EXHIBIT 10.19
FORBEARANCE AGREEMENT
THIS 'FORBEARANCE AGREEMENT (the "Agreement") is made this 21st day of
October, 1999, by and among M.I.E. HOSPITALITY, INC., a Pennsylvania corporation
("Borrower"), XXXXXX XXXXXXXX'X, INC., a Utah corporation ("Treacher's") and
XXXXX INDUSTRIAL ENTERPRISES, INC., a Pennsylvania corporation (the "Lender").
REFERENCES TO CAPITALIZED TERMS USED HEREIN ARE SET FORTH IN SECTION 1 HEREOF.
BACKGROUND
A. In connection with the acquisition on or about November 27, 1996 of
the issued and outstanding shares of capital stock of Borrower by Treacher's,
Borrower executed and delivered a Promissory Note dated November 27, 1996, in
the original principal amount of $1,139,563 (the "Note") to the Lender.
B. In order to secure the obligation to repay any liabilities and
obligations of Borrower to the Lender under the Note, reacher's, on or about
November 27, 1996, executed and delivered a Guaranty (the "Suretyship
Agreement"), pursuant to which Treacher's became unlimited surety to the Lender
for the obligations and liabilities of Borrower under the Note.
C. The Borrower and Treacher's have defaulted under the terms of the
Note and Suretyship Agreement for, inter alia, failure to make the principal
payment due June 1, 1999 under the Loan Documents. The foregoing default is
hereinafter referred to as the "Existing Default".
D. On or about June 25, 1999, Lender entered a judgment against
Borrower by confession in the Court of Common Pleas of Philadelphia County,
Pennsylvania in the amount of Nine Hundred Sixty-Four Thousand Two Hundred
Thirty-Six Dollars an&Forty-Four Cents ($964,236.44) in an action entitled Xxxxx
Industrial Enterprises, Inc. v. M.I.E Hospitality, Inc., No. 003040 (the
"Judgment Against Borrower").
E. On or about June 25, 1999, Lender entered a judgment against
Treacher's by confession in the Court of Common Pleas of Philadelphia County,
Pennsylvania in the amount of Nine Hundred Sixty-Four Thousand Two Hundred
Thirty-Six Dollars and Forty-Four Cents ($964,236.~) in action entitled Xxxxx
Industrial Enterprises. Inc. v. Xxxxxx Xxxxxxxx'x. Inc., No. 003035 (the
"Judgment Against Treacher's"). The Judgment Against Borrower and the Judgment
Against Treacher's are hereinafter collectively referred to as the "Judgments".
F. Borrower and Treacher's have requested that Lender refrain from
exercising any rights available to it as a result of the existence of the
Existing Default and to refrain from
executing upon a Judgment upon the covenant and agreement of Borrower and
Treacher's to make or cause to be made the payments described in this Agreement
and otherwise comply with the terms and provisions of the Loan Documents and the
terms hereof, and which Lender is willing to do pursuant to the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of foregoing premises and intending to
be legally bound hereby, 'the parties hereto agree as follows:
TERMS
1. CAPITALIZED TERMS. For purposes of this Agreement:
(a) "Lender Indebtedness" shall have the meaning set forth in
Section 5 below.
(b) "Code" means the Uniform Commercial Code as adopted in
Pennsylvania, as the same may be amended from time to time.
(c) "Collateral" means all tangible and intangible property of
Obligors, whether real or personal, pledged and/or delivered to Lender or in
which Lender has been granted a lien or security interest, as security for the
Note.
(d) "Forbearance Documents" means the Loan Documents, together
with this Agreement and all other documents executed in connection herewith
including but not limited to the documents listed in Section 7 of this
Agreement.
(e) "Loan Documents" means all documents, agreements,
certifications, resolutions, notes, surety and security agreements executed by
the Obligors and delivered to The Lender in connection with the transactions
referred to herein including, but not limited to the Note and the Suretyship
Agreement.
(f) "Obligors" means the Borrower and Treacher's.
All other capitalized terms used herein shall have the meanings set forth in
this Agreement.
2. CONFIRMATION OF BACKGROUND. Obligors hereby jointly and severally
ratify, confirm and acknowledge that the statements contained in the foregoing
Background are true and complete in all respects and that the Loan Documents are
valid, binding and in full force and effect as of the date hereof and fully
enforceable against Obligors and their respective assets in accordance with the
terms thereof. Treacher's further acknowledges that nothing contained in this
Agreement shall be deemed to impair, reduce or release in any manner whatsoever
any of its obligations as surety for the obligations of Borrower under the Loan
Documents.
