Loan workouts—Sample modification agreement.

August 8, 2011

Loan workouts—Sample modification agreement.

Sample Modification Agreement

Recording Requested by and When Recorded Mail To

_________

_________

_________, California _________

Attention: _________, Esq.

Modification of Note, Deed of Trust and Other Loan Documents

[NOTICE TO BORROWER: THE DEED OF TRUST REFERRED TO BELOW SECURES PAYMENT OF A SHARED APPRECIATION LOAN WITHIN THE MEANING OF CALIFORNIA CIVIL CODE §1917 ET SEQ.]

This Modification of Note, Deed of Trust and Other Loan Documents (this “Agreement”) is executed as of [Date] _________ between _________, a _________ (“Lender”) and _________, a _________(“Borrower”), with reference to the following facts:

A. Borrower executed that certain Promissory Note dated _________, in the original principal amount of $_____(the “Note”), payable to Lender. The Note is secured by, among other documents, (i) a Deed of Trust and Security Agreement with Assignment of Rents and Fixture Filing [Dated _________] (the “Deed of Trust”), executed by Borrower, as Trustor, to _________, a _________, as Trustee, for the benefit of Lender, as Beneficiary, which Deed of Trust was recorded on [Date] _________, as Instrument No. _________ of the Official Records of _________ County, California (the “Official Records”) and (ii) an Assignment of Leases [Dated _________] (the “Assignment of Leases”) executed by Borrower, as assignor, to Lender, as assignee, which Assignment of Leases was recorded on [Date] _________ as Instrument No. _________ of the Official Records. The Deed of Trust encumbers a fee [leasehold] estate in certain real property located in _________ County, California, more particularly described therein, together with certain other personal property and other property as set forth therein (collectively, the “Property”).

B. The Note, the Deed of Trust, the Assignment of Leases, the [Unsecured] Indemnity Agreement (the “Indemnity Agreement”) executed by Borrower and _________ in favor of Lender dated _________, and the other Loan Documents (as such term is defined in the Deed of Trust), are referred to in this Agreement as the “Loan Documents.”

C. The parties here now wish to amend and modify the Loan Documents in certain respects.

In consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged here, the parties agree as follows:

1. Outstanding Balance. As of [Date] _________, the outstanding principal balance on the Note is $_____. Borrower acknowledges that it has no existing and asserted (and no basis for any unasserted) claims, counterclaims, defenses, or rights of setoff whatsoever with respect to any payment obligations under the Note or any other obligations under any of the Loan Documents, and any such claims, counterclaims, defenses, and rights of setoff are hereby waived and relinquished.

2. Representations of Borrower.

(a). Title to the Property. Borrower hereby represents and warrants that (i) Borrower lawfully possesses and holds fee simple [leasehold] title to all of the Property which is real property, and the Deed of Trust is a first and prior lien on that property; (ii) Borrower owns all of the Property which is personal property free and clear of any security agreements, reservations of title and conditional sales contracts; and (iii) there is no financing statement affecting any such personal property on file in any public office other than financing statements in favor of Lender.
(b). Environmental Matters. Borrower hereby acknowledges that Lender has made a written request to Borrower for information concerning the environmental condition of the Property, including, without limitation, (i) the presence, alleged presence, or threatened presence, and (ii) the release, alleged release, or threatened release, of Hazardous Materials (as such term is defined in the Indemnity Agreement) on, under, in, from, or about the Property. Borrower hereby represents, warrants, and certifies to Lender that neither Borrower nor any agent, affiliate, cotenant, partner, or joint venturer of Borrower has actual knowledge or notice of the presence, alleged presence, threatened presence, release, alleged release, or threatened release of Hazardous Materials on, under, in, from, or about the Property, except as has been disclosed to Lender in writing. As used here, the term “release” has the meaning assigned to such term in California Code of Civil Procedure §§ 726.5 and 736, as such Sections may be amended from time to time.

