Rii8W LINCOLN COUNTY, WYOMING" as recorded in the official records in the Lincoln County Clerk in and for the County of Lincoln, State of Wyoming with Instrument No. 945874. B. Lender made a loan to Borrower in the amount of One Hundred and Forty Thousand and oo /oo Dollars ($140,000.00) "Loan The Loan is secured by, among other things, a certain Mortgage Agreement dated January 22, 2009 made by Borrower, as mortgagor, in favor of Lender, as mortgagee, recorded in the real property records of Lincoln County, Wyoming as instrument number 944905. C Borrower is in default under the Loan Documents in that payments have not been made since July of 2009 "Borrower's Default The Loan has been accelerated and the entire principal amount of Loan together with all accrued interest thereon is now due and owing. D. In order to avoid the financial hardship and damage to reputation that would result from the Borrower's Default, Borrower has requested that the parties resolve Borrower's Default by Borrower's conveyance of the real estate legally described as: Lot 3 contained within the `BURTON TWINHOME ADDITION TO THE TOWN OF AFTON IN THE N1 /2 LOT 1 BLOCK 5 ORIGINAL TOWNSITE OF AFTON WITHIN THE SW1 /4NW1/4 SECTION 30 T32N R1u8W LINCOLN COUNTY, WYOMING" as recorded in the official records in the Lincoln County Clerk in and for the County of Lincoln, State of Wyoming with Instrument No. 945874. Deed In Lieu of Foreclosure Agreement Page 1 of to 0 N 11%.00 Z IC) a w 4t o z z 5 4 w o Y rw O 0503 to Lender, or to a person or other entity designated by Lender "Buyer in lieu of foreclosure. E. The fair market value of the "Property" (as hereinafter defined) does not exceed the total outstanding unpaid principal of, interest accrued and unpaid on, and other outstanding indebtedness due and owing on the property. F. Lender wishes to accept the conveyance of the Property pursuant to this Agreement to avoid the necessity of litigation, foreclosure, the delays associated therewith, and to avoid the delays associated with Borrower's statutory redemption rights, if any, with respect to the Property, and Lender acknowledges that the provisions of this Agreement directly benefit Lender in this regard; and NOW, THEREFORE, for and in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower, and Lender do hereby agree as follows: ARTICLE I INCORPORATION /PROPERTY TRANSFERRED IN LIEU OF FORECLOSURE 1.01 Incorporation. The recitals to this Agreement are fully incorporated herein by this reference thereto with the same force and effect as though restated herein. 1.02 Transfer of Property. Subject to the terms, provisions, conditions, covenants, and agreements herein contained, Borrower agrees to sell, grant, transfer, assign, and convey to Lender (or Buyer) and Lender agrees to acquire, or cause Buyer to acquire, from Borrower absolutely and free of any right of redemption or other right or interest of Borrower or anyone claiming by, through, or under Borrower, the following real and personal property (collectively, the "Property (a) good, valid, indefeasible, and marketable fee simple title to the land "Land legally described on Exhibit A attached hereto, all buildings, fixtures, and other improvements situated on the Land (all said buildings and other improvements hereinafter called the "Improvements all of Borrower's right, title, and interest in and to and all easements, rights, tenements, and appurtenances thereunto belonging or appertaining to the Land and Improvements, and all of Borrower right, title, and interest in and to any and all streets, alleys, or public ways adjacent thereto, before or after vacation thereof "Real Estate Deed In Lieu of Foreclosure Agreement Page 2 of to ARTICLE III TITLE Deed In Lieu of Foreclosure Agreement Page 3 of io °O_Y::SO4 (b) all of Borrower's right, title, and interest as lessor or lessee in all leases, licenses, and other agreements to occupy all or any part of the Real Estate together with all rents and other sums due, accrued or to become due under each such lease, license, and agreement, all rents that are received and allocable to periods following the "Closing Date" (as hereinafter defined) and all guarantees by third parties of the tenants' obligations under said leases, and all lease security and other deposits, if any (together, the "Leases (c) all right, title, and interest of Borrower in and to all plans and specifications relating to Improvements (the "Plans and Specifications and all unexpired claims, warranties, and guarantees, if any, received in connection with the construction or equipping of the Real Estate, if and to the extent assignable (all warranties and guarantees pursuant to which any affiliate of Borrower or its partners is an obligor, and all claims against any affiliate of Borrower or its partners concerning the design and construction of the Real Property shall be deemed assignable, and Borrower shall cause the applicable obligors to consent to such Generally describe the consideration (e.g., "Lender's covenant not to sue Borrower or exercise foreclosure remedies otherwise available to Lender (d) all licenses, permits, and certificates of occupancy. (e) all attachments to the real property. ARTICLE II CONSIDERATION 2.01 Covenant Not to Sue. In consideration for the transfer by Borrower of the Property to Lender (or, at Lender's option, Buyer), and subject to the terms, provisions, and conditions herein contained, at the "Closing" (as hereinafter defined), Lender agrees not to sue Borrower for a deficiency between the amount owed and the value of the real property. 