HomeMy WebLinkAbout904876WHEN RECORDED MAIL TO:
Community First National Bank
P. O. Box 6080
Fargo, ND 58108-6080
RECEIVED 11/30/2004 at 3:56 PM
RECEIVING # 904876
BOOK: 573 PAGE: 627
JEANNE WAGNER
LINCOLN COUNTY CLERK. KEMMERER, WY
SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY
ASSIGNMENT OF RENTS
THIS ASSIGNMENT OF RENTS dated November 30, 2004, is mz~(le and executed between Michael R Decker and
Debra M Decker, husband and wife, whose address is PO Box 395, Labarge, WY 83123 (referred to below as
"Grantor") and COMMUNITY FIRST NATIONAL BANK, whose address is 801 Pine Ave. , Kemmerer, WY 83101
{referred to below as "Lender").
ASSIGNMENT. For valuable consideration, Grantor hereby assig~ts, grants a continuing security interest in, and
conveys to Lender all of Grantor's right, title, and interest in and to the Rents from the following described Property
located in Lincoln County, State of Wyoming:
Lots 7 and 8 of Block 2 of the Second Amended Plat of Birch Creek Commercial Park to the Town of LaBarge,
Lincoln County, Wyoming as described on the official plat No. 286 filed June 2, 1985 as Instrument No.
587719 of the records of the Lincoln County Clerk.
The Property or its address is commonly known as 130 West Birch Creek Drive, LaBarge, WY 83123.
THIS ASSIGNMENT IS GIVEN TO SECURE (1) PAYMENT OF THE INDEBTEDNESS AND (2) PERFORMANCE OF ANY AND ALL OBLIGATIONS
OF GRANTOR UNDER THE NOTE, THIS ASSIGNMENT, AND THE RELATED DOCUMENTS. THIS ASSIGNMENT IS GIVEN AND ACCEPTED ON
THE FOLLOWING TERMS:
PAYMENT AND PERFORMANCE. Except as otherwise provided in this Assignn~.~l ()[ any Related Documents Grantor shall pay to Lender all
amounts secured by this Assignment as they become due, and shall strictly perh~f~ aH of Grantor's obligations under this Assignment. Unless
and until Lender exercises its right to collect the Rents as provided below and so I~,~j as there is no default under this Assignment, Grantor may
remain in possession and control of and operate and manage the Property and coH,~'~:t H~o Rents, provided that the granting of the right to collect
the Rents shall not constitute Lender's consent to the use of cashcollatera ina h~)krul~tcy proceeding.
GRANTOR'S REPRESENTATIONS AND WARRANTIES. Grantor warrants that:
Ownership. Grantor is entitled to receive the Rents free and clear of all rig~[~; ~ans, liens, encumbrances, and claims except as disclosed
to and accepted by Lender in writing.
Right to Assign. Grantor has the full right, power and authority to enter H)[~) this Assignment and to assign and convey the Rents to
Lender.
No Prior Assignment. Grantor has not previously assigned or conveyed the R,:~t~ to any other person by any instrument now in force.
No Further Transfer. Grantor will not sell, assign, encumber, or otherWh~L dh~l~ose of any of Grantor's rights in the Rents except as
provided in this Assignment.
LENDER'S RIGHT TO RECEIVE AND COLLECT RENTS. Lender shall have the righ~ ~t any time, and even though no default shall have occurred
under this Assignment, to collect and receive the Rents. For this purpose, Lend~r ~ hereby g~ven and granted the following rights, powers and
authority:
Notice to Tenants. Lender may send notices to any and all tenants of the P,, I)~'.~tv advising them of this Assignment and directing a Rents
to be paid directly to Lender or Lender's agent.
Enter the Property. Lender may enter upon and take possession of the Proi)~rt¥; demand, collect and receive from the tenants or from any
other persons liable therefor, all of the Rents; institute and carry on all I~j,~l I~roceedings necessary for the protection of the Property,
including such proceedings as may be necessary to recover possession of [I)~.. P~p~,rt¥; collect the Rents and remove any tenant or tenants
or other persons from the Property.
