Fill and Sign the Deed Lieu Form 497299791

Deed in Lieu of Foreclosure Agreement Agreement made on the ________________ (date) , by and between _________________________________ (Names of Borrowers) of _______________ ________________________________________________________ (street address, city, state, zip code) , hereinafter jointly and severally referred to herein as Borrower , and _____________________ (Name of Lender) , a ____________________ (type of entity) organized and existing under the laws of the state of ________________, with its principal office located at _______________________________________________ ____________________________ (street address, city, state, zip code) , referred to herein as Lender . Whereas , Borrower owns certain real and personal property located at ______________________________________________________________________ (street address, city, state, zip code) , as more fully described on Exhibit A attached hereto and made a part hereof, hereinafter referred to as the Premises ; and Whereas , to evidence and secure a certain loan (the Loan ) made by the Lender to the Borrower, the Borrower executed and delivered to the Lender a Promissory Note (the Note ) and a Deed of Trust dated the _____ day of _______________, 20______, and recorded as Instrument No.______________ in Book __ Page of the Official Records of the County Clerk and Recorder, in County, State of Colorado , said Note and Deed of Trust being hereinafter referred to as the Loan Documents ; and Whereas , Borrower defaulted in performing his/her obligations under the Loan Documents by failing to pay installments of principal and interest and the real estate taxes on the Premises; and Whereas , all notice provisions contained in the Loan Documents have been compiled with, all grace periods have either expired or been waived by the Borrower, and the Lender has declared the principal, interest, and all other indebtedness owing by the Borrower to the Lender pursuant to the Loan Documents (hereinafter called the Indebtedness ) to be due and payable; and Whereas , Borrower has determined that the fair market value of the Premises is less than the amount of the Indebtedness; and Whereas , Borrower has requested that the Lender resolve the default of the Borrower under the Loan Documents by agreeing to accept a conveyance of the Premises to the Lender in return for the satisfaction of the Indebtedness and other obligations under the Loan Documents on the terms and conditions set forth in this Agreement. Now, therefore, for and in consideration of the mutual covenants contained in this agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: Section 1. Conveyances to the Lender. On the Closing Date (as hereafter defined), the Borrower shall convey or cause to be conveyed to the Lender absolutely and free of any right of redemption or other right or interest of the Borrower, or anyone claiming by or through the Borrower, the following real and personal property: (a) all of the land situated at _____________________________________________________________ _________________ (street address, city, state, zip code) , described in Exhibit A attached, together with all buildings, fixtures, and other improvements now or hereafter located thereon and all appurtenances thereunto belonging; and (b) all tangible and intangible personal property which is owned by the Borrower, or any person claiming by or through the Borrower located or in or used in connection with the ownership, financing, operation, and maintenance of the Premises, which is owned by the Borrower, or any person claiming by or through the Borrower acquired for installation or use in connection therewith, wherever located. Section 2. Consideration. A. Subject to the satisfaction by the Borrower of the conditions herein contained, the Lender shall accept the conveyance of the Premises to the Lender in full, final, and complete settlement, accord, and satisfaction of the Indebtedness and the other obligations of the Borrower owing under the Loan Documents. B. Provided that the Borrower perform their respective obligations under this Agreement, the Lender agrees to pay the sum of ____________ Dollars ($____________) to the Borrower in two (2) installments. The first installment in the amount of ____________ Dollars ($____________) to be paid on the Closing Date and the balance of ____________ Dollars ($____________) to be paid on the later of: (i) the satisfaction of all obligations owing by the Borrower to the Lender under the terms of this Agreement; or (ii) that date which is ninety-one (91) calendar days after the Closing Date. C. The Borrower represents that the Indebtedness is no less than ____________ Dollars ($____________) in principal and accrued but unpaid interest and attorneys' fees owing by the Borrower to the Lender. D. The Borrower represents that it has made an independent determination of the fair market value of the Premises and as a result thereof, it has concluded that: (i) the amount of the Indebtedness substantially exceeds the fair market value of the Premises; (ii) the Premises