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RECEIVING 967246
BOOK: 795 PAGE: 633
JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER, WY
DEED IN LIEU OF FORECLOSURE AGREEMENT
RECITALS•
00633
THIS DEED IN LIEU OF FORECLOSURE AGREEMENT "Agreement is made
and entered as of the (fthi day of September, 2012 (the "Effective Date by and
between Laurie J. Rocknak "Borrower whose address is 375 East 5th Avenue,
Afton, Wyoming, 83110, and HOWARD N. RHOADS AND CINDY L. RHOADS
"Lender whose address is PO Box 903, Fort Sumner, NM 88119.
A. On or about March 30, 2009, Borrower executed and delivered to
HOWARD N. RHOADS and CINDY L. RHOADS a promissory note in the face
amount of $25,000.00.
B. As of September 18, 2012, Borrower owed Lender principal on the loan
in the amount of $20,274.71.
C As of September 18, 2012, the interest on the loan is in the amount of
$1,953.47, and late fees in the amount of $735.00. Interest continues to accrue at
the rate of $3.81 per day.
D. The Promissory Note is secured by, among other things, a Mortgage
granted to Howard N. Rhoads and Cindy L. Rhoads on May 6th, 2009 and which was
recorded on r1cu '1, '2 -e}'tO 9 in the Office of the Clerk of Lincoln County,
Wyoming in Book�'7PL- of Mortgages at Page 29.5` The mortgage provides a
security interest on real property described as:
Part of Lot 4 of Block 23 to the Town of Afton, Lincoln County,
Wyoming being more particularly described as follows:
COMMENCING 90 feet East of the Southwest corner of said Lot 4;
And, running thence East, 75 feet;
Thence North, 330 feet;
Thence West, 75 feet;
Thence South, 330 feet to the POINT OF BEGINNING.
E The Note has not been paid off and Borrower is in default on the Note.
F. Borrower is the current owner of the Property.
G. The Property is improved with a residential structure and all
improvements to the Property are deemed to be a part of the Property.
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H. To the extent that there are any items of personal property, as
described on Exhibit A hereto, located on the Property or associated with the
Property, said items shall be collectively referred to as "Personal Property."
I. Borrower has agreed to convey title to the Property to Lender by
Warranty deed (the "Deed to convey the Personal Property to Lender by a bill of
sale (the "Bill of Sale to transfer and assign to Lender all of the other general
intangibles, goodwill, and rights to names related to the Property (the "Goodwill In
consideration of the foregoing, Lender has agreed to release Borrower from liability in
connection with the Loans to the extent set forth below.
NOW, THEREFORE, in consideration of the above premises, the covenants and
agreements set forth herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Delivery of Documents. Concurrently with the execution of this Agreement
at the closing (the "Closing
(a) Borrower shall execute and deliver to Lender the Deed, which the
parties agree and acknowledge is intended to effect an outright, absolute, and
unconditional conveyance of title to the Property to Lender and not the granting of a security
interest therein, in the form of Exhibit B attached hereto and by this reference made a
part hereof.
(b) Borrower shall execute and deliver to Lender the Bill of Sale, which is
intended to effect an outright, absolute, and unconditional conveyance of title to the Personal
Property to Lender and not the granting of a security interest therein, in the form of
Exhibit C attached hereto and by this reference made a part hereof.
(c) Borrower shall deliver possession of the Property, all keys to the
Property, and the Personal Property to Lender upon delivery of the Deed.
(d) Borrower shall deliver to Lender all drawing, blueprints, plans and
specifications, surveys, reports, audits, agreements, records, permits, keys, and all
correspondence, instruction manuals concerning operation of the Property and the
Personal Property and all warranties with respect to the same, and all agreements
with governmental authorities or other parties in connection with the Property, if
any, that are in the possession of Borrower.
(e) Borrower shall execute and deliver to Lender duplicate originals
of an Estoppel Affidavit.
(f) Borrower shall execute any documents requested by the Lender
reasonably required to close this transaction.