3.01 Loan Title Policy. As an additional condition to closing, Lender shall receive at Closing: CO 805 (a) a date -down endorsement showing fee simple title in Buyer, and insuring the Mortgage as a second priority encumbrance on the Real Property, subject only to the Permitted Exceptions. 3.02 Borrower Cooperation. Borrower shall cooperate with Lender to permit Lender, or, as applicable, Buyer, to obtain the Title Policy and the Loan Policy Endorsements. ARTICLE W CLOSING 4.01 Closing. Provided all terms, provisions, and conditions contained in this Agreement to be satisfied on or before Closing have been timely satisfied so as to provide for the closing of the transaction contemplated hereby, including without limitation, the vesting in Lender or Buyer of good, valid, indefeasible, and marketable fee simple title to the Real Property, subject only to the Permitted Exceptions, closing of the transaction contemplated hereby "Closing shall take place at the time this document and the Deed are executed. 4.02 Transfer Documents. The following Property transfer documentation shall be duly authorized, properly executed, acknowledged (if requested), and delivered to Lender: (a) Estoppel Affidavits (b) Warranty Deed 4.03 Other Deliveries. The following deliveries, showings, and occurrences shall have been delivered or shall have occurred: (a) Possession. Borrower shall deliver possession of the Real Property to Lender. (b) Keys to Premises. Borrower shall deliver to Lender or Lender's designee, keys to the premises. (c) Covenant Not to Sue Borrower. Lender shall deliver the Covenant Not to Sue to Borrower. 4.04 Expenses of Closing. The Lender shall pay all expenses at closing. ARTICLE V COVENANTS 5.01 Cooperation. Commencing on the date of this Agreement, Borrower will reasonably cooperate, upon Lender's request, with Lender and Buyer, including, without Deed In Lieu of Foreclosure Agreement Page 4 of to limitation, any management company designated by Lender to facilitate an orderly transfer of the ownership and management of the Property. 5.02 Rent Collections. Borrower agrees that in the event that Borrower or any affiliate of Borrower receives any rental payment or other payment from any tenant or other occupant or user of the Property following Closing, Borrower will deliver to Lender or Lender's designee, with proper endorsements, such funds not later than two (2) business days following receipt of such funds. ARTICLE VI REPRESENTATIONS AND WARRANTIES 6.oi Representations and Warranties of Lender. Lender represents and warrants to Borrower as follows: (a) Lender is an organized and existing corporation in good standing under the laws of the State of its incorporation and if such State of Wyoming. (b) Lender has the right, power, and authority to execute this Agreement and to perform its obligations under this Agreement. The execution and delivery of this Agreement by Lender and the performance by Lender under this Agreement has been authorized by all necessary corporate action of Lender. 6.02 Representations and Warranties of Borrower. Borrower represents and warrants to Lender as follows: (a) Authority. Borrower has the capacity, right, power, and authority to execute this Agreement and to perform their respective obligations hereunder and to consummate the transaction described herein contemplated by this Agreement including the execution and delivery of all documentation required by this Agreement. The execution of this Agreement has been authorized by all necessary partnership or corporate authorizations of Borrower. The execution, delivery, and performance of this Agreement by Borrower does not breach, conflict with, or contravene: (i) Borrower's partnership agreement or certificate; (ii) any agreement, instrument, document, or indenture to which Borrower is a party or by which they or the Property is bound; (iii) any applicable law; or (iv) any judgment, writ, or order directed to Borrower or by which Borrower may be bound. (b) Bankruptcy. Borrower has not filed a petition in any case, action, or proceeding under the Bankruptcy Code or any similar state law; no petition