DISCOUNTED PAYOFF AGREEMENT SUMMARY

Transcription

1 DISCOUNTED PAYOFF AGREEMENT SUMMARY This Discounted Payoff Agreement Summary (this Summary ) is made in connection with the Discounted Payoff Agreement attached hereto (the Agreement ), among Borrower, Guarantor(s), if any, and Holder (as defined below) and once signed, it shall be deemed part of the Agreement. This Summary sets forth the applicable terms and conditions relating to the Agreement. Borrower New Life Assembly of Bremerton ( Borrower ) Guarantor(s) None ( Guarantors, and together with Borrower, the Obligors ). If there are no Guarantors, then the term Obligors shall refer only to Borrower. Holder CRE Venture, LLC ( Holder ) Effective Date October 1, 2013 (the Effective Date ) Failed Bank Westsound Bank (the Bank ) Note That certain Promissory Note dated October 16, 2006 (the Note ) Security Deed That certain Real Estate Deed of Trust dated October 16, 2006, executed by Borrower in favor of Bank and recorded in Kitsap County records as Instrument No (the Security Deed ). Guarantee(s) Payoff Date Extension Option Extension Option Payment Discounted Payoff Amount Administration/Legal Fee Monthly Payments Acknowledgement of Amounts Due The Security Deed secures certain real property commonly located at 1305 Ironsides Ave, th Street, th Street, and th Street in Bremerton, Washington (collectively, the Property ). N/A (collectively, the Guaranty ) 5:00PM EDT on November 22,, 2013 (as may be extended by any extension options, the Payoff Date ) None. N/A (the Extension Option Payment )] Borrower shall have the option to pay off the Loan in full at a discount, by paying to Holder, on or before the Payoff Date, time being of the essence, immediately available funds in the amount of $600, (the Discounted Payoff Amount ), which shall be applied to principal, interest, and Holder s fees and advances, in Holder s sole discretion. In consideration of Holder s willingness to enter into this Agreement, Borrower shall pay to Holder on the Effective Date, in immediately available funds, an amount equal to $1, (the Administration Fee ), which amount shall be applied towards Holder s administrative and legal expenses. N/A Obligors acknowledge that the Loan is in default as of the date hereof, such defaults have not been cured, that the outstanding v02

2 Governing Law State Specific Provisions Notice Addresses unpaid balance of the Loan (including outstanding principal of $1,543,702.66, and accrued, unpaid interest of $321, is $1,865, and, along with any other amounts owed under the Loan Documents, is immediately due and payable in full THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF WASHINGTON AND FEDERAL LAW, AS APPLICABLE WITHOUT REGARD TO CONFLICT OF LAW RULES NOTICE: ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW. For purposes of this Agreement and the Loan Documents, the addresses for notice are as follows: OBLIGORS: New Life Assembly of Bremerton 1305 Ironsides Avenue Bremerton, Washington Attention: Eric Roberts HOLDER: CRE Venture, LLC c/o Colony Capital, LLC 2450 Broadway, Sixth Floor Santa Monica, CA Attention: Director of Legal Facsimile: (310) colonylegal@colonyinc.com With a copy to: CRE Venture, LLC c/o Colony AMC OPCO, LLC 100 N. Sepulveda Blvd. Suite 1900 El Segundo, CA Attention: Loan Administrator -2-