is unable to generate sufficient income to repay the Indebtedness in accordance with the terms of the Loan Documents; and (iii) the consideration to be received by the Borrower pursuant to the terms of this Agreement represents the payment by the Lender of full, fair, and adequate consideration for the Premises. Section 3. Closing Date A. The Closing shall occur on or before 5:00 p.m. on __________________ (date) , (the Closing Date) at the offices of ___________________________________________________________ (location) . B. If, for any reason except the Lender's breach of this Agreement, the conditions precedent to closing required to be performed by the Borrower under this Agreement have not been performed and the transactions consummated on or before the Closing Date, the Lender, at the Lender's sole option, may by written notice to the Borrower: (i) extend the Closing Date to a date provided in such written notice; or (ii) terminate all of the obligations of the Lender under this Agreement and proceed to exercise or renew the exercise of all of the rights and remedies held by the Lender under the Loan Documents and applicable law. Section 4. Closing Documents. On the Closing Date, the Borrower will deliver or cause to be delivered to the Lender the following items which will be duly executed and acknowledged: A. A Quitclaim Deed in the form of Exhibit B attached hereto and made a part hereof conveying to the Lender good and marketable fee simple title to the Premises subject only to title exceptions described on Exhibit C attached hereto and made a part hereof ; B. A Bill of Sale in substantially the form of Exhibit D attached hereto and made a part hereof conveying to the Lender marketable title to the personal property therein described, free and clear of all liens and encumbrances; C. A Consent Judgment duly executed and acknowledged by the Borrower and such further documents as the Lender might reasonably request to facilitate the foreclosure of the liens and security interests created by the Loan Documents, and D. Such other conveyance documents as might be reasonably requested by the Lender to transfer absolute ownership of all of the property interests comprising the Project to the Lender. Section 5. Exchange of Releases A. Effective on the Closing Date and only if the transactions contemplated by this Agreement are consummated, the Borrower shall release, acquit, and forever discharge the Lender and the Lender's subsidiaries, affiliates, officers, directors, agents, and employees (hereafter collectively called the Lender and its Affiliates) from any and all claims, demands, debts, actions, causes of action, suits, contracts, agreements, obligations, accounts, defenses, offsets against the Indebtedness, and liabilities of any kind or character whatsoever, known or unknown, suspected or unsuspected, in contract or in tort, at law or in equity, including without implied limitation such claims and defenses as fraud, mistake, duress, and usury, which the Borrower ever had, now has, or might hereafter have against the Lender and its Affiliates, jointly or severally, for or by reason of any matter, cause, or thing whatsoever occurring prior to the Closing Date, which relates to in whole or in part, directly or indirectly: (i) the Loan; (ii) the Loan Documents; (iii) the Premises; (iv) the Indebtedness; or (v) the conveyance of the Premises by the Borrower to the Lender. B. The Borrower shall not commence, join in, prosecute, or participate in any suit or other proceeding in a position which is adverse to any of the Lender and its Affiliates arising directly or indirectly from any of the foregoing matters. C. Effective on the Closing Date and only if the transactions contemplated by this Agreement are consummated, the Lender shall release, acquit, and forever discharge the Borrower from any and all claims, demands, debts, actions, causes of action, suits, contracts, agreements, obligations, accounts, defenses, and liabilities of any kind or character whatsoever, known or unknown, suspected or unsuspected, in contract or in tort, at law or in equity, which the Lender ever had, now has, or might hereafter have against the Borrower for or by reason of any matter, cause, or thing whatsoever occurring prior to the Closing Date which relates to, in whole or in part, directly or indirectly: (i) the Loan; (ii) the Loan Documents; or (iii) any agreement of the Borrower relating to the Premises or the Indebtedness. Notwithstanding anything contained herein to the contrary, the obligations of the Borrower to perform the terms of this Agreement and the documents delivered pursuant to this Agreement shall survive the Closing Date. Section 6. Termination of Lender's Releases. The release provided to the Borrower in Section 5.C of this Agreement will be voided ab initio and will be of no force or effect and the Borrower will be obligated to repay to the Lender the Indebtedness and any sums paid by the Lender to the Borrower pursuant to Section 11 of this Agreement in the event any one or more of the following occurs: (a) The Borrower or any person