2. Payment to Borrower. In exchange for the mutual covenants and
agreements contained herein, and contingent upon Borrower's full performance of
its obligations under this Agreement, Lender shall pay to Borrower in accordance
with an agreement entered into between Borrower and Lender, which is attached
hereto as Exhibit D and made a part of this document by reference, the amount of
ten dollars and zero cents 10.00), the sufficiency of which Borrower hereby
acknowledges.
3. Warranties, Representations and Covenants of Borrower.
00630
(a) Borrower hereby unconditionally covenants, agrees, represents,
and warrants to Lender and agrees to indemnify and hold Lender harmless from any
liability resulting from the inaccuracy thereof, that:
(1) No litigation or proceeding is pending or to the knowledge
of Borrower, threatened against or relating to the Property, nor does Borrower know
or have reasonable grounds to know of any basis for any such action, including, without
limitation, condemnation or eminent domain proceedings.
Property.
unpaid.
(2) There are no matters adversely affecting title to the
(3) There are no contracts or agreements in place that contract
for services or utilities to any portion of the Property
(4) There are no tenants or leases that burden the Property
and Borrower has not executed any leases or other documents giving any person or
entity any possessory rights in or two the Property.
(5)
No taxes or assessments made against the Property remain
(6) Borrower has not used Hazardous Materials (as defined
hereinafter) on, from, or affecting the Property in any manner which violates federal,
state, or local laws, ordinances, rules, regulations, or policies governing the use,
storage, treatment, transportation, manufacture, refinement, handling, production, or
disposal of Hazardous Materials, and that, to the best of Borrower's knowledge, no
person or entity has used Hazardous Materials on, from, or affecting the Property in any
manner which violates federal, state, or local laws, ordinances, rules, regulations, or
policies governing the use, storage, treatment, transportation, manufacture,
refinement, handling, production, or disposal of Hazardous Materials. Borrower has
never received any notice of any violations of federal, state, or local laws, ordinances,
rules, regulations, or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production, or disposal of Hazardous Materials, and,
to the best of Borrower's knowledge, there have been no actions commenced or threatened
by any person or entity for non compliance therewith.
For purposes of this Agreement, "Hazardous Materials" shall mean and include any
flammable explosives, petroleum (including crude oil) or any fraction thereof, radioactive
materials, hazardous wastes, toxic substances or related materials, including, without
limitation, asbestos, formaldehyde compounds, PCBs, radon, and any other substances
defined as or included in the definition of toxic or hazardous substances, wastes, or
materials under any federal or applicable state or local laws, ordinances, or regulations
dealing with or otherwise pertaining to toxic or hazardous substances, wastes, or materials.
(7) Borrower has not engaged in or committed intentional or willful
fraud, waste, or misrepresentation in connection with the Loans.
that:
9063x'
(b) Borrower hereby agrees, covenants and warrants with and to Lender
(1) It is aware of its rights under Wyoming law to cure any default
under the Loans or to redeem the Property after foreclosure sale and expressly and
voluntarily gives up and forgoes all such rights by delivery of this Agreement and the
documents to be executed in connection therewith.
(2) The conveyances described herein from Borrower to Lender
are absolute conveyances, and the consideration received by Borrower in exchange
therefore is fair and adequate and is equal to or greater than the reasonably equivalent
value of the Property.
(3) It shall indemnify and hold Lender harmless from and against
any and all claims, losses, damages, and liabilities, including costs, expenses, and reasonable
attorneys' fees in connection therewith arising out of any breach of the representations,
warranties, and agreements set forth in this Agreement.
(4) It shall indemnify and hold Lender harmless from and against
any and all claims, demands, losses, damages, costs, expenses, liens, liabilities,
penalties, fines, lawsuits, and other proceedings (including attorneys' fees) directly or
indirectly arising out of or attributable to the use, generation, storage, release,
threatened release, discharge, disposal, or presence prior to the date of this Agreement
(regardless of whether or not discovered prior to or after the date of this Agreement
and regardless of by whom caused, whether by Borrower or any predecessor in
title, any owner of land adjacent to the Property, or any other third party) of
0063'
Hazardous Materials on, under, or about the Property, including, without limitation:
(a) claims of third parties (including governmental agencies) for damages, penalties,
losses, costs, fees, expenses, injunctive or other relief, (b) response costs, clean -up
costs, costs and expenses of removal and restoration, including fees of attorneys,
consultants, and other experts, and costs of determining the existence of Hazardous
Materials and reporting the same to any governmental agency; and (c) any and all
expenses or obligations, including reasonable attorneys' fees, incurred at, before, and
after any trial or appeal therefrom.