3. Modification of Loan Documents. The Loan Documents are modified as follows:

(a). The Note is modified as follows:

(b). The Deed of Trust is modified as follows:

(c). The Assignment of Leases is modified as follows:

(d). The Indemnity Agreement is modified as follows:

[Consider including the following sections 4, 5 and 6 for loans made before 1992.]

4. Additional Rights of Lender. Lender shall have the following rights in addition to its other rights set forth in the Deed of Trust and in the other Loan Documents, and Lender may, without notice to or demand upon Borrower, without releasing Borrower from any obligation under any of the Loan Documents and in addition to and without waiving its other rights under the Deed of Trust and the other Loan Documents, do the following:

(a). Waiver of Security. In accordance with California Code of Civil Procedure §726.5, as that Section may be amended from time to time, Lender may waive the security of the Deed of Trust and the other Loan Documents for any parcel of Property that is real property that is “environmentally impaired” or is an “affected parcel” (as those terms are defined in that Section), and as to any Property which is personal property attached to such parcel, and thereafter exercise against Borrower, to the extent permitted by such Section 726.5, the rights and remedies of an unsecured creditor, including reduction of Lender’s claim against Borrower to judgment, and any other rights and remedies permitted by law. Borrower waives the provisions of Section 726.5(c), as that Section may be amended from time to time, and acknowledges and agrees that this waiver was signed by Borrower for good and valuable consideration, as Borrower’s informed and voluntary act, after the occurrence of a default under the Loan Documents. Borrower shall pay all expenses, costs, and other amounts incurred by Lender in connection with any proceeding under California Code of Civil Procedure Section 726.5.

(i). Borrower and Lender acknowledge that pursuant to California Code of Civil Procedure §726.5, Lender’s rights under that Section are limited to instances in which Borrower or any affiliate, agent, cotenant, partner, or joint venturer of Borrower either (A) caused, contributed to, permitted, or acquiesced in the release (as defined in that Section 726.5) or threatened release of toxic or hazardous waste or waste products, or (B) had actual knowledge or notice of such release or threatened release before the execution and delivery of this Agreement and failed to disclose such release or threatened release to Lender in writing after Lender’s written request for information concerning the environmental condition of the Property, unless Lender otherwise obtained actual knowledge of such release or threatened release before the execution and delivery of this Agreement.

(b). Environmental Claims. In accordance with California Code of Civil Procedure §736, as that Section may be amended from time to time, Lender may bring an action for breach of contract against Borrower for breach of any “environmental provision” (as that term is defined in that Section 736) made by Borrower here, in the Indemnity Agreement, or any other Loan Document, for the recovery of damages (including attorneys’ fees and
costs) and/or for the enforcement of the environmental provision (including without limitation to recover all costs and expenses incurred by Lender in connection with any Remedial Work (as that term is defined in the Indemnity Agreement and in the Deed of Trust)) without foreclosing the Deed of Trust judicially or nonjudicially or accepting a deed or assignment in lieu of foreclosure. Borrower agrees to pay to Lender, upon Lender’s demand, all expenses, costs, and other amounts incurred by Lender in connection with any such action under that Section 736.

(c). Environmental Inspections. Lender shall have all rights of a lender under California Code of Civil Procedure Section 2929.5, as that Section may be amended from time to time. Borrower agrees to cooperate with Lender to facilitate those inspections. Borrower agrees to pay to Lender, upon Lender’s demand, all expenses, costs, or other amounts incurred by Lender in performing any inspection and/or testing for the purposes set forth in that Section 2929.5.

(d). Right to Appointment of a Receiver. Lender shall have all rights of a lender under California Code of Civil Procedure §564, as that Section may be amended from time to time. Borrower agrees to pay to Lender, upon Lender’s demand, all expenses, costs, and other amounts incurred by Lender in connection with any appointment of a receiver under that Section 564.

