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HomeMy WebLinkAbout957742RECEIVED 1/21/2011 at 4:10 PM RECEIVING 957742 BOOK: 761 PAGE: 171 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY DEED IN LIEU OF FORECLOSURE AGREEMENT THIS DEED IN LIEU OF FORECLOSURE AGREEMENT "Agreement is made as of the- day of December, 2010 by and between KENNETH L. BAZEMORE and KATHRYN M. BAZEMORE, husband and wife, as tenants by the entireties, P.O. Box 383, Thayne, Wyoming 83127 (jointly, "Borrower and THE BANK OF STAR VALLEY, a Wyoming banking corporation, P.O. Box 3409, Alpine, Wyoming 83128 "Lender WITNESSETH: A. Borrower owns fee simple title to the real estate and the improvements thereon commonly known as: Lot 42 of Star Valley Ranch Plat 15, Lincoln County, Wyoming, as described on the official plat thereof. B. Lender made loans to Borrower as follows: 1. a Revolving Credit Mortgage securing a Promissory Note in the original principal sum of $346,515.00; said Mortgage being that which was recorded in the land records of Lincoln County, Wyoming on June 16, 2008 in Book 689 beginning at Page 26 as receiving No. 939957; and 2. a Revolving Credit Mortgage securing a Promissory Note in the original principal sum of $40,000.00; said Mortgage being that which was recorded in the land records of Lincoln County, Wyoming on November 20, 2008 in Book 709 beginning at Page 768 as receiving No. 943833; (together, the "Loans and the documents forming them, the "Loan Documents C. As of December 16, 2010, the total outstanding balances of the Loans, including principal and accrued and unpaid interest thereon, was $355,815.65 and $39,925.98. D. Borrower is in default under the Loans because they have failed to make payments that are due and owing to Lender "Borrower's Default The Loans have been accelerated and the entire principal amount of Loans, together with all accrued interest thereon is now due and owing. E. 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 in lieu of foreclosure of the following real estate: Lot 42 of Star Valley Ranch Plat 15, Lincoln County, Wyoming, as described on DEED IN LIEU OF FORECLOSURE AGREEMENT BAZEMORE THE BANK OF STAR VALLEY PAGE 1 OF 10 00 '0171 C the official plat thereof. (hereafter, the "Property"). F. The fair market value of the "Property" does not exceed the total outstanding unpaid principal of, interest accrued and unpaid on, and other outstanding indebtedness due and owing under the Loans. G. 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. 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 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 Property: good, valid, indefeasible, and marketable fee simple title to the land and to all buildings, fixtures, and other improvements situated on the land; 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. ARTICLE II CONSIDERATION 2.01 Covenant Not to Sue. In consideration for the transfer by Borrower of the Property to Lender, and subject to the terms, provisions, and conditions herein contained, at the "Closing" (as hereinafter defined), Lender shall: (i) deliver a covenant not to sue "Covenant Not to Sue to Borrower in the form attached hereto. 2.02 No Additional Payments Required. Borrower agrees that the above DEED IN LIEU OF FORECLOSURE AGREEMENT BAZEMORE THE BANK OF STAR VALLEY PAGE 2 OF 10 O& 172 ARTICLE III TITLE 0 consideration is adequate and no additional consideration, in cash or otherwise, is required for this Agreement. 3.01 Owners Title Policy. As a condition to Lender's obligation to close, Buyer must, at Closing, obtain from Hickman Land Title Company of Wyoming, Inc. "Title Company an Owner's Title Insurance Policy acceptable to Lender "Title Policy dated as of the Closing Date naming Lender as the insured, which Title Policy shall show fee simple title to the Property vested in Lender subject only to the Permitted Exceptions. The Title Policy must: (a) insure as separate parcels any easements appurtenant to the Real Property; (b) be in the amount of the indebtedness evidenced by the Note which is outstanding on the Closing Date (or such lesser amount as Lender shall accept); (c) contain full extended coverage insurance over all general exceptions set forth in such policy [(other than matters which would be deleted by delivery of a current plat of survey to the Title Company)]; (d) delete any so- called "creditors" rights exclusion or exceptions; and (e) include such reinsurance (with such reinsurers) as Lender may require, together with direct access agreements with such reinsurers. 