claiming by or through the Borrower commence, joins in, assists, cooperates in, or participates as an adverse party or as an adverse witness (subject to compulsory legal process which requires testimony) in any suit or other proceeding against Lender and its Affiliates relating to the Loan, the Loan Documents, the Indebtedness, or the Premises; or (b) The deed or any other document evidencing a conveyance of the Premises to the Lender is ever rendered void or is rescinded by operation of law, or by order of any state or federal court of competent jurisdiction, by reason of an order arising out of any claim or proceeding initiated or commenced in favor of, against, on behalf of, or in concert with, directly or indirectly, the Borrower, or any person claiming by or through the Borrower or any of his/her respective agents, employees, representatives, successors, or assigns; or (c) The Borrower or any person claiming by or through the Borrower denies the Lender, or the Lender's representatives, the right to inspect the Premises, or to inspect, audit, and transcribe the books, records, contracts, and insurance policies maintained by the Borrower or any person claiming by or through the Borrower in connection with the construction, operation, or maintenance of the Premises; or (d) The release of the Lender and its Affiliates in Section 5.A of this Agreement is ever rendered void, is rescinded, or is adjudicated unenforceable by operation of law or by order of any state or federal court of competent jurisdiction, by reason of an order arising out of any claim or proceeding initiated or commenced in favor of, against, on behalf of, or in concert with, directly or indirectly, the Borrower or any person claiming or by through the Borrower or any of his/her respective agents, employees, representatives, successors, or assigns. Section 7. Corporate Authority. Each party to this Agreement represents and warrants to the other that: (a) all necessary corporate action on the part of each party to be taken in connection with the execution, delivery, and performance of this Agreement has been duly and effectively taken; and (b) the execution, delivery, and performance by each party of this Agreement does not constitute a violation or breach of such party's articles of incorporation, bylaws, or any other agreement or law by which such party is bound. Section 8. Deliveries by the Borrower. The Borrower shall deliver or cause the following items relating to the Premises to be delivered to the Lender within five (5) business days after each written request therefore (to the extent that any of such items are in the possession or direct or indirect control of the Borrower: (a) any personal property comprising the Premises that is owned or leased by the Borrower or by a person claiming by or through the Borrower; (b) any insurance policies; (c) any warranties, guarantees, and assurances given by third parties with respect to any part of the Premises; (d) any certificates of occupancy, licenses, and other governmental permits; (e) any drawings, engineering reports, maps, plans, and specifications and other similar matters; (f) any agreements, employment agreements, purchase orders, maintenance agreements, franchise agreements, union contracts, or other similar agreements; (g) any tax assessments, notices, and statements; (h) income and expense statements covering the operation of the Premises for the calendar year 20____; (i) all books and records pertaining to the Premises; (j) any keys necessary to obtain full access to the Premises; (k) all cash located on the Premises; ( l ) evidence satisfactory to the Lender that the coverage afforded by ______________________ (name of the Title Insurer) , the Title Insurer, continues in effect and that the coverage afforded the Lender thereby will not be prejudiced by the actions contemplated by this Agreement; and (m) all instruments required by the Title Insurer as a condition precedent to the issuance of a policy of owner's title insurance to the Lender, including, without implied limitation, an Estoppel Affidavit in substantially the form of Exhibit E attached as a part hereof. Section 9. Representations and Warranties. The Borrower hereby represents and warrants to the Lender that to the best knowledge of the Borrower after due inquiry and investigation: (a) Attached hereto as Exhibit F and made a part hereof is a true, complete, and correct listing of all employment agreements, commitments, rental agreements, equipment leases, guarantees, leases, contracts, undertakings, and arrangements entered into by the Borrower or anyone on the Borrower's behalf, whether written and oral, relating to the Premises; (b) The Borrower has delivered to the Lender copies of all documents relating to such matters to the extent that any of such items are in the possession or direct or indirect control of the Borrower; (c) Attached hereto as Exhibit G and made a part hereof is a true and correct listing of all claims against the Premises and all other payables owing in connection with the Premises, including, without implied limitation, all trade