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HomeMy WebLinkAbout9599800 Ce Nt a 'A9 fD r Q L:. CA eU C r) H rya 0 a. 0 fig 0 o g Q Fro ,0 o° CO a0 0) Q. 000103 AGREEMENT FOR DEED IN LIEU OF FORECLOSURE THIS AGREEMENT FOR DEED IN LIEU OF FORECLOSURE "Agreement is made as of the ?e" day of 2011 by and between MICHAEL SUTER and KRISTY SUTER, husband and wife, as tenants by the entireties, P.O. Box 4262, Bedford, Wyoming 83112 (jointly, "Borrower and FERN K. JENSEN, a single woman, 320 East 50 North, Logan, Utah 84318 "Lender WITNESSETH: A. Borrower owns fee simple title to the real estate and the improvements thereon commonly known as: Lot 3 of Block 15 of the Bedford Townsite survey as platted and recorded in the land records of Lincoln County, Wyoming, beginning at the Northwest Corner of said Lot 3 of Block 15 and running thence South along the West line of said Lot 3, 120 feet; thence East 120 feet; thence North 120 feet to the North line of said Lot 3 of Block 15; thence West 120 feet to the point of beginning 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. B. Lender made a loan to Borrower as follows: a Mortgage securing a Promissory Note in the original principal sum of $189,750.00; said Mortgage being that which was recorded in the land records of Lincoln County, Wyoming on September 17, 2007 in Book 672 beginning at Page 386 as Receiving No. 933179; and (together, the "Loan and the documents forming them, the "Loan Documents C. As of June 1, 2011, the total outstanding balances of the Loan, including principal and accrued and unpaid interest thereon, was $189,750.00 and $2,000.00. D. Borrower is in default under the Loan because Borrower has failed to make payments that are due and owing to Lender "Borrower's Default The Loan have been accelerated and the entire principal amount of Loan, 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 AGREEMENT FOR DEED IN LIEU OF FORECLOSURE SUTER JENSEN PAGE 1 OF 10 000104 Borrower's Default by Borrower's conveyance in lieu of foreclosure of the following real estate: Lot 3 of Block 15 of the Bedford Townsite survey as platted and recorded in the land records of Lincoln County, Wyoming, beginning at the Northwest Corner of said Lot 3 of Block 15 and running thence South along the West line of said Lot 3, 120 feet; thence East 120 feet; thence North 120 feet to the North line of said Lot 3 of Block 15; thence West 120 feet to the point of beginning. 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. (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 Loan. 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, 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 AGREEMENT FOR DEED IN LIEU OF FORECLOSURE SUTER JENSEN PAGE 2 OF 10 000105 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, Lender hereby covenants not to sue Borrower upon delivery of a deed at Closing conveying title to the Property to Lender. 2.02 No Additional Payments Required. Borrower agrees that the above consideration is adequate and no additional consideration, in cash or otherwise, is required for this Agreement. ARTICLE III TITLE 3.01 Owners Title Policy. As a condition to Lender's obligation to close, Buyer must, at Closing, obtain from Alliance Title Escrow 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 Alliance Title AGREEMENT FOR DEED IN LIEU OF FORECLOSURE SUTER /JENSEN PAGE 3 OF 10 000106 Escrow Company of Wyoming, Inc. in Afton, Wyoming, at 10:00 A.M. Mountain Standard Time) on June 30, 2011 "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 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 Lender. AGREEMENT FOR DEED IN LIEU OF FORECLOSURE SUTER JENSEN PAGE 4 OF 10 000107 (b) Keys to Premises. Borrower shall deliver to Lender or Lender's designee all keys to the Property. 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, 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 has authority to enter into this Agreement.. 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 Borrower has not 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 Loan and throughout the negotiation, preparation, and execution of this Agreement has been, and will through the Closing be represented by competent AGREEMENT FOR DEED IN LIEU OF FORECLOSURE SUTER JENSEN PAGE 5 OF 10 000108 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 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. AGREEMENT FOR DEED IN LIEU OF FORECLOSURE SUTER JENSEN PAGE 6 OF 10 6.04 Indemnity. Borrower agrees to defend, indemnify, and hold Lender and Lender's successors, assigns, and personal representatives (co llectively, 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. 000109 (h) 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. (i) 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. (j) 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. 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 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 AGREEMENT FOR DEED IN LIEU OF FORECLOSURE SUTER JENSEN PAGE 7 OF 10 000110 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 Merger. Upon Lender's acquisition of title to the Property, the indebtedness evidenced by the Note shall be cancelled, and all of the Loan Documents shall no longer be of any force or effect after the transaction contemplated by this Agreement has been consummated. 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, 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. 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: ARTICLE IX MERGER ARTICLE X NOTICES Michael Suter Kristy Suter Mailing Address: Fern K. Jensen Mailing Address: Box 4262 Bedford, Wyoming 83112 320 East 50 North Logan, Utah 84318. 10.02 Effective Delivery. All notices shall be deemed effectively given on the date that such notice is received or refused. AGREEMENT FOR DEED IN LIEU OF FORECLOSURE SUTER JENSEN PAGE 8 OF 10 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. 0001.11 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 they have 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 not assuming any obligations or liabilities of Borrower. AGREEMENT FOR DEED IN LIEU OF FORECLOSURE SUTER JENSEN PAGE 9 OF 10 11.09 Value. Borrower hereby confirms to Lender that the 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: MICHAEL SUTER LENDER: K ))A. S ER AGREEMENT FOR DEED IN LIEU OF FORECLOSURE SUTER JENSEN PAGE 10 OF 10 000112