3.02 Borrower Cooperation. Borrower shall cooperate with Lender to permit Lender to obtain the Title Policy and the Loan Policy Endorsements. ARTICLE IV 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 of good, valid, indefeasible, and marketable fee simple title to the Property, subject only to the Permitted Exceptions, closing of the transaction contemplated hereby "Closing shall take place at the office of Hickman Land Title Company of Wyoming, Inc. in Jackson, Wyoming, at 10:00 A.M. Mountain Standard Time) on December 31, 2010 "Closing Date through an escrow with the Title Company, or on such other date or such other place as may be mutually agreed upon in writing by Borrower and Lender. The agreement for such escrow "Escrow Agreement shall in the form commonly used by the Title Company. Each party shall have the right to inspect all documents prior to, at the time of, and after their deposit in escrow. To accommodate Closing, the parties will enter into the Escrow Agreement with Title Company concurrently with their execution and delivery of this Agreement. This Agreement shall not be merged into the Escrow Agreement, but the Escrow Agreement shall be deemed auxiliary to this Agreement, and as between the parties hereto, upon failure of the escrow or otherwise, the provisions of this Agreement shall be controlling. 4.02 Closing Deliveries. The following deliveries and/or actions shall constitute the Closing and, as described above, and, to the extent provided in the Escrow DEED IN LIEU OF FORECLOSURE AGREEMENT BAZEMORE THE BANK OF STAR VALLEY PAGE 3 OF 10 Lender. Agreement, shall be effected through the Escrow Agreement and, if not specified in the Escrow Agreement to be deposited in, and delivered under, the Escrow Agreement, shall be delivered at the Closing. Such deliveries, showings, and actions shall be deemed to be taken simultaneously and no one of which shall be deemed completed until all of such deliveries, showings, and actions have been completed. A. Title Documents. The following title, transfer, and original documentation and other matters shall be duly authorized, properly executed, acknowledged (if applicable) and/or delivered: (a) The Title Policy. The Title Policy (or a "marked -up" title commitment to issue the Title Policy) together with executed reinsurance agreements containing direct access provisions with all reinsurers shall be delivered to Lender. (b) Owner's Affidavit. Borrower shall deliver to Lender and Title Company its duly executed American Land Title Association Owner's Affidavit. B. Transfer Documents. The following Property transfer documentation shall be duly authorized, properly executed, acknowledged, and delivered to Lender: (a) Deed in Lieu of Foreclosure. A deed in lieu of foreclosure. (b) Affidavit for Deed in Lieu of Foreclosure. C. Other Deliveries. The following deliveries, showings, and occurrences shall have been delivered or shall have occurred: (a) Possession. Borrower shall deliver possession of the Property to (b) Keys to Premises. Borrower shall deliver to Lender or Lender's designee, all keys to the Property. (c) Covenant Not to Sue Borrower. Lender shall deliver the Covenant Not to Sue to Borrower. 4.03 Expenses of Closing. Each party shall pay its own expenses in connection with the Closing. ARTICLE V COOPERATION 5.01 Cooperation. Commencing on the date of this Agreement, Borrower will reasonably cooperate, upon Lender's request, with Lender, including, without limitation, DEED IN LIEU OF FORECLOSURE AGREEMENT BAZEMORE THE BANK OF STAR VALLEY PAGE 4 OF 10 00a174 00A.75 any management company designated by Lender to facilitate an orderly transfer of the ownership and management of the Property. ARTICLE VI REPRESENTATIONS AND WARRANTIES 6.01 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, 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) 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, action, or proceeding under the Bankruptcy Code or any similar state law has been filed against Borrower that has not been dismissed or vacated; and neither Borrower nor Guarantor have filed an answer or otherwise admitted in writing insolvency or inability to pay their debts or made an assignment for the benefit of creditors or consented to an appointment of a receiver or trustee of all or a material part of their property. The transaction contemplated herein is not