in any case, Deed In Lieu of Foreclosure Agreement Page 5 of io r'h action, or proceeding under the Bankruptcy Code or any similar state law has been filed against Borrower. (c) Absence of Litigation. Borrower has not received any written notice of any, nor is there any, pending or, to the best of Borrower's knowledge any threatened, litigation or administrative proceeding involving in any manner the Real Property or the ownership, leasing, operation, management, use, or maintenance thereof or this transaction. (d) Arm's- Length Transaction. Borrower has requested conveyance of title to the Property in lieu of the exercise of Lender's remedies pursuant to the Loan Documents and throughout the negotiation, preparation, and execution of this Agreement has been, and may through the Closing be represented by competent legal counsel of their own choosing. This Agreement was entered into out of the free will of Borrower pursuant to arm's length negotiations and Borrower believes this Agreement is fair. Lender has not taken advantage of Borrower by threats, intimidation, overreaching, unconscionable conduct, or otherwise and Borrower is proceeding in this transaction as volunteers in what they perceive to be their own best interest. 6.03 Indemnity. Borrower agrees to defend, indemnify, and hold Lender, Buyer, and their respective partners, successors, assigns, members, officers, participants, shareholders, directors, and personal representatives (collectively, the "Lender Connected Parties harmless from and against any losses, damages, costs (including, without limitation, attorneys' fees, court costs, and costs of appeal), expenses, judgments, liens, decrees, fines, penalties, liabilities, claims, actions, suits, and causes of action arising, directly or indirectly, from (a) any breach by Borrower of warranty or representation contained in this Agreement or in the documents executed and delivered by Borrower pursuant to this Agreement (with this Agreement, sometimes collectively referred to as the "Borrower Documents (b) any breach, default, or violation by Borrower of any covenant, agreement, or provision of the Borrower Documents; and (c) any claims or liabilities pertaining to the Property arising prior to the Closing [other than claims or liabilities arising under the Loan Documents [which for purposes of this Section 6.03, does not include the Environmental Indemnification Agreement]. Deed In Lieu of Foreclosure Agreement Page 6ofio ARTICLE VII NO OBLIGATION OF LENDER TO THIRD PARTIES 7.01 No Third -Party Beneficiary. Borrower acknowledges and agrees that the transfer to Lender or Buyer of title to the Real Property pursuant to the terms of this Agreement shall not create any obligations on the part of Lender to third parties that have claims of any kind whatsoever against Borrower with respect to the Property, and Lender does not assume or agree to discharge any liabilities pertaining to the Property except as otherwise expressly provided in this Agreement. ARTICLE VIII ABSOLUTE CONVEYANCE ARTICLE IX NOTICES t: 0 k.p608 8.01 Conveyance. The conveyance of the Property to Lender or Buyer according to the terms of this Agreement is an absolute conveyance of all of its right, title, and interest in and to the Property in fact as well as form and was not and is not now intended as a mortgage, trust conveyance, deed of trust, or security instrument of any kind, and that the consideration for such conveyance is exactly as recited herein and Borrower has no further interest (including rights of redemption) or claims in and to the Property or to the rents, proceeds, and profits that may be derived thereof, of any kind whatsoever. 9.01 Notice. Any notice pursuant to this Agreement shall be given in writing by (a) personal delivery, or (b) reputable overnight delivery service with proof of delivery, or (c) United States Mail, postage prepaid, registered or certified mail, return receipt requested, or (d) legible facsimile transmission sent to the intended addressee at the address set forth below, or to such other address or to the attention of such other person as the addressee shall have designated by written notice sent in accordance herewith, and shall be deemed to have been given either at the time of personal delivery, or, in the case of expedited delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein, or, in the case of facsimile transmission, as of the date of the facsimile transmission provided that an original of such facsimile is also sent to the intended addressee by means described in clauses (a), (b), or (c) above. Deed In Lieu of Foreclosure Agreement Page 7 of to Unless changed in accordance with the preceding sentence, the addresses for notices given pursuant to this Agreement shall be as follows: To Borrower: To Lender: Kay M. Burton Aneta R. Burton 278 County Road 130 