Maintain the Property. Lender may enter upon the Property to maintain the Ih~perW and keep the same in repair; to pay the costs thereof
and of all services of all employees, including their equipment, and of all (':~,[l[inuing costs and expenses of maintaining the Property in
proper repair and condition, and also to pay all taxes, assessments and ?~..~h,.~ utilities, and the premiums on fire and other insurance
effected by Lender on the Property.
Compliance with Laws. Lender may do any and all things to execute and c~nl~ly with the laws of the State of Wyoming and also all other
laws, rules, orders, ordinances and requirements of all other governmental a!~,~,:ies affecting the Property.
Lease the Property. Lender may rent or lease the whole or any part of thu P~operty for such term or terms and on such conditions as
Lender may deem appropriate.
Loan No: 3888603555
ASSIGNMENT OF RENTS
(Continued)
8
Page 2
Employ Agents. Lender may engage such agent or agents as Lender may du,,~ ~q~prcpnate, either in Lender's name or in Grantor's name,
to rent and manage the Property, including the collection and application of Runts.
Other Acts. Lender may do all such other things and acts with respect t~. ~,,, Property as Lender may deem appropriate and may act
exclusively and solely in the place and stead of Grantor and to have all of the ewers of Grantor for the purposes stated above.
No Requirement to Act. Lender shall not be required to do any Qf the [o~!]~.~g acts or things, and the fact that Lender shall have
performed one or more of the foregoing acts or things shall not reqdire Lender ~ do any other specific act or thing.
APPLICATION OF RENTS. All costs and expenses incurred by Lender n connect.)~) vwtn the Property shall be for Grantor's account and Lender
may pay such costs and expenses from the Rents. Lender, in its sole discretion, sh,dl determine the application of any and all Rents received by
it; however, any such Rents received by Lender which are not applied to such ~:,~,~,[>, and expenses shall be applied to the Indebtedness All
expenditures made by Lender under this Assignment and not reimbursed from the H~ts shall become a part of the Indebtedness secured by this
Assignment, and shall be payable on demand, with interest at the Note rate from (~ of expenditure until paid.
FULL PERFORMANCE. If Grantor pays all of the Indebtedness when due and otl~e~ ~',~;e uerforms all the obligations imposed upon Grantor under
this Assignment, the Note, and the Related Documents, Lender shall execute al~(J d[diver to Grantor a suitable satisfaction of this Assignment
and suitable statements of termination of any financing statement on file eviden~:~)g Lender's security interest in the Rents and the Property.
Any termination fee required by law shall be paid by Grantor, if permitted by applic~d)h,~ law.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would ~;~[~'rially affect Lender's interest in the Property or if Grantor
fails to comply with any provision of this Assignment or any Related Documents, ,~cluding but not limited to Grantor's failure to discharge or
pay when due any amounts Grantor is required to discharge or pay under this A,~,~,ignment or any Related Documents, Lender on Grantor's
behalf may (but shall not be obligated to) take any action that Lender deems at~l),,)l,h~te, including but not limited to discharging or paying all
taxes, liens, security interests, encumbrances and other claims, at any time levied ~ placed on the Rents or the Property and paying all costs for
insuring, maintaining and preserving the Property. All such expenditures incurred ('~r t~aieJ by Lender for such purposes will then bear interest at
the rate charged under the Note from the date incurred or paid by Lender to the d~t, ()f repayment by Grantor. All such expenses will become a
part of the Indebtedness and, at Lender's option, will {A) be payable on demand; (R) be added to the balance of the Note and be apportioned
among and be payable with any installment payments to become due during eithe[ (1) the term of any applicable insurance policy; or (2) the
remaining term of the Note; or (C) be treated as a balloon payment which will bu (h~(,. ~r~d payable at the Note's maturity. The Assignment also
will secure payment of these amounts. Such right shall be in addition to all oth,~r riuhts and remedies to which Lender may be entitled upon
Default.
DEFAULT. Each of the following, at Lender's option, shall constitute an Event of l-)~h~ult under this Assignment:
Payment Default. Grantor fails to make any payment when due under the Indtd~tedness.