a preference, voidable transfer, fraudulent conveyance, or otherwise in violation of the Bankruptcy Code or any other similar state or federal law. (b) 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 Property or the ownership, use, or maintenance thereof or this transaction. (c) 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 Loans and throughout the negotiation, preparation, and execution of this Agreement has been, and will through the Closing be represented by competent legal counsel of their own choosing, or if Borrow has not obtained such representation, that is because Borrower has chosen not to do so and is relying on Borrower's own knowledge and review of this transaction. This Agreement was entered into out of the free will of Borrower and pursuant to arm's- length negotiations and Borrower believe this Agreement is fair. Lender has not taken advantage of Borrower by threats, intimidation, overreaching, unconscionable DEED IN LIEU OF FORECLOSURE AGREEMENT BAZEMORE THE BANK OF STAR VALLEY PAGE 5 OF 10 conduct, or otherwise and Borrower is proceeding in this transaction voluntarily what Borrower perceives to be Borrower's own best interest. 6.03 Additional Representations and Warranties. Borrower also makes the following representations and warranties: (a) No authorization or approval of any governmental authority is required to be obtained by Borrower in connection with their execution, delivery, and performance of this Agreement. (b) Borrower is not in material default or breach in any respect under any applicable law or order of any court, administrative agency, or other governmental entity, or any agreement or document (except for the Borrower's Default), to which Borrower is a party, or by which Borrower may be bound or to which the Property may be subject. (c) Borrower has paid all property taxes that have become due. (d) There are no contracts or agreements, oral or written, to which Borrower is a party that affects the Property. (e) Borrower owns the Property in fee simple and has good title to the Property. There are no existing liens, encumbrances, agreements, encroachments, overlaps, special assessments, claims, leases, tenancies, other adverse interests, or defects upon or affecting the Property, except for the Permitted Exceptions and the Loans. Upon the conveyance of the Property to Lender, Lender will acquire and have good, marketable, and indefeasible title thereto, subject only to the Permitted Exceptions. (f) Borrower and Guarantor have not received any notice of, and have no knowledge of, any pending condemnation proceeding or conveyance in lieu thereof, or threatened rezoning, of the Property or any portion thereof. (g) The Property is in compliance with all applicable governmental laws and Borrower has not received notice and does not have knowledge that the Property in not in compliance such laws. (i) There are no unpaid bills or invoices for labor, services, or work performed upon the Property that could result in the filing of mechanic's, materialmen's, or laborer's liens on the Property. (j) Borrower has not engaged any broker or finder as leasing agent for the Property. No brokers' commissions or finder's fees are owing, or may be owed, to any person or entity. DEED IN LIEU OF FORECLOSURE AGREEMENT BAZEMORE THE BANK OF STAR VALLEY PAGE 6 OF 10 O0::176 co (k) To the best of Borrower's knowledge, there has been no presence, use, generation, release, production, disposal, migration, or storage on the Property of any Hazardous Materials or any other activity that could have toxic results, and there is no proceeding or inquiry by any governmental agency with respect thereto. For purposes of this Agreement, the term "Hazardous Materials" shall have the meaning ascribed to it in the Loans. 6.04 Indemnity. Borrower agrees to defend, indemnify, and hold Lender and Lender's 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 any 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. ARTICLE VII NO OBLIGATION OF LENDER TO THIRD PARTIES 7.01 No Third -Party. Beneficiary. Borrower acknowledges and agrees that the transfer to Lender of title to the Property pursuant to the terms of this Agreement shall not create any obligations on the 50 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 8.01 Conveyance. The conveyance of the Property to Lender 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. ARTICLE IX NO MERGER 9.01 Merger. Notwithstanding Lender's acquisition of the Property, the indebtedness evidenced by the Note shall not be cancelled, shall survive the Closing and DEED IN LIEU OF FORECLOSURE AGREEMENT BAZEMORE THE BANK OF STAR VALLEY PAGE 7 OF 10 003177 delivery of any deeds and/or releases, and all of the Loan Documents shall remain in full force and effect after the transaction contemplated by this Agreement has been consummated. It is the express intention of each of the parties hereto that such interests of Lender in the Property shall not merge, but shall be and remains at all times a valid and continuous lien on the Property until and unless released of record by Lender or its successors and assigns. 