3 DISCOUNTED PAYOFF AGREEMENT THIS DISCOUNTED PAYOFF AGREEMENT ("Agreement") is effective as of the Effective Date, among Borrower and Holder. R E C I T A L S: A. WHEREAS, the Bank held a certain loan made to Borrower (the Loan ), evidenced by the Note, which Note is secured by the Security Deed. B. WHEREAS, collectively, the Note, Security Deed, Guaranties (if applicable) and all documents executed in connection therewith and all documents executed by any of the Obligors in connection with this Agreement are referred to herein as the Loan Documents ; C. WHEREAS, the Loan and the Loan Documents, and all right, title and interest of Bank in and to the Loan and the Loan Documents were purchased by Holder from the Federal Deposit Insurance Corporation (the FDIC ), as Receiver for the Bank. A G R E E M E N T: NOW, THEREFORE, Holder and the Obligors hereby agree as follows: 1. Recitals and Summary. The foregoing recitals and the Discounted Payoff Summary (the Summary ) are confirmed by the Holder and the Obligors as true and correct and are incorporated herein by reference. The recitals and the Summary are a substantive, contractual part of this Agreement. Capitalized terms used herein shall have the meanings ascribed in the Summary, or otherwise in the Loan Documents. The parties acknowledge that the Summary may contain terms and conditions that supplement or contradict the terms in this Agreement, and in that case, the Summary shall prevail and provide controlling terms. Such additional terms and conditions may include provisions necessary for compliance with law in the governing jurisdiction and/or limits on scope and may be offered up and then negotiated and/or accepted (or not) in the exercise of each parties sole and absolute discretion. 2. No Waiver. The execution, delivery and performance of this Agreement by Holder and the acceptance by Holder of performance of the Obligors hereunder (a) shall not constitute a waiver or release by Holder of any default that may now or hereafter exist under the Loan Documents, (b) shall not constitute a novation of the Loan Documents nor any modification of the Loan Documents; and (c) shall be without prejudice to, and is not a waiver or release of, Holder's rights at any time now or in the future (including without limitation, during the term of this Agreement) to exercise any and all rights conferred upon Holder by the Loan Documents or otherwise at law or in equity, including but not limited to the right to institute foreclosure proceedings against the Property and/or institute collection proceedings against the Obligors and/or to exercise any right against any other person or entity not a party to this Agreement. 3. Payments and Option to Payoff Loan at a Discount. -3-

4 (a) Borrower shall have the option to pay off the Loan in full at a discount, by paying to Holder, on or before the Payoff Date, time being of the essence, immediately available funds in the amount of the Discounted Payoff Amount. If and only if Borrower so timely pays the Discounted Payoff Amount in full, in immediately available funds, on or before the Payoff Date (as may be extended pursuant to any applicable Extension(s), if any) and such option has not been otherwise terminated under this Agreement, then Obligors shall be released of all unpaid principal and any outstanding fees or expenses owed to Holder under the Note and the Loan Documents and Holder shall release any liens Holder has against the Borrower or the Property. Borrower agrees to give Holder two (2) business days prior notice of the date and time it intends to pay the Discounted Payoff Amount. The provisions of this Section 3(a) shall apply only if Holder has received from Obligors a counterpart of this Agreement duly executed by each Obligor. Further, the provisions of this Section 3(a) are contingent upon Obligors providing to Holder copies of current financial reports, including tax returns for the past 2 years and asset-level financial reports. (b) The option to pay off the Loan at a discount shall expire at the Payoff Date (as may be extended pursuant to any applicable Extension(s), if any) or any earlier termination under Section 6 below. Notwithstanding anything herein to the contrary, in the event that Borrower shall not have paid to Holder the Discounted Payoff Amount on or before the Payoff Date (as may be extended pursuant to any applicable Extension(s), if any) or any such earlier termination of the option (TIME BEING OF THE ESSENCE), no discounted payoff of the Loan pursuant to Section 3(a) above or otherwise will be available to Borrower and the full outstanding balance of the loan principal and interest shall remain immediately due and payable. If for any reason Borrower fails to timely pay the Discounted Payoff Amount as set forth herein, the Note and the Loan Documents shall continue unamended and in full force and effect and Borrower shall not be relieved of any of Borrower s obligations under the Loan Documents or this Agreement, including without limitation, to continue to timely and fully pay and perform all of its obligations under the Note and the Loan Documents, all in accordance with their terms, without any discount to the Loan. (c) As the consideration to obtain the option to pay off the Loan at a discount, and as a condition to, Holder s obligation to accept the Discounted Payoff Amount from Borrower on or before the Payoff Date pursuant to this Agreement, Borrower shall pay to Holder on the Effective Date, in immediately available funds, an amount equal to the Administrative Fee. The Administrative Fee and the Extension Option Payment (if applicable) shall be non-refundable and shall be retained by Holder in all events, whether or not the Discounted Payoff Amount is paid by Borrower on or before the Payoff Date (as may be extended pursuant to any applicable Extension(s), if any) or otherwise. Neither the Extension Option Payment (if applicable) nor the Administrative Fee shall be applied to reduce principal or interest or any other amount owed by any Obligors, nor as a credit against the Discounted Payoff Amount. In no event shall Holder have any obligation to provide or accept any discount if the Discounted Payoff Amount is not paid -4-