(c) Borrower hereby warrants and represents to Lender that as of the
date hereof that Borrower is not a debtor or a co- debtor in a bankruptcy or
insolvency proceeding and that Borrower does not intend to file a petition in
bankruptcy, nor to the knowledge of Borrower, are any of Borrower's creditors
threatening to file an involuntary petition in bankruptcy with respect to Borrower as a
debtor.
(d) Each party hereto represents and warrants for itself that it has
taken all necessary steps and is properly authorized and has full power to execute this
Agreement and to take all of the actions contemplated hereby.
4. Continuing Obligations. Notwithstanding the conveyance of the
Property and the Personal Property to Lender, it is the express intent of the parties
hereto that the lien of the mortgages described above shall not merge with title to the
Property and that the Notes and mortgages described above shall remain in full force
and effect except as expressly modified herein.
5. General Intent. Notwithstanding the lack of merger discussed in
paragraph 4, it is the express intent and understanding of the parties to this
Agreement that Lender shall become the immediate owner of and have full title to the
Property and the Personal Property, and the above described mortgages will remain
as valid and enforceable liens on the Property; provided, however, that Borrower shall
be released from liability under the Notes to the extent described in paragraph 7
below. It is the intent of this Agreement that Lender's rights and remedies as to all
collateral for the Notes not be compromised in any way except as described in the
release contained in paragraph 6 below.
6. Cooperation. Borrower hereby agrees that it will cooperate fully with Lender
and do nothing which will be reasonably likely to bind or interfere with any of the following:
(a) A stable transition of ownership, operation, and management of the
Property and the Personal Property.
(b)
for the Property.
Lender's continued and consistent marketing and promotional efforts
Property.
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(c) Access to all information and books and records related to the
(d) Execution of any and all additional documents as reasonably
requested by Lender or the Title Company in connection with the Policy or to effect the
intent of this Agreement.
7. Release and Limitations of Release.
(a) Subject to the following sentence, Lender hereby releases and discharges
Borrower from any and all claims, demands, liabilities, causes of action, suits, and
obligations under the Notes and the Loans, and for any and all activities, actions, or
omissions associated with the Property, the Notes, or the Loans or the ownership,
financing, maintenance, or management of the Property on or before the date hereof, except
as such claims, demands, liabilities, obligations, activities, actions, or omissions may be
reaffirmed or set forth in or arise under this Agreement or in any of the documents
executed in connection herewith. Notwithstanding the foregoing release language and the
conveyance of the Property and Personal Property to Lender, it is the express intent of
the parties hereto that the lien of the mortgages described above shall not merge with
title to the Property and that the Notes and above described mortgages shall remain in
full force and effect, provided, however, that with respect to any claim by Lender under
the Notes or the above described mortgages, no deficiency or money judgment shall be
sought or obtained against Borrower.
(b) Borrower hereby forever releases and discharges Lender from any and all
claims, demands, liabilities, causes of action, suits, and obligations, now or in the future
existing, under the Notes and/or Loans and for any and all activities, actions, or
omissions associated with the Property, the Notes and/or Loans on or before the date
hereof. Borrower recognizes that this release is a full and general release and that it is
Borrower's intention to fully and finally release Lender from any and all claims, causes
of actions, demands, liabilities, punitive damages, other damages and costs and
expenses, including attorneys fees, arising from or related to any of the Notes and/or
Loans or the Property.
8. Brokerage Commissions. Each party hereto warrants and represents it
has not incurred contractual or any other liability for the payment of any brokerage fee or
commission in connection with the transactions contemplated hereby. If any of the
parties shall breach the foregoing representation, it shall indemnify the other party and
hold the other party harmless from and against any damage, liability, loss, claim, or
expense suffered by the other party as a result of such breach.