10.01 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, a's 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. 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: Keneth L. Bazemore Kathryn M. Bazemore Mailing Address: Po Roth; v? Delivery Address: 1 KfN1s 11t3Ick- 1(a� 'I"C?n ICI c, 46 Facsimile No.: ARTICLE X NOTICES The Bank of Star Valley Mailing Address: Delivery Address: Facsimile No.: P.O. Box 3409 Alpine, Wyoming 83128 102 Greys River Road Alpine, Wyoming 83128 (307) 654 -0200. 10.02 Effective Delivery. All notices shall be deemed effectively given on the date that such notice is received or refused. DEED IN LIEU OF FORECLOSURE AGREEMENT BAZEMORE THE BANK OF STAR VALLEY PAGE 8 OF 10 00:..p1'7S ARTICLE XI MISCELLANEOUS 11.01 Entire Agreement. This Agreement, 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. 11.02 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and the respective heirs, administrators, executors, personal representatives, successors, and assigns. 11.03 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. 11.04 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. 11.05 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. 11.06 Appointment of Designee. Lender does hereby reserve the right to appoint Buyer to accept title to the Property at the time of the Closing. 11.07 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. 11.08 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, Lender is assuming any obligations or liabilities of Borrower or Guarantor. DEED IN LIEU OF FORECLOSURE AGREEMENT BAZEMORE THE BANK OF STAR VALLEY PAGE 9 OF 10 00A.79 4 042460 11.09 Value. Borrower hereby confirms to Lender that this value of the Property does not exceed the indebtedness owing to Lender pursuant to the Loan Documents. 11.10 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: LENDER: THE BANK OF STAR VALLEY, a Wyoming bank corporation BY: i a c IDI ROBERTS VICE PRESIDENT DEED IN LIEU OF FORECLOSURE AGREEMENT BAZEMORE THE BANK OF STAR VALLEY PAGE 10 OF 10 )461:C41-144-0:14 ,tea KATHRYM. BAZEMORE ail AFFIDAVIT FOR DEED IN LIEU OF FORECLOSURE STATE OF NORTH CAROLINA SS. COUNTY OF -)h n S47\ WE, KENNETH L. BAZEMORE and KATHRYN M. BAZEMORE "Sellers being duly sworn, warrant to The Bank of Star Valley "Lender and Hickman Land Title Company of Wyoming, Inc. "Title Company and their respective successors and assigns, as follows: 1. That we are over twenty -one years of age; we are married to each other; and we reside in Star Valley Ranch, Wyoming. 2. That we are the fee owners, as husband and wife, tenants by the entireties, of Lot 42 of Star Valley Ranch Plat 15, Lincoln County, Wyoming, as described on the official plat thereof, having acquired the property through the Warranty Deed that was recorded in the land records of Lincoln County, Wyoming on July 14, 2005 in Book 591 at Page 135 as Receiving No. 909966 (the "Property"). 3. That the Property has been in our possession since the date of conveyance to us, and that such ownership and possession has been uninterrupted and continuous, open, notorious, hostile and adverse to all others and exclusive of the right or claim of any other person or persons and our title has never been disputed or questioned. No person has a contract for the purchasing of the Property and we know of no facts by reason of which said possession or title may be called in question or by reason of which any claim to any part of the Property or any interest therein adverse to might be set up. No conditional bills of sale or chattel mortgages have been filed against the Property or against any personal property or fixtures attached to or used in connection with the Property. 4. That there are no law suits or legal proceedings pending anywhere affecting the Property and there are no claims or pending claims for accidents or other legal claims with respect to the Property. 