payables, real and personal property taxes, employee wages (including accrued vacation and fringe benefits, if any), utility charges, insurance premiums, lease payments, and license, franchise, and royalty payments (hereafter collectively called the payables) as of the dates therein stated. It is specifically understood that the Lender has not agreed and will not agree to assume or incur any liability or responsibility with respect to the payables or any other obligation of the Borrower. (d) The Borrower is represented by legal counsel of his/her choice, are fully aware of the terms contained in this Agreement, and have voluntarily and without coercion or duress of any kind entered into this Agreement and the documents executed in connection with this Agreement; (e) The Borrower is now and on the Closing Date will have a net worth no less than $____________; (f) The transfer of the Premises to the Lender will not render the Borrower insolvent; (g) The Borrower has made adequate provision for the payment of all creditors of the Borrower other than the Lender; and (h) Borrower has not entered into this transaction to provide preferential treatment to the Lender or any other creditor of the Borrower in anticipation of seeking relief under the Bankruptcy Code. The continued validity in all respects of all representations and warranties made in this Agreement and all other documents delivered by the Borrower in connection with this Agreement will be a condition precedent to the Lender's obligations created by this Agreement. If any of such representations and warranties are not correct at the time such representation and warranty was made or as of the Closing Date, or if the Borrower fails to perform any action required of any such party by the terms of this Agreement, on written notice from the Lender to the Borrower on or prior to the Closing Date, the obligations of the Lender created by this Agreement will become null and void. All representations and warranties contained in this Agreement and in all documents delivered by the Borrower in connection with this Agreement will be deemed remade as of the Closing Date and will survive the Closing Date. Section 10. No Third Party Beneficiaries . The Borrower acknowledges and agrees that the acceptance by the Lender of ownership of the Premises pursuant to the terms of this Agreement and the assignment to the Lender of various contracts and agreements pertaining to the Premises will not create any obligation on the part of the Lender to third parties which might have claims of any kind whatsoever against the Borrower. No person not a party to this Agreement will be a third-party beneficiary or acquire any rights hereunder. Section 11. Absolute Conveyance . The Borrower acknowledges and agree that: (a) the conveyance of the Premises to the Lender pursuant to the terms of this Agreement is an absolute conveyance of all of the Borrower's right, title, and interest in and to the Premises in fact as well as in the form and the deed, bill of sale, and other conveyance documents are not intended to be a mortgage, trust conveyance, deed of trust, or security interest of any kind; (b) the consideration for such conveyance is exactly as recited in this Agreement; and (c) after the Closing Date the Borrower will have no further interest (including rights of redemption) or claims in, to, or against the Premises or to the proceeds or profits that might be derived therefrom. Section 12. No Merger. The parties acknowledge and agree that notwithstanding the release contemplated by this Agreement, all of the Loan Documents will remain in full force and effect after the transactions contemplated by this Agreement have been consummated. The parties further acknowledge and agree that the interest of the Lender in the Premises created by all of the conveyances provided for herein will not merge with the interest of the Lender in the Premises under the Loan Documents. It is the express intention of each of the parties (and all of the conveyances provided for herein will so recite) that such interests of the Lender in the Premises will not merge, but be and remain at all times separate and distinct, notwithstanding any union of said interest in the Lender at any time by purchase, termination, or otherwise and that the liens held by the Lender against the Premises created by certain of the Loan Documents will remain at all times valid and continuous liens against the Premises. Section 13. Indemnification. The Borrower agrees to hold the Lender harmless from and against any and all liabilities, claims, demands, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and litigation expenses), actions, or causes of action, arising out of or relating to any breach of any covenant or agreement or the incorrectness or inaccuracy of any representation Agreement or any document delivered to the Lender by the Borrower pursuant to the terms of this Agreement. Section 14. Time. It is further agreed that time is of the essence of this Agreement and each provision of this Agreement. Section 15. Notices. Any notice, payment, demand, or