5 in full by Borrower on or before the Payoff Date (as may be extended pursuant to any applicable Extension(s)) or if the option has been terminated under Section 6. (d) Borrower shall pay any filing fees, recording fees, escrow fees, title insurance premiums, attorneys fees, and other closing costs that may be incurred by Holder in connection with the transaction contemplated hereby, regardless of whether Borrower pays the Discounted Payoff Amount. Borrower acknowledges that the Discounted Payoff Amount does not include any of such fees, costs or expenses. 4. Acknowledgment of Default. Obligors acknowledge that, (i) Obligors have no offsets, defenses or counterclaims to their obligations under the Loan Documents, (ii) the Loan Documents are valid and enforceable against, and all of the terms and conditions of the Loan Documents are binding as to the Obligors and there are no written or oral understandings or agreements regarding the Loan other than as set forth in the Loan Documents, (iii) the Holder s liens and security interests in and to the collateral are valid, legal, binding and properly perfected, recorded and/or filed, as applicable, (iv) Holder has properly declared the defaults and has the right to accelerate the Loan and is otherwise presently entitled to exercise all other rights and remedies under the Loan Documents and applicable law, and (v) to the extent that any of the Obligors requires notification by the Holder to the Obligors or any other party of the existence of the defaults and an opportunity to cure such defaults, such notice and period for cure were properly given by the Holder or are hereby waived by the Obligors. 5. Representations and Warranties. In order to induce Holder to execute, deliver, and perform this Agreement, effective as of the Effective Date and at all times through and including the Payoff Date (as may be extended pursuant to any applicable Extension(s), if any), each of the Obligors warrants and represents to Holder that: (a) this Agreement is not being made or entered into with the actual intent to hinder, delay, or defraud any entity or person, and each of the Obligors is solvent and not bankrupt; (b) this Agreement is not intended by the parties to be a novation or modification of the Loan Documents and all terms, conditions, rights and obligations as set out in the Loan Documents are hereby reaffirmed and shall otherwise remain in full force and effect as originally written and agreed; (c) no action or proceeding, including, without limitation, a voluntary or involuntary petition for bankruptcy under any chapter of the Federal Bankruptcy Code, has been instituted or threatened by or against any of the Obligors; (d) the execution of this Agreement by Obligors and the performance by Obligors of their respective obligations hereunder will not violate or result in a breach or constitute a default under any agreements to which they are parties; (e) This Agreement and the Loan Documents constitute the entire agreement among the parties with respect to this matter. Obligors acknowledge that in entering into -5-