5. That there are no judgments against us that are unpaid or unsatisfied of record, entered in any court of this State or of the United States, and the Property is free AFFIDAVIT FOR DEED IN LIEU OF FORECLOSURE KENNETH L. BAZEMORE KATHRYN M. BAZEMORE PAGE 1 OF 3 from all leases, taxes, liens, encumbrances or charges of every nature and description, save and except: 6. That the Property is occupied as follows: 7. That no proceedings in bankruptcy have ever been instituted by or against us in any court or before any officer of any State or of the United States, nor at any time have we made an assignment for the benefit of creditors. 8. That during the time that we have owned the Property, neither of us has been married to any other person now living. Neither of us has changed our name during the time that we have owned the Property. 9. That we are parties with Lender to a Deed in Lieu of Foreclosure Agreement of even date herewith "Agreement 10. That we are the persons who have executed a Deed in Lieu of Foreclosure for the Property on this date to Lender (the "Deed 11. That the Deed was executed and delivered pursuant to the Agreement. 12. That the Deed was intended to be and is an absolute conveyance of title to the Property to Lender in effect well as in form; the Deed was not and is not intended to serve or operate as a mortgage, deed to secure debt, security agreement, trust conveyance, deed of trust, lien, security interest, or security of any kind; by virtue of the Deed, the Agreement, and any other documents, we have waived, relinquished, and given up any and all right, title, and interest, legal, equitable, or otherwise in the Property; the consideration for the Deed was and is for the benefit our benefit and consists of Lender's execution and delivery of the Covenant Not to Sue. 13. The Deed was executed and delivered as the result of our request and was our free and voluntary act; we have no creditors whose rights would be prejudiced by the Deed; our execution and delivery of the Agreement and other documents is not the result of duress or undue influence, intimidation, misapprehension, bad faith, unconscionable conduct, overreaching conduct, or misrepresentation by Lender, or any agent, attorney, or any other representative of Lender; we have been represented by legal counsel of our own AFFIDAVIT FOR DEED IN LIEU OF FORECLOSURE KENNETH L. BAZEMORE KATHRYN M. BAZEMORE PAGE 2 OF 3 C 0 A.S2 i 5 000183 choosing throughout the transactions contemplated or referenced in the Agreement, or have chosen to proceed without counsel, relying on our own knowledge and review of the transactions. 14. We are proceeding with the transaction contemplated by the Agreement voluntarily pursuant to what we perceive to be in our own best interest. We understand that the transactions contemplated by the Agreement may have adverse tax consequences and have consulted with such tax, legal, and accounting advisors with respect to such consequences as we have deemed advisable. 15. That this Affidavit is made to induce Lender to accept the Deed, is made for the protection and benefit of Lender and its successors, grantees, and assigns, the Title Company, who may now or hereafter insure Lender's interests in the Property, and all other parties hereafter dealing with or who may acquire any interest in the Property, all of whom may rely on this Affidavit. SUBSCRIBED AND SWORN TO before me on this, the December, 2010 by Kenneth L. Bazemore and Kathryn M. Bazemore. WITNESS my hand and official seal. My Commission expires: te`: KATHR M. BAZEMORE AFFIDAVIT FOR DEED IN LIEU OF FORECLOSURE KENNETH L. BAZEMORE KATHRYN M. BAZEMORE PAGE 3 OF 3 93 day of 1111814 444 101 +0TAR woo (/BO ON COV *Hs III lot' d2' DATED this COVENANT NOT TO SUE day of December, 2010. THE BANK OF STAR VALLEY, a Wyoming banking corporation, "Lender for and in consideration of the sum of Ten and No /100 Dollars ($10.00), in hand paid, and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, pursuant to that certain Deed in Lieu of Foreclosure Agreement dated December 2010 (the "Purchase Agreement between Lender and KENNETH L. BAZEMORE and KATHRYN M. BAZEMORE, husband and wife, as tenants by the entireties, P.O. Box 383, Thayne, Wyoming 83127, does hereby covenant and agree not to sue Borrower, and their heirs, executors, administrators, personal representatives, successors, assigns, on account