communication required or permitted to be given by any provision of this Agreement will be deemed to have been given when delivered personally to the party designated to receive such notice or, on the third (3rd) business day after the same is sent by certified mail, postage and charges prepaid, directed to the following addresses or to such other or additional addresses as any party might designate by written notice to the other parties: To the Lender: _____________________________________________ With a copy to: _____________________________________________ To the Borrower: _____________________________________________ With a copy to: _____________________________________________ Section 16. Brokerage . The parties represent and warrant each to the other that the transactions hereby contemplated are made without liability for any finder's, realtor's, broker's, agent's, or other similar commission. The parties mutually agree to indemnify and hold each other harmless from claims or commissions asserted by any party as a result of dealings claimed to give rise to such commissions. Section 17. Entire Agreement. This Agreement (including the Exhibits attached as a part hereof) constitutes the entire and final agreement among the parties and there are no agreements, understandings, warranties, or representations among the parties except as set forth herein. Section 18. Binding Effect . This Agreement will inure to the benefit of and bind the respective heirs, personal representatives, successors, and permitted assigns of the parties hereto. Section 19. Relationship . The relationship between the Borrower and the Lender is that of debtor and creditor. Nothing contained in this Agreement will be deemed to create a partnership or joint venture between the Lender and the Borrower or between the Lender and any other party, or to cause the Lender to be liable or responsible in any way for the actions, liabilities, debts, or obligations of the Borrower or any other party. Section 20. Severability. If any clause or provision of this Agreement is determined to be illegal, invalid, or unenforceable under any present or future law by the final judgment of a court of competent jurisdiction, the remainder of this Agreement will not be affected thereby. It is the intention of the parties that if any such provision is held to be illegal, invalid, or unenforceable, there will be added in lieu thereof a provision as similar in terms to such provision as is possible and be legal, valid, and enforceable. Section 21. Headings. Paragraph or other headings contained in this Agreement are for reference purposes only and are not intended to affect in any way the meaning of interpretation of this Agreement. Section 22. Counterpart Execution. This Agreement may be executed in counterparts, each of which will be deemed an original document, but all of which will constitute a single document. This document will not be binding on or constitute evidence of a contract between the parties until such time as a counterpart of this document has been executed by each party and a copy thereof delivered to each other party to this Agreement. Section 23. Governing Law. This Agreement will be interpreted and construed under the laws of the State of Colorado. All claims, disputes, and other matters in question arising out of or relating to this Agreement, or the breach thereof, will be decided by proceedings instituted and litigated in a court of competent jurisdiction sitting in Colorado. Section 24. Cooperation. Prior to and at all times following the Closing Date, the Borrower and the Lender agree to execute and deliver, or to cause to be executed and delivered, such documents and to do, or cause to be done, such other acts and things as might reasonably be requested by the Title Insurer or any party to this Agreement to assure that the benefits of this Agreement are realized by the parties. The Borrower specifically agrees to assist the Lender in the disposition of any claims asserted against or on behalf of the Premises or the Lender in connection with the Premises which arose prior to the Closing Date. Section 25. Amendment . Neither this Agreement nor any of the provisions hereof can be changed, waived, discharged, or terminated, except by an instrument in writing signed by the party against whom enforcement of the change, waiver, discharge, or termination is sought. EXECUTED on the dates hereafter specified, effective as of the date first above written. __________________________________ (Printed Name of Borrower) __________________________________ (Signature of Borrower) ___________________________________ (Printed Name of Borrower) ___________________________________ (Signature of Borrower) State of Colorado ss. County of ___________________ The foregoing instrument was acknowledged before me this ________________ (date) by ______________________________________ (Names of each Borrower) . Witness my hand and official seal. ________________________________ (Printed Name of Notary) ________________________________ (Signature of Notary) My Commission Expires: ______________________