Other Defaults. Grantor fails to comply with or to perform any other term, ,',hlitj~tion, covenant or condition contained in this Assignment
or in any of the Related Documents or to comply with or to perform any tt:~m, obligation, covenant or condition contained in any other
agreement between Lender and Grantor.
Default on Other Payments. Failure of Grantor within the time required by thi~; Assignment to make any payment for taxes or insurance, or
any other payment necessary to prevent filing of or to effect discharge of any hen.
Default in Favor of Third Parties. Grantor defaults under any loan, extension (,l ~:r~;dit, security agreement, purchase or sales agreement, or
any other agreement, in favor of any other creditor or person that may mat,:tt,dty affect any of Grantor's property or Grantor's ability to
perform Grantor's obligations under this Assignment or any of the Related Do~,¢~e~ts.
Environmental Default. Failure of any party to comply with or perform when ~t~.]e any term, obligation, covenant or condition contained in
any environmental agreement executed in connection with the Property.
False Statements. Any warranty, representation or statement made or furni~;I..~d to Lender by Grantor or on Grantor's behalf under this
Assignment or the Related Documents is false or misleading in any matutinal respect, either now or at the time made or furnished or
becomes false or misleading at any time thereafter.
Defective Collateralization. This Assignment or any of the Related Document,,, ~.~,'~ses to be in full force and effect (including failure of any
collateral document to create a valid and perfected security interest or lien) at ,~;, time and for any reason.
Death or Insolvency. The death of Grantor, the insolvency of Grantor, the apl>~d~tment of a receiver for any part of Grantor's property, any
assignment for the benefit of creditors, any type of creditor workout, or the ,:o~mnencement of any proceeding under any bankruptcy or
insolvency laws by or against Grantor.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or forf¢~itt~re proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Grantor or by any gov,,~[~t,~ntal agency against the Rents or any property securing
the Indebtedness. This includes a garnishment of any of Grantor's accounts, h~:h~ding deposit accounts, with Lender. However, this Event
of Default shall not apply if there is a good faith dispute by Grantor as to th,, v,didity or reasonableness of the claim which is the basis of
the creditor or forfeiture proceeding and if Grantor gives Lender written noti~:¢; c>f the creditor or forfeiture proceeding and deposits with
Lender monies or a surety bond for the creditor or forfeiture proceeding, in a~ ~ount determined by Lender, in its sole discretion, as being
an adequate reserve or bond for the dispute.
Property Damage or Loss. The Property is lost, stolen, substantially damaged, ~;~ld, or borrowed against.
Events Affecting Guarantor. Any of the preceding events occurs with respect to a~w guarantor, endorser, surety, or accommodation party
of any of the Indebtedness or any guarantor, endorser, surety, or accom~,,,t~t~c~n party dies or becomes incompetent, or revokes or
disputes the validity of, or liability under, any Guaranty of the Indebtedness. I~ H~c event of a death, Lender, at its option, may, but shall
not be required to, permit the guarantor's estate to assume uncondition~dly tile obligations arising under the guaranty in a manner
satisfactory to Lender, and, in doing so, cure any Event of Default.
Adverse Change. A material adverse change occurs in Grantor's financi~d ,:¢~ndition, or Lender believes the prospect of payment or
performance of the Indebtedness is impaired.
Insecurity. Lender in good faith believes itself insecure.
RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of any Event of Def,~tdt and at any time thereafter, Lender may exercise any one
Loan No: 3888603555
ASSIGNMENT OF RENTS
(Continued)
0629
Page 3
or more of the following rights and remedies, in addition to any other rights or rem~;d~us provided by law:
Accelerate Indebtedness. Lender shall have the right at its option without not.:,; to Grantor to declare the entire Indebtedness immediately
due and payable, including any prepayment penalty which Grantor would be r.q.irud to pay.