of any and all liabilities, duties, responsibilities, obligations, claims, demands, actions, damages, costs, losses, and expenses now existing or hereafter arising out of or in any way relating to or connected with, directly or indirectly, the "Property" (as defined in the Purchase Agreement), the "Loan" (as defined in the Purchase Agreement), and the "Loan Documents" (as defined in the Purchase Agreement) excluding, however, those specific matters or obligations of Borrower arising under the specific terms of the Purchase Agreement and the "Borrower Documents" (as defined in the Purchase Agreement). Notwithstanding the foregoing, Lender reserves the right to sue (including, without limitation, the right to counterclaim against) and obtain and satisfy a judgment against, Borrower to the full extent of any indemnification obligations of Borrower under the Purchase Agreement or by reason of claims of causes or action arising out of: (a) any breach of the covenants, representations, warranties, and agreements by Borrower set forth in the Borrower Documents; or (b) fraud. The foregoing covenant not to sue will be null, void, and of no force and effect, if; (a) Borrower commences any action, suit, or proceeding against Lender in connection with the Purchase Agreement seeking to rescind the transaction contemplated thereby (in whole or in part) or attacking the validity thereof (in whole or in part); or (b) if on or before the 367th day following the "Closing Date" (as defined in the Purchase Agreement) Borrower files a petition under any chapter or section of Title 11 of the United States Code, as amended. Furthermore, Lender shall have the right to sue and (including, without limitation, the right to counterclaim against) obtain and satisfy a judgment against Borrower if Borrower is a necessary or reasonably necessary party in any action brought against Lender or any affiliate of Lender. Nothing contained herein shall affect, and Lender hereby expressly reserves, the right to foreclose the "Mortgage" (as defined in the Purchase Agreement) by judicial or, to the extent permitted by applicable law, non judicial foreclosure and, in connection with any such foreclosure, Borrower may, in Lender's sole discretion, be named as a party defendant, and Lender will be permitted to seek, obtain, and satisfy a judgment in any such foreclosure proceedings, provided, however, that Borrower shall not be personally liable for satisfaction of such judgment. THE BANK OF STAR VALLEY, a Wyoming bank corporation Z IA 47 OBERTS VICE PRESIDENT !4t DEED IN LIEU OF FORECLOSURE KNOW ALL PERSONS BY THESE PRESENTS, that KENNETH L. BAZEMORE and KATHRYN M. BAZEMORE, husband and wife, as tenants by the entireties, P.O. Box 383, Thayne, Wyoming 83127, Grantors, for and in consideration of the sum of Ten and No /100 Dollars ($10.00) and other good and valuable consideration, in hand paid, the receipt and sufficiency of such consideration being hereby acknowledged, do hereby GRANT, SELL, AND CONVEY unto THE BANK OF STAR VALLEY, a Wyoming banking corporation, P.O. Box 3409, Alpine, Wyoming 83128, Grantee, and its successors and assigns, the following described real estate, situate in the County of Lincoln, State of Wyoming, hereby waiving and releasing all rights under and by virtue of the homestead exemption laws of the State of Wyoming, to wit: Lot 42 of Star Valley Ranch Plat 15, Lincoln County, Wyoming, as described on the official plat thereof Together with and including all improvements thereon and all appurtenances and hereditaments thereunto belonging. Subject, however, to all reservations, restrictions, protective covenants, exceptions, easements, and rights -of -way of record, in sight, or in use. This deed is an absolute conveyance, Grantors having sold the above described real property to the Grantee for good and valuable consideration, such consideration being the full satisfaction of all obligations secured by the Mortgage heretofore executed by Grantors. Grantors declare that this conveyance is freely and fairly made and that there are no agreements, written or oral, other than this deed between Grantor and Grantee with respect to the real property described above. EXECUTED this 3 day of December, 2010. STATE OF NORTH CAROLINA SS. COUNTY OF Joh ACKNOWLEDGED before me on this, the 93 day of December, 2010, by Kenneth L. Bazemore and Kathryn M. Bazemore. WITNESS my hand and official seal hereto affixed. 8",915 114 18 KATHRYN BAZEMO 00a1