5. Personal Obligations of Borrower. Lender shall have the rights specified in Section 4 of this Agreement notwithstanding any limitations on the liability of Borrower contained here or in any other Loan Documents, including without limitation Section [_________] of the Deed of Trust, Section [_________] of the Note, or Section [_________] of the Assignment of Leases. In particular, without limiting the generality of the foregoing, Lender may, to the extent permitted under California Code of Civil Procedure §726.5, as that Section may be amended from time to time, exercise against Borrower the rights and remedies of an unsecured creditor, in which case Borrower promises to pay to Lender, on demand by Lender following such exercise, all amounts owed to Lender under any Loan Document, and Borrower agrees that it will be personally liable for the payment of all such sums.

6. Indemnity Agreement and Environmental Provisions. Before the reconveyance of the lien of the Deed of Trust, or the extinguishment of the lien by foreclosure or action in lieu thereof, the Indemnity Agreement shall be secured by the Deed of Trust, and the Deed of Trust is hereby modified to secure the Indemnity Agreement; provided that the Indemnity Agreement shall survive such reconveyance or extinguishment and thereafter be unsecured. Notwithstanding the foregoing or any provisions in the Indemnity Agreement, the Deed of Trust or the other Loan Documents restricting the right to bring certain claims with respect to environmental provisions until after the Deed of Trust has been reconveyed or extinguished by foreclosure or action in lieu thereof, pursuant to California Code of Civil Procedure §736, as that Section may be amended from time to time, before such reconveyance or extinguishment Lender may enforce the Indemnity Agreement or any “environmental provision” (as that term is defined in that Section 736) of the Deed of Trust or the other Loan Documents without foreclosing the Deed of Trust judicially or nonjudicially or accepting a deed or assignment in lieu of foreclosure. Notwithstanding any provision in any Loan Document to the contrary, the Indemnity Agreement shall be a Loan Document for all purposes under the Note, the Deed of Trust, the Assignment of Leases, and each of the other Loan Documents.

7. Conforming Modifications. Each of the Note, the Deed of Trust, and the other Loan Documents is hereby modified to provide that all references there to the “Note,” the “Deed of Trust” or any other “Loan Document” shall be deemed to refer to the Note, the Deed of Trust, and any such other Loan Document as amended here. The Deed of Trust is modified to provide that the Deed of Trust secures the Note, as amended here, in addition to and not in limitation of all other indebtedness and obligations stated in the Deed of Trust to be secured. It is the intention of the parties that this Agreement shall be deemed to form a part of the Note and a part of the Deed of Trust and shall always be construed as amending the Note and the Deed of Trust; except as specifically supplemented and amended here, the Note and the Deed of Trust shall each remain unaffected and unchanged by reason of this Agreement in that the Deed of Trust as amended shall remain one deed of trust with one power of sale.

8. Release of Claims.

(a). Release of All Claims. Borrower, on behalf of itself, its general partners, its affiliates and its and their successors and assigns (collectively, the “Releasing Parties”), releases and forever discharges Lender and all of its
subsidiaries, affiliates, divisions, officers, directors, employees, agents, attorneys, advisors, successors, and assigns (collectively, the “Releasing Parties”) from any and all claims, demands, debts, liabilities, contracts, obligations, accounts, torts, causes of action, or claims for relief of whatever kind or nature, whether known or unknown, whether suspected or unsuspected, that the Releasing Parties may have or which may hereafter be asserted or accrue against Released Parties, or any of them, resulting from or in any way relating to any act or omission done or committed by Released Parties, or any of them, before the date here.

(b). Release Includes Unknown Claims. The releases contained in paragraph (a) above and in this paragraph (b) apply to all claims that the Releasing Parties have or which may arise against the Released Parties, or any of them, as a result of acts or omissions occurring before the date here, whether or not known or suspected by the parties. Borrower expressly acknowledges that although it may be that ordinarily a general release does not extend to claims which the releasing party does not know or suspect to exist in his or her favor, which if known by him or her must have materially affected his or her settlement with the party released, it has carefully considered and taken into account in determining to enter into this Agreement the possible existence of such unknown losses or claims.