9. Assumption of Obligations. In no event shall Lender assume or be
deemed to have assumed any obligation or liability in connection with the Contracts
which are based on events or accrue prior to Closing.
10. Notice. Any notice or demand that Lender or Borrower is required
or permitted to give to the other in connection with this Agreement shall be effective only
if in writing, signed by the party giving such notice, and shall, unless otherwise in this
Agreement expressly provided, be given or served by depositing the same in the United
States mail, postage prepaid and registered or certified and addressed to the party to be
notified, with return receipt requested, or by delivering the same in person or by
overnight courier to the party to be notified, or by postpaid telegram addressed to the
party to be notified, or by delivery thereof via facsimile. Any such notice deposited in the
mail in the manner described above shall be deemed effective three (3) business days
following deposit in accordance with the foregoing requirements; such notice given in
any other manner shall be deemed given only if and when delivered to the party to be
notified at its address below, except that any notice via facsimile shall be deemed
given when successful transmission is confirmed on the fax facilities of the delivery
party (as an ordinary function thereof). For purposes of notice, the addresses and
facsimile numbers for the parties shall, until changed as hereinafter provided, be as
follows:
To Lender:
HOWARD N. RHOADS and CINDY L. RHOADS
PO Box 903
Fort Sumner, NM 88119
With a copy to:
Spencer L. Allred
Bowers Law Firm, PC
PO Box 1550
Afton, WY 83110
To Borrower:
Laurie J. Rocknak
375 East 5th Ave
Afton, WY 83110
0063!
The parties hereto shall have the right from time to time to change their respective
addresses, or facsimile information (which must include a related telephone number to
address any transmission difficulties), and each shall have the right to specify as its
address or facsimile number any other address or facsimile number within the
continental United States of America by at least five (5) days' notice to the other party as
herein provided.
11. Miscellaneous.
OO6 LP
(a) This Agreement shall be binding upon the parties hereto and their
respective successors and assigns.
(b) There shall be no assignment of the rights, obligations, or
interests of Borrower under this Agreement without the prior written consent of
Lender.
(c) In no event shall any of the parties to this Agreement be deemed
to have waived or have agreed to an amendment of any provision of this Agreement
unless such waiver or amendment is acknowledged in a written instrument executed
by all the parties hereto and then only to the extent specifically and expressly set forth
in said Agreement. No waiver by any of the parties hereto of any provision as applied in
one context shall be construed as a waiver of any other provision of this Agreement or
of the same provision as applied to other contexts.
(d) This Agreement and the documents to be executed pursuant to
this Agreement shall contain the entire understanding and agreement between the
parties, and all prior negotiations, agreements, and understandings, oral or written,
are fully merged herein and superseded hereby.
(e) This Agreement shall be construed under and governed by the laws
of the State of Wyoming.
(f) This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
document.
(g) Borrower hereby agrees to execute any additional documents
reasonably requested by Lender to further the purposes or evidence the intent of this
Agreement. All documents to be delivered to Lender shall be in form and substance
satisfactory to Lender.
(h) The covenants, agreements, warranties, and representations
contained herein shall not merge into the various documents executed and delivered to
this Agreement, but shall instead survive the Closing and remain in full force and effect.
(i) The captions of this Agreement are for convenience and
reference only and in no way modify, explain, enlarge, or restrict any of the
provisions hereof.
(j) In the event of any litigation arising out of this Agreement, the court
shall award to the prevailing party all reasonable costs and expenses of such party in
connection with the litigation, including, without limitation, all attorneys' fees.
(k) The illegality, invalidation, or unenforceability of any of the
provisions of this Agreement as applied to any particular context shall in no way
affect or limit the enforceability or application of the other provisions hereof or the
application of the provision in question to such other contexts in which it is
enforceable; and to the extent of its unenforceability, the provision in question shall be
deemed replaced with another provision which as closely as possible parallels its content
and substantive effect.
(1) Each representation and warranty set forth in this Agreement shall
survive the Closing and delivery of the Deed and other documents to be delivered to
Lender under the terms of this Agreement.
(m) This Agreement may be executed in multiple counterparts, and
when each party has executed such counterparts, all counterparts together shall be
deemed to be one complete and binding Agreement. IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date and year first above written.