6 this Agreement, Holder has made no representations, warranties, covenants, agreements or understandings with Obligors other than as expressly set forth herein, and Obligors have not relied upon alleged representations, warranties, covenants, agreements or understandings of Holder, whether oral or written. (f) Obligors have obtained all consents and permissions related to the transactions herein contemplated and required under any covenant, agreement, encumbrance, law or regulation. (g) this Agreement is duly authorized, executed and delivered by and is and will be binding upon Obligors. Each Obligor has the capacity and authority to enter into this Agreement and consummate the transactions herein provided and nothing prohibits or restricts the right or ability of any Obligor to close the transactions contemplated hereunder and carry out the terms hereof. 6. Termination. The option to pay off the Loan at a discount in this Agreement shall terminate at the Payoff Date (as may be extended pursuant to any applicable Extension(s), if any) (TIME BEING OF THE ESSENCE). Notwithstanding anything to the contrary in this Agreement, such option may be terminated earlier than the Payoff Date by Holder, at Holder's option, in its sole and absolute discretion, upon written notice to Obligors of the occurrence of any of the following: (a) Any of the Obligors files a petition for bankruptcy under any chapter of the Federal Bankruptcy Code or takes advantage of any other debtor relief law, or an involuntary petition for bankruptcy under any chapter of the Federal Bankruptcy Code is filed against any of the Obligors, or any other judicial action is taken with respect to any of the Obligors by any creditor; (b) Holder discovers that any representation or warranty made herein by any of the Obligors was or is untrue, incorrect or misleading in any material respect; (c) Any of the Obligors breach or default in performance of any covenant or agreement contained in this Agreement, or after the date hereof, any default occurs under the Loan Documents; (d) Any creditor commences any enforcement action against any Obligor or any assets of an Obligor including, without limitation, filing of a suit or foreclosure action, exercise of a power of sale or the filing of a lien 7. Waiver and Release. Obligors warrant and represent to Holder that the Loan is not subject to, and they hereby waive, any credits, charges, claims, or rights of offset or deduction of any kind or character whatsoever (the obligations of Borrower being absolute and unconditional). In order to induce Holder to enter this Agreement and as a material part of the consideration therefor, each of the Obligors, on behalf of itself and its officers, directors, shareholders, partners, members, predecessors, successors, assigns, servicers, attorneys contractors and agents (collectively, Releasors ), hereby irrevocably and unconditionally -6-

7 release and forever discharge Holder (and the trustee of any mortgage, deed of trust, and/or deed to secure debt) and each of their beneficiaries, trustees, owners, predecessors (including, without limitation, the Bank and the FDIC), successors, assigns, agents, officers, employees, servicers, representatives, attorneys, and affiliates, and all persons acting by, through, under, or in concert with any of the aforesaid persons or entities (collectively, Released Parties ), or any of them, from and against any and all causes of action, suits, debts, liens, obligations, liabilities, claims, demands, damages, judgments, losses, orders, penalties, costs and expenses, including, without limitation, attorneys fees, of any kind or nature whatsoever, whether under law, in equity or by statute, known or unknown, suspected or unsuspected, fixed or contingent, liquidated or unliquidated, which any of the Releasors now have, own, hold, or claim to have, own, or hold, or at any time heretofore have had, owned, held or claimed to have had, owned, or held against any of the Released Parties arising from, based upon, or related to, whether directly or indirectly (collectively, Claims ): (i) the Loan; (ii) the Loan Documents; (iii) any real and personal property collateral for the Loan; (iv) this Agreement; (v) any and all other agreements, documents or instruments referenced herein or in the Loan Documents or related hereto or thereto; (vi) any defenses as to the enforcement of the Loan Documents; (vii) any act, omission, negligence or breach of duty; or (viii) any theory of lender liability. Releasors acknowledge that there is a risk that after the Effective Date, Releasors may discover, incur, or suffer from Claims which were unknown or unanticipated, including, without limitation, unknown or unanticipated Claims which, if known by Releasors, may have materially affected Releasors decision to execute this Agreement. Releasors represent and warrant to the Released Parties that Releasors have not assigned or transferred or purported to assign or transfer any Claim or Claims or any portion thereof or any interest therein, and agree to indemnify, defend (with counsel selected by the Released Parties), and hold the Released Parties harmless from and against any Claim or Claims based on, or arising out of, whether directly or indirectly, any such assignment or transfer, or purported assignment or transfer. If this Agreement is terminated for any reason, this paragraph 7 shall survive. 8. Indemnity. Obligors hereby agree to protect, defend, indemnify and hold harmless each Released Party from and against any and all loss, cost, damage, expense or liability (including attorneys fees and costs) which such Released Party may sustain or incur by reason of (i) any claim, defense or cause of action brought by any of the Obligors, (ii) any breach by any Obligor of its obligations under this Agreement, or (iii) any inaccuracy when made of any representation or warranty made by any Obligor in this Agreement. If this Agreement is terminated for any reason, this paragraph 8 shall survive. 9. Invalidation of Transaction. In the event Borrower s payment of the Discounted Payoff Amount to Holder shall be set aside, invalidated or voided as a preference or a fraudulent transfer, or if for any other reason Holder is required to return all or any portion of the Discounted Payoff Amount to Borrower or any other person or entity, the Loan Documents, and all of Obligors obligations thereunder as such obligations existed immediately prior to the payment of the Discounted Payoff Amount to Holder, shall be reinstated and shall be deemed to be in full force and effect in favor of Holder. In such event, Borrower (or Obligor, if applicable) shall, at Holder s request, execute and deliver to Holder a new note containing the same terms as -7-

