CaseMark Forbearance Agreement (Loan)
Temporarily suspends lender enforcement rights while preserving all remedies, creating a structured roadmap for the forbearance period.
Prerequisites
Gather before drafting:
- Loan documents — loan agreement, note, security agreements, guaranties, prior amendments
- Loan details — principal balance, interest rate, payment history, maturity date
- Default information — nature of defaults, missed payment dates/amounts, covenant violations
- Collateral — type, location, current valuation
- Parties — full legal names, entity types, states of formation, guarantors
- Forbearance terms — desired duration, proposed payment structure, lender conditions
- Amendment requirements — original loan doc provisions governing modifications
Document Architecture
| Section | Purpose |
|---|---|
| Title & Date | "Forbearance Agreement and Temporary Modification of Loan Payment Terms" |
| Parties | Full legal ID, entity type, formation state, role |
| Recitals | Factual/legal foundation |
| Forbearance Terms | Period, payment modifications |
| Conditions & Covenants | Precedent conditions, ongoing borrower obligations |
| Lender Reservation of Rights | Narrow commitments, broad reservations |
| Representations & Warranties | Mutual reps, borrower acknowledgments |
| Default & Termination | Triggers, consequences |
| Release & Waiver | Borrower release, reaffirmation |
| General Provisions | Governing law, integration, notices, execution |
| Exhibits | Note copy, payment schedule, payoff statement |
Core Drafting Workflow
1. Recitals
Include all of:
- Original loan reference (date, principal, balance, rate, maturity)
- Security/collateral description establishing lender's secured position
- Specific default description (dates, amounts, violations) — professional tone
- Borrower requested forbearance; lender agrees in sole discretion without obligation
- Borrower acknowledgment: debt validity, balance accuracy, waiver of defenses/setoffs/counterclaims
- Recitals are contractual and part of the operative agreement
2. Forbearance Period Terms
Define with precision:
- Dates — commencement and termination (or duration with date-certain auto-termination)
- Scope — which obligations are suspended, reduced, or modified
- Payment — exact amount, due dates; if suspended, specify interest-only or reduced P&I
- Deferred amounts — re-amortized into principal, balloon payment, maturity extension, or other
- Interest accrual — whether interest continues; applicable rate; treatment of accrued unpaid interest (capitalized, deferred, or paid currently)
- Completion outcome — return to original schedule, permanent modification, or other
- Explicit statement — forbearance is temporary, not permanent modification unless expressly stated
3. Conditions Precedent & Ongoing Covenants
Initial conditions: execution and delivery, payment of fees/costs, current financials, insurance evidence on collateral, additional lender-required documentation.
Ongoing obligations:
- Timely payment per forbearance schedule — no grace period, no cure right
- Maintain insurance (lender as loss payee/additional insured)
- Pay property taxes on real property collateral
- Comply with laws; preserve collateral condition
- Periodic financial reporting (specify frequency, format, deadline)
- Maintain legal existence; operate in ordinary course
- No asset dispositions or additional debt without consent
- Good faith workout negotiation (if applicable)
Breach = immediate default, terminates forbearance, restores all enforcement rights. Specify whether notice/cure applies or auto-termination for certain breaches.
4. Lender Reservation of Rights
Lender's commitment is narrow: refrain from specified remedies (acceleration, foreclosure, collection) only while borrower is in strict compliance.
Preserve explicitly:
- Covers only pre-existing identified defaults — new defaults enforceable immediately
- One-time accommodation; no future forbearance obligation
- No waiver except as expressly stated
- Right to accrue interest at contract/default rate
- Right to assess late fees/default charges post-forbearance
- Right to credit reporting, collateral preservation (appraisals, inspections)
- No representations re borrower's ability to cure or future willingness to modify
- Absolute discretion to refuse future accommodations
- Full enforcement upon expiration/termination
5. Events of Default & Termination
Triggers:
- Missed forbearance payment (no grace period)
- Breach of any forbearance covenant/condition
- New default under original loan documents
- Material misrepresentation
- Bankruptcy/insolvency/receivership (voluntary or involuntary)
- Assignment for benefit of creditors
- Attachment/levy against collateral
- Material adverse change in financial condition
- Unauthorized transfer of collateral or ownership interests
Consequences:
- Entire balance immediately due without further notice/demand
- All remedies available (foreclosure, collection, receiver)
- Borrower liable for enforcement costs including attorney's fees
- Forbearance payments applied per original loan terms
- No credit or benefit for forbearance participation
6. Release, Waiver & Reaffirmation
- Release — borrower releases lender and affiliates from all claims (known/unknown) arising from loan, collateral, or lender conduct; knowing and voluntary with counsel-consultation acknowledgment
- Waivers — defenses to enforcement (usury, TILA, UDAP, breach of duty); counterclaims/setoffs; jury trial (consistent with original docs)
- Reaffirmation — all obligations and security interests remain in full force; forbearance is not novation or release
7. General Provisions
| Provision | Key Points |
|---|---|
| Governing law | Same jurisdiction as original loan docs; no conflicts-of-law |
| Jurisdiction | Exclusive forum; borrower consents to personal jurisdiction; lender may enforce where collateral located |
| Attorney's fees | Prevailing party; reasonable fees and costs |
| Integration | Agreement + loan documents = entire agreement |
| Amendment | Written and signed only; no oral modifications |
| Conflict | Forbearance agreement controls where conflicting |
| Notices | Addresses, delivery methods, deemed-given timing |
| Counterparts | Electronic/PDF signatures effective |
| Assignment | Binding on successors; borrower may not assign without consent |
| Time of essence | Strict and timely performance is material |
8. Execution
- Signature blocks with printed name, title, date; entity language ("Duly Authorized")
- Check original docs for modification formalities (resolutions, approvals, consents)
- Notarization if real property affected or recording needed
- Guarantor consent: if guarantors exist, include consent/reaffirmation with separate signature blocks
Pitfalls & Checks
- Review original loan amendment provisions first — they dictate required formalities
- Scope forbearance precisely to identified pre-existing defaults only
- Never imply permanent modification unless expressly intended
- All borrower acknowledgments (debt validity, balance accuracy, defense waivers) must be explicit and unambiguous
- Draft for litigation — assume forbearance will fail and a court will review every provision
- Verify state-specific enforceability of waivers, releases, and jury trial waivers (U.S. commercial lending)
- Include TOC if document exceeds 10 pages
- Attach exhibits: note copy, forbearance payment schedule, current payoff statement
- Target length: 8–15 pages depending on complexity