Collect Rents. Lender shall have the right, without notice to Grantor, to tak. t~ssession of the Property and collect the Rents, including
amounts past due and unpaid, and apply the net proceeds, over and ~bove Le~.h,r's costs, against the Indebtedness. In furtherance of this
right, Lender shall have all the rights provided for in the Lender's' Right to H,_..uive and Collect Rents Section, above. If the Rents are
collected by Lender, then Grantor irrevocably designates Lender as Grantor's ~dtorney-in-fact'to endorse instruments received in payment
thereof in the name of Grantor and to negotiate the same and collect the i~r[)~:eeds. Payments by tenants or other users to Lender in
response to Lender's demand shall satisfy the obligations for which the pav~n.~Us are made, whether or not any proper grounds for the
demand existed. Lender may exercise its rights under this subparagraph either ,~ i)urson, by agent, or through a receiver.
Appoint Receiver. Lender shall have the right to have a receiver appointed [~, t~,ke possession of all or any part of'the Property, with the
power to protect and preserve the Property, to operate the Property precu~m~j foreclosure or sale, and to collect the Rents from the
Property and apply the proceeds, over and above the cost of the receivership, ~-.jainst the Indebtedness. The receiver may serve without
bond if permitted by law. Lender's right to the appointment of a receiver ,~h,,ll exist whether or not the apparent value of the Property
exceeds the Indebtedness by a substantial amount. Employment by Lender sh~dl ~t disqualify a person from serving as a receiver.
Other Remedies. Lender shall have a other rights and remedies provided in tt.~, /',s,';ignment or the Note or by law.
Election of Remedies. Election by Lender to pursue any remedy shall not e×.lude pursuit of any other remedy, and an election to make
expenditures or to take action to perform an obligation of Grantor under this 2,~.~i(jnment, after Grantor's failure to perform, shall not affect
Lender's right to declare a default and exercise its remedies.
Attorneys' Fees; Expenses. If Lender institutes any suit or action to enforce a~¥ ~1 the terms of this Assignment, Lender shall be entitled to
recover such sum as the court may adjudge reasonable as attorneys' fees at t~i.[ and upon any appeal. Whether or not any court action is
involved, and to the extent not prohibited by law, all reasonable expenses Le.~,l,;r incurs that in Lender's opinion are necessary at any time
for the protection of its interest or the enforcement of its rights shall become ,, I""[ of the Indebtedness payable on demand and shall bear
interest at the Note rate from the date of the expenditure until repaid. Exl.,~,.'.es covered by this paragraph include, without limitation,
however subject to any limits under applicable law, Lender's reasonable atton~,;¥s' fees and Lender's legal expenses whether or not there is
a lawsuit, including reasonable attorneys' fees and expenses for bankrupl,:V proceedings (including efforts to modify or vacate any
automatic stay or injunction), appeals, and any anticipated post-judgment colh:,.t,~,n services, the cost of searching records, obtaining title
reports (including foreclosure reports), surveyors' reports, and appraisal f~,;..,, title insurance, and fees for the Trustee, to the extent
permitted by applicable law. Grantor also will pay any court costs, in addition [~ ~11 other sums provided by law.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part ,~f ~l~is Assignment:
Amendments. This Assignment, together with any Related Documents, con~[il~[us the entire understanding and agreement of the parties
as to the matters set forth in this Assignment. No alteration of or amendment t. this Assignment shall be effective unless given in writing
and signed by the party or parties sought to be charged or bound by the alterali~,~ or amendment.
Caption Headings. Caption headings in this Assignment are for convenience I~.~ p~ses only and are not to be used to interpret or define the
provisions of this Assignment.
Governing Law. This Assignment will be governed by, construed and enforced in accordance with federal law and the laws of the State of
Wyoming. This Assignment has been accepted by Lender in the State of Wyomi~g.
Choice of Venue. If there is a lawsuit, Grantor agrees upon Lender's reques[ [~, ~;ubmit to the jurisdiction of the courts of Lincoln County,
State of Wyoming.
Joint and Several Liability. All obligations of Grantor under this Assignment ~,h;dl be .joint and several, and all references to Grantor shall
mean each and every Grantor. This means that each Grantor signing below is ~.,,q)onsible for all obligations in this Assignment.
Merger. There shall be no merger of the interest or estate created by this a.~;i~j[~m~nt with any other interest or estate in the Property at
any time held by or for the benefit of Lender in any capacity, without the writt~:~ ~;(.~sent of Lender.