(i). Without limiting the generality of the foregoing, Borrower expressly waives any and all rights conferred upon it by any statute or rule of law which provides that a release does not extend to claims which the claimant does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the released party, including, without limitation, the following provision of California Code of Civil Procedure §1542:

“A general release does not extend to claims which the creditor does not know or suspect to exist in his [or her] favor at the time of executing the release, which if known by him [or her] must have materially affected his [or her] settlement with the debtor.”

(c). Complete Defense. This release by Releasing Parties shall constitute a complete defense to any claim, cause of action, defense, contract, liability, indebtedness, or obligation released pursuant to this release. Nothing in this release shall be construed as (or shall be admissible in any legal action or proceeding as) an admission by Lender or any other Released Party that any defense, indebtedness, obligation, liability, claim, or cause of action exists which is within the scope of those released here.

9. No Rights Conferred on Others. Nothing contained in this Agreement or the Loan Documents shall be construed as giving any person, other than the parties here, any right, remedy, or claim under or in respect of this Agreement or the Loan Documents except for the rights granted to the Released Parties in Section 8 here.

10. Confirmation of Obligations. Except to the extent modified by this Agreement, Borrower confirms each of the covenants, agreements, and obligations of Borrower set forth in the Loan Documents. Borrower acknowledges and agrees that, if and to the extent that Lender has not previously required strict compliance with the performance by Borrower of those covenants, agreements, and obligations, such action or inaction shall not constitute a waiver of, or otherwise affect in any manner, Lender’s rights and remedies under the Loan Documents, as amended here, including the right to require performance of those covenants, agreements, and obligations strictly in accordance with the terms and provisions there. Lender reserves all rights which it has against any guarantor or endorser of the Note.

11. Waiver of Certain Rights. In consideration of Lender’s agreements here, to the fullest extent permitted by law, Borrower expressly waives and agrees not to assert Cal Civ Proc Code §§580a, 580b, 580d, or 726, or all of them, as each may be amended and modified from time to time, as a defense to its obligations under the Note and the other Loan Documents.

12. Non-Impairment. Except as expressly provided in this Agreement, nothing contained in this Agreement shall (a) alter or affect any provision, condition, or covenant contained in the Note, the Deed of Trust, or the other Loan Documents or affect or impair any rights, powers, or remedies under it, it being the intent here that the provisions of the Note, the Deed of Trust, and the other Loan Documents shall continue in full force and effect except as expressly modified here, or (b) be deemed or construed to be an impairment of the lien of the Deed of Trust, and the lien of the Deed of Trust shall remain a first lien encumbering the property covered by the Deed of Trust.
13. Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed and delivered to Lender will be deemed to be an original, and all of which, taken together, will be deemed to be one and the same instrument.

14. Prior Agreements. The Loan Documents, including this Agreement (a) integrate all the terms and conditions mentioned in or incidental to the Loan Documents; (b) supersede all oral negotiations and prior and other writings with respect to the subject matter thereof; and (c) are intended by the parties as the final expression of the agreement with respect to the terms and conditions set forth in the Loan Documents and as the complete and exclusive statement of the terms agreed to by the parties. If there is any conflict between the terms, conditions, and provisions of this Agreement and those of any of the Loan Documents, the terms, conditions, and provisions of this Agreement shall prevail.

15. Legend. Lender may place an appropriate legend on the Note indicating the existence of this Agreement.

16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. If any court of competent jurisdiction determines any provision of this Agreement or any of the Loan Documents to be invalid, illegal, or unenforceable, that portion shall be deemed severed from the rest, which shall remain in full force and effect as though the invalid, illegal, or unenforceable portion had never been a part hereof or of the Loan Documents.

In witness, the parties have executed this Agreement as of the date first set forth above.

_________,

a _________,

By _________

a _________

By _________

Its _________

_________,

a _________,

By _________

a _________

By _________

By _________

 

Download Loan workouts—Sample modification agreement Word Format

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