STATE OF
ss.
COUNTY OF v MCA
BORRO ER:
brie J. Rocknak
foregoing instrument was acknowledged before me this
2012 by Laurie J. Rocknak.
Witness my hand and official seal.
My commission expires:
kid
Notary Public
HEIDI BROWN
County
Linooh
day of
00641
NOTARY PUBLIC
State o
Wyoming
tuii4ust 5, 2013
STATE OF ihrtmlf
ss.
COUNTY OF Am,ckP,i
The foregoing instrument was acknowledged before me this iq i4 day of
3DII\M)111/ 2012, by HOWARD N. RHOADS.
Witness my hand and official seal.
My commission expires: al) /Ail 31 2:0161
My commission expires:
LENDER:
HOWARD N. R OADS
CINDY RHOADS
1.11,4 RAfttiti
Notary
ERIKA N. BENCH NOTARY PUBLIC
County of
Lincoln
State of
Wyoming
My Commission Expires July 31, 2016
Th •ore oing instrument was acknowledged before me this
2012, by CINDY L. RHOADS.
Witness my hand and official seal.
Notary Public
71
'C r day of
HEIDI EIROV1,14 NOTARY PUBLIC
County of
Lincotr■
Comm, Aup, _ust 5, 2013
0064
State of
Wyoming
Exhibit A Personal Property
06
All goods, chattels, motor vehicles, tools, appliances, furniture, equipment,
inventory, machinery, fixtures, trade fixtures, window coverings, floor coverings,
supplies, instruments, certificates of title, documents, books, business records,
customer lists, files, keys, locks, security devices, manuals, electronic information
systems, drawings, plans, specifications, diagrams, soil reports, environmental
reports, surveys, other architectural or engineering work product and other
personal property of any nature whatsoever owned by Borrower and located on or
used in conjunction with the Property, including trade names, licenses and permits
related thereto, including but not limited to the following specific items:
STATE OF
ss
COUNTY OF
Witness my hand and official seal.
My Commission Expires:
Exhibit B Deed
WARRANTY DEED
Laurie J. Rocknak, a single person, GRANTOR, of 375 East 5th Avenue, Afton, WY 83110,
for and in consideration of TEN DOLLARS ($10.00) and other good and valuable
consideration, in hand paid, receipt of which is hereby acknowledged, CONVEYS AND
WARRANTS to HOWARD N. RHOADS AND CINDY L. RHOADS, GRANTEE, whose
mailing address is PO BOX 903, Fort Sumner, NM 88119, the following described
real estate, situated 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:
Part of Lot 4 of Block 23 to the Town of Afton, Lincoln County, Wyoming being
more particularly described as follows:
COMMENCING 90 feet East of the Southwest corner of said Lot 4;
And, running thence East, 75 feet;
Thence North, 330 feet;
Thence West, 75 feet;
Thence South, 330 feet to the POINT OF BEGINNING.
Together with and including all oil, gas, and other minerals and mineral
rights appurtenant thereto and owned by Grantor, if any, and all
improvements and all other appurtenances and hereditaments thereunto
belonging. Subject to taxes and all covenants, conditions, restrictions,
easements, reservations, rights and rights-of-way of sight and/or record.
WITNESS our hands this �,�f day of n J1Ga• 2012.
RIE J. ROCKNAK
The ore ing instrument was acknowledged before me by Laurie J. Rocknak, this )0 day
of e i'E1.t, 2012.
H 6I 3 i.f:
a
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t
'7 MI Cont,.
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12,E C:,
Notary Public
Y PUBLIC
State of
?fy'o ring
0064
Exhibit C Bill of Sale
BILL OF SALE
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the undersigned hereby assigns, sells, and transfers to
HOWARD N. RHOADS AND CINDY L. RHOADS, their successors and assigns
forever, and warrants the title against all persons claiming under it, all of its right,
title and interest in the personal property described on the attached Exhibit "A."
This conveyance is made without warranty of merchantability and the personal
property described herein is sold in an "AS IS" condition.
I WITNESS WHEREOF, the undersigned have executed this Bill of Sale
this "day of 2012.
c4
aurie J. Rocknak
0064 C