Interpretation. (1') In all cases where there is more than one Borrower or Gr~.~[(~r, then all words used in this Assignment in the singular
shall be deemed to have been used in the plural where the context and cons[ru(:tio~ so require. (2) If more than one person signs this
Assignment as "Grantor," the obligations of each Grantor are joint and several. This means that if Lender brings a lawsuit, Lender may sue
any one or more of the Grantors. If Borrower and Grantor are not the same p~.son, Lender need not sue Borrower first, and that Borrower
need not be joined in any lawsuit. (3) The names given to paragraphs or se(:[i(~r~s in this Assignment are for convenience purposes only.
They are not to be used to interpret or define the provisions of this Assignment.
No Waiver by Lender. Lender shall not be deemed to have waived any rights u~.h~.r this Assignment unless such waiver is given in writing
and signed by Lender. No delay or omission on the part of Lender in exerci~,i~!~ any right shall operate as a waiver of such right or any
other right. A waiver by Lender of a provision of this Assignment shall not i;~uj~dice or constitute a waiver of Lender's right otherwise to
demand strict compliance with that provision or any other provision of this A~signment. No prior waiver by Lender, nor any course of
dealing between Lender and Grantor, shall constitute a waiver of any of Lend.r',~ ri(jhts or of any of Grantor's obligations as to any future
transactions. Whenever the consent of Lender is required under this Assign~.~.~t, the granting of such consent by Lender in any instance
shall not constitute continuing consent to subsequent instances where such c~.~sent is required and in all cases such consent may be
granted or withheld in the sole discretion of Lender.
Notices. Any notice required to be given under this Assignment shall be giw-~ i~ writing, and shall be effective when actually delivered,
when actually received by telefacsimile (unless otherwise required by law), w,h,,~ deposited with a nationally recognized overnight courier,
or, if mailed, when deposited in the United States mail, as first class, certified (,r r~'Oistered mail postage prepaid, directed to the addresses
shown near the beginning of this Assignment. Any party may change its ~,d(Ire5s for notices under this Assignment by giving formal
written notice to the other parties, specifying that the purpose of the notice is t<) change the party's address. For notice purposes, Grantor
agrees to keep Lender informed at all times of Grantor's current address. [h)h~¢;~; otherwise provided or required by law, if there is more
than one Grantor, any notice given by Lender to any Grantor is deemed to be ~.~[~ce uiven to all Grantors.
Powers of Attorney. The various agencies and powers of attorney conveyed (.) Lender under this Assignment are granted for purposes of
security and may not be revoked by Grantor until such time as the same are rer..,~ced by Lender.
0 904Sr76
koan ~o: 3888603§5§
ASSIGNMENT OF RENTS
(Continued)
Page 4
Severability. If a court of competent jurisdiction finds any provision of this A,';siunment to be illegal, invalid, or unenforceable as to any
person or c~rcumstance, that finding shall not make the offending provis~oc ~lle(j~d, invalid, or unenforceable as to any other person or
circumstance. If feasible, the offending provision shall be considered mod~hcd so that it becomes legal, valid and enforceable. If the
offending provision cannot be so modified, it shall be considered deleted fr;-,r this Assignment. Unless otherwise required by law, the
illegality, invalidity, or unenforceability of any provision of this Assignment sl/;dl ~t affect the regality, validity or enforceability of any other
provision of this Assignment.
Successors and Assigns. Subject to any limitations stated in this Assignme~)i .n transfer of.Gi'antor's interest, this Assignment shall be
binding upon and inure to the benefit of the parties, their successors and assiu~; ~f ownersh p of the Property becomes vest.ed in a person
other than Grantor, Lender, without notice to Grantor, may deal with Gra.h~r's successors with reference to this Assignment and the
Indebtedness by way of forbearance or extension without releasing Grantor h~m the obligations of this Assignment or liability under the
Indebtedness.
Time is of the Essence. Time is of the essence in the performance of this Assiurm~ent.
Waive Jury. All parties to this Assignment hereby waive the right to any jury tria in any action, proceeding, or counterclaim brought by any
party against any other party.