8 the Note, a new deed to secure debt containing the same terms as the Security Deed, which new deed to secure debt shall be recorded in the appropriate official records, new guaranties containing the same terms as the Guaranties, and any additional documents requested by the Holder for the purposes of this paragraph. 10. Miscellaneous. (a) This Agreement may be executed in a number of identical counterparts which, taken together, shall constitute collectively one (1) agreement; but in making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart executed by the party to be charged. Any scanned PDF counterparts or facsimile counterparts shall be considered originals. (b) No present or future advisor, trustee, director, officer, employee, shareholder or agent of Holder shall have any personal liability, directly or indirectly, under or in connection with this Agreement or any agreement made or entered into under or pursuant to the provisions of this Agreement, or any amendment or amendments to any of the foregoing made at any time or times, heretofore or hereafter, and each Obligor and its successors and assigns hereby waive any and all such personal liability (c) None of the parties has any obligation to re-negotiate nor modify any of the Loan Documents or this Agreement(nor to attempt to do so in good faith or otherwise) and any such negotiations which may occur may be broken off by any party at any time in their respective sole and absolute discretion without liability. Any future waiver, alteration, amendment or modification of any of the provisions of the Loan Documents or this Agreement shall not be valid or enforceable unless separately formally agreed to in writing and signed by all parties (in their respective sole and absolute discretion), it being expressly agreed that neither the Loan Documents, nor this Agreement can be modified orally, by course of dealing or by implied agreement. Moreover, any delay by Holder in enforcing its rights after an event of default shall not be a release or waiver of the event of default and shall not be relied upon by the Obligors as a release or waiver of the default. (d) The headings of paragraphs in this Agreement are for convenience of reference only and shall not in any way affect the interpretation or construction of this Agreement. (e) In any legal action relating to this Agreement, the Holder and any of the Released Parties shall be entitled to receive from the Obligors all costs and expenses of such action (including reasonable out of pocket attorneys fees and disbursements). (f) The warranties and representations of the Obligors in this Agreement shall survive the termination of this Agreement. (g) TIME IS OF THE ESSENCE OF THIS AGREEMENT. -8-

9 (h) Notice shall be in writing, and shall be deemed to have been given (i) 48 hours after being sent by certified or registered mail, return receipt requested, postage prepaid and addressed as set forth above; or (ii) if by personal delivery (a) to any of the Obligors, when personally delivered to such party or anyone temporarily or permanently residing at such party s residence, or (b) if to Holder, when personally delivered to an officer of Holder at the address set forth above. Rejection or other refusal to accept or inability to deliver because of a changed address of which no notice has been received shall also constitute service of notice. The parties may change their respective addresses by sending written notice to the other parties in accordance with the foregoing; however, no written notice of change of address shall be effective until the date of receipt thereof. 11. FINAL AGREEMENT. THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR ORAL OR WRITTEN, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS AMONG THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES. [SIGNATURES COMMENCE ON THE FOLLOWING PAGE] -9-

10 IN WITNESS WHEREOF, the undersigned have each executed this Discounted Payoff Agreement and Summary on the date below its signature, to be effective as of the date first set forth above. BORROWER: New Life Assembly of Bremerton By: Name: Its: Eric Roberts President/Pastor By: Name: Its: Dan Escobar Secretary/Treasurer Date: HOLDER: CRE Venture, LLC, a Delaware limited liability company By: Its: ColFin Axle Funding, LLC Manager By: Name: Title: Date: -10-