Grover, WY 83122 Hilda A. Titensor Trustee of the Von S. Titensor Revocable Trust Dated the 12th day of November, 1986 P.O. Box 773 Afton, WY 83110 All notices shall be deemed effectively given on the date that such notice is received or refused. ARTICLE X MISCELLANEOUS 10.01 Entire Agreement. This Agreement, and the exhibits attached hereto, and all other instruments and documents executed and delivered at Closing by either party hereto, embody the entire agreement between the parties in connection with the transaction contemplated hereby and there are no oral or parol agreements, representations, or inducements existing between the parties relating to the transaction contemplated hereby that are not expressly set forth herein and covered hereby. This Agreement may not be modified except in writing signed by all of the parties hereto. 10.02 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, Buyer and the respective heirs, administrators, executors, personal representatives, successors, and assigns of the parties hereto and Buyer. 10.03 Waivers. No written waiver by any party at any time of any breach of any provision of this Agreement shall be deemed a waiver of a breach of any other provision herein or a consent to any subsequent breach of the same or any other provision. If any action by any party shall require the consent or approval of another party, such consent or approval of such action on any one occasion shall not be deemed a consent to or approval of such action on any subsequent occasion or a consent to or approval of any other action on the same or any subsequent occasion. Deed In Lieu of Foreclosure Agreement Page 8 of to 10.04 Captions. The captions, section numbers, and article numbers appearing in this Agreement are inserted only as a matter of convenience and do not define, limit, construe, or describe the scope or intent of such paragraphs or articles of this Agreement nor in any way affect this Agreement. 10.05 Time is of Essence; Counterparts; Governing Law. All parties hereto agree that time is of the essence in this transaction and that this Agreement may be executed in counterparts and shall be governed by and interpreted in accordance with the laws of the State of Wyoming. 10.06 Appointment of Designee. Lender does hereby reserve the right to appoint Buyer to accept title to the Property at the time of the Closing. 10.07 Brokers. Lender and Borrower represent and warrant to the other that it has had no direct dealings with any real estate brokers, salesmen, agents, finders, or consultants in connection with the conveyance of the Property to Lender. 10.08 Lender's Liability. In no event shall Lender be personally or individually liable for any obligation set forth in this Agreement. Except to the extent expressly provided in the Borrower Documents, neither Buyer nor Lender is assuming any obligations or liabilities of Borrower. 10.09 Value. Borrower hereby confirms to Lender that this value of the Property does not exceed the indebtedness on the real property. 10.10 Survival. The terms and provisions of this Agreement shall survive the Closing and delivery of the deed and other documents to be delivered to Lender pursuant to this Agreement. IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereto have executed this Agreement as of the day and year first above written. BORROWER: r0 KAY M. BURTON ANETA R. BURTON Deed In Lieu of Foreclosure Agreement Page 9 of 10 STATE OF WYOMING ss. COUNTY OF LINCOLN On this 2 '2, day of Ma rc1 2009, before me a Notary Public in and for said State, personally appeared Kay M. Burton and Aneta R. Burton known or identified to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that they executed the same. My Comm WITNESS my hand and official seal. 4 1114.R CONNIE JONES NOTARY PUBLIC County of Lincoln My C. mission Ex.; e State of Wyoming x-31 -13 STATE OF WYOMING COUNTY OF LINCOLN SS. The foregoing instrument was executed by Hal Titensor by Power of Attorney for Hilda A. Titensor Trustee of the Von S. Titensor Revocable Trust, dated the 12th day of November, 1986, that he personally appeared before me and was dually sworn and upon oath represented that he has Power of Attorney for Hilda Titensor the trustee of the Trust that the foregoing Partial Release of Real Estate Mortgage was executed on behalf of the Trust and that he had authority under the ter under the wri &Tr t and that it was the Trust's free act and deed of the Trust on this day of 2010. WITNESS my hand and official seal. My Commission Expires: 5/3 LENDER: e 11 NOTARYPUBLIC AL TITENSOR by Power of Attorney for HILDA A. TITENSOR Trustee of the Von S. Titensor Revocable Trust Dated the 12th day of November, 1986 Deed In Lieu of Foreclosure Agreement Page 10 of 10 BLIC HEIDI BROWN County of Lincoln \yet M Commission Ex NOTARY PUBLIC State of Wyoming Tres Au ust 5, 2013