WAIVER OF HOMESTEAD EXEMPTION. Grantor hereby releases and waives all , jr~ts and benefits of the homestead exemption laws of the
State of Wyoming as to all Indebtedness secured by this Assignment.
DEFINITIONS, The following capitalized words and terms shall have the following ~.~.m-gs when used in this Assignment. Unless specifically
stated to the contrary, all references to dollar amounts shall mean amounts in lawh~t ~oney of the United States of America. Words and terms
used in the singular shall include the plural, and the plural sha include the singula[ ,.~ the context may require. Words and terms not otherwise
defined in this Assignment shall have the meanings attributed to such terms in the th~d<)rm Commercial Code:
Assignment. The word "Assignment" means this ASSIGNMENT OF RENTS. a~; uus ASSIGNMENT OF RENTS may be amended or modified
from time to time, together with all exhibits and schedules attached to this ASSIGNMENT OF RENTS from time to time.
Borrower. The word "Borrower" means Michael R Decker and Debra M Decker.
Default. The word "Default" means the Default set forth in this Assignment n th,: section titled "Default".
Event of Default. The words "Event of Default" mean any of the events of deh~t~tt set forth in this Assignment in the default section of this
Assignment.
Grantor. The word "Grantor" means Michael R Decker and Debra M Decker.
Guaranty. The word "Guaranty" means the guaranty from guarantor, en.~,r~e~, sure~y, or accommodation party to Lender, including
without limitation a guaranty of all or part of the Note.
Indebtedness. The word "Indebtedness" means all principal, interest, anc~ o~r~:~ .mounts, costs and expenses payable under the Note or
Related Documents. together with all renewals of, extensions of, modificad,)n.~ of, consolidations of and substitutions for the Note or
Related Documents and any amounts expended or advanced by Lender to dtscl),r(Je Grantor's obligations or expenses incurred by Lender to
enforce Grantor's obligations under this Assignment, together with interest on su~ h amounts as provided in this Assignment.
Lender. The word "Lender" means COMMUNITY FIRST NATIONAL BANK. ~ts su(:cessors and assigns.
Note. The word "Note" means the promissory note dated November 30, 2004 in the original principal amount of $167,666,41
from Grantor to Lender, together with all renewals of, extensions of. modifications of, refinancings of, consolidations of, and substitutions
for the promissory note or agreement.
Property. The word "Property" means all of Grantor's right, title and interest ~ a.¢~ to all the Property as described in the "Assignment"
section of this Assignment.
Related Documents. The words "Related Documents" mean all promissory '~tes, credit agreements, loan agreements, environmental
agreements, guaranties, security agreements, mortgages, deeds of trust, sec~ri~y deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in cunnccuon with the Indebtedness.
Rents. The word "Rents" means all of Grantor's present and future rights, titl. ;.~d interest in, to and under any and all present and future
leases, including, without limitation, all rents, revenue, income, issues, royalt..~s nonuses, accounts receivable, cash or security deposits,
advance rentals, profits and proceeds from the Property, and other payment,.; ;~n¢] benefits derived or to be derived from such leases of
every kind and nature, whether due now or later, including without limitatio~ ~rantor's right to enforce such leases and to receive and
collect payment and proceeds thereunder.
THE UNDERSIGNED ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS ASSIGNMENT. THIS DOCUMENT IS EXECUTED ON
NOVEMBER 30, 2004.
GRANTOR:
X ~(
Debra M Decker
Loan
ASSIGNMENT OF RENTS
(Continued)
Page 5
INDIVIDUAL ACKNOWLEDGMENT
STATE OF
couNTY
Notary Public in and for the State of ~t~ M~tO V~, t" ~/-
On this day before me, the undersigned Notary Public, personally appeared Michael F{ Decker and Debra M Decker, husband and wife, to me
known to be the individuals described in and who executed the ASSIGNMENT OF HI~NTS. and acknowledged that they signed the Assignment
as their free and voluntary act and deed, for the uses and purposes therein mention(;d
Given under my hand and official seal this .._~{~) day of .~ 0 ti ~ V,~ ~ ~ , 20 0 ~
My commiss,on expires ; I - I ~,~=~O0 ~