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3. GENERAL ACKNOWLEDGMENTS. Obligors hereby acknowledge and agree as
follows:
(a) Borrower and Treacher's are currently in default of their
respective obligations under the Loan Documents as a result of the occurrence of
the Existing Default, and Obligors hereby fully and finally waive any further
notice or demands from Lender to Obligors in connection therewith;
(b) Neither this Agreement nor any other agreement entered in
connection herewith or pursuant to the terms hereof shall be deemed or construed
to be a compromise, satisfaction, reinstatement, accord and satisfaction,
novation or release of any of the Loan Documents, or any rights or obligations,
thereunder, or a waiver by Lender of any of its rights under the Loan Documents
or at law or in equity;
(c) Except as specifically provided herein, neither this
Agreement nor any other agreement executed in connection herewith or pursuant to
the terms hereof, nor any actions taken pursuant to this Agreement or such other
agreement shall be deemed to cure the Existing Default or any other events of
default which m~y exist under the Loan Documents or to be a waiver by the Lender
of the Existing Default or any other existing defaults or events of default
under the Loan Documents, or of any rights or remedies in connection therewith
or with respect thereto, it being the intention of the parties hereto that the
obligations of Obligors with respect to the Loan Documents are and shall remain
in full force and effect;
(d) All liens, security interests, pledges, assignments,
rights and remedies granted to the Lender in the Loan Documents are hereby
renewed, confirmed and continued, and shall also secure the performance by
Obligors of their respective obligations hereunder; and
(e) If at any time a payment or payments made by any Obligor
on any part of the Lender Indebtedness are subsequently invalidated, declared to
be fraudulent or preferential, and are set aside or are required to be repaid to
a trustee, receiver or any other person or entity under any bankruptcy act,
state or federal law, common law or equitable cause, then to the extent of such
payment or payments, the Lender Indebtedness intended to be satisfied shall be
revived and continued in full force and effect as if such payment or payments
had not been made.
4. CHALLENGE TO ENFORCEMENT. Obligors acknowledge and agree that none
of them have any defense, set-off, counterclaim or challenge with respect to the
payment of any sums owing under the Loan Documents, or the enforcement of any of
the terms or conditions thereof, or to the validity or priority of any liens or
encumbrances granted or established therein.
5. CONFIRMATION OF EXISTING INDEBTEDNESS. Obligors hereby confirm and
acknowledge that as of September 24, 1999, (a) the outstanding principal balance
under the Note is $911,650.40; and (b) the aggregate accrued and unpaid interest
due on the Note at' the Default Rate, as defined in the Note, is $75,059.25. The
foregoing sums, together with all accrued and unpaid interest thereon, future
advances, attorneys' fees and expenses and all other
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costs and expenses due or to become due under the Forbearance Documents, shall
be collectively referred to herein as the "Lender Indebtedness".
Obligors hereby acknowledge and agree that all sums described
in this Section 5 are validly and duly owing to Lender.
6. FORBEARANCE. Lender hereby agrees to forbear from exercising the
rights and remedies available to it against the Obligors as a result of the
Existing Default, until the earlier of (a) the occurrence of any default or
event of default (other than the Existing Default) under the Forbearance
Documents, (b) a breach of any of Obligors' obligations hereunder, or (c)
failure of compliance with any conditions precedent as set forth in Section 7
hereof.
7. CONDITIONS PRECEDENT TO LENDER'S OBLIGATION TO FORBEAR. It shall be
a condition precedent to the Lender's obligation to forbear hereunder that
Lender shall have received the sum of $150,827.22 representing the payment of
principal and interest due under the Note on June 1, 1999 as follows:
(a) Lender shall have received the $60,500 security deposit
under the Lease Agreement dated May 15, 1979 between Borrower and Union Deposit
Corporation (the "Security Deposit"'); and
(b) Lender shall have received the sum of $90,327.22 from
Treacher's by wire transfer of immediately available funds on or before October
21, 1999.
8. ADDITIONAL AGREEMENTS OF LENDER AND TREACHER'S.
(a) Provided that no event of default under the Forbearance
Documents, other than the Existing Default has occurred, Lender agrees to accept
common stock of Xxxxxx Xxxxxxxx'x, Inc. (the "Common Stock") at an agreed
exchange price of $.60 per share in lieu of the cash payments of principal and
accrued interest due December 1, 1999 and June 1, 2000 under the Note, or
243,993 shares of Common Stock in lieu of the $146,395.60 principal and interest
payment due December 1, 1999 and 236,269 shares of Common Stock in lieu of the
$141,761.39 'principal and interest payment due June 1, 2000. In the event of a
stock dividend, stock split, or other subdivision, reclassification or
combination of the Common Stock, the exchange price and number of shares of
Common Stock to be received shall be adjusted proportionately. If Treacher's
registers any shares of Common Stock under the Federal Securities Law,
Treacher's shall include in its registration statement all shares of Common
Stock held by Lender at no expense to Lender.
(b) Lender acknowledges that there are various substantial
risks attendant to Treacher's business and it has considered the risks
associated with the purchase and ownership of the Common Stock. No
representations or warranties have been made concerning the success of the
business or the potential profit, if any, of an investment in Leacher's. Lender
has had an opportunity to receive from Treacher's material financial and other
information about the
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Common Stock and Treacher's and Treacher's has given Lender an opportunity to
ask questions about and receive answers respecting the business of Treacher's
and its financial condition. As an owner of Series B Preferred Stock of
Treacher's, Lender has knowledge of its business and industry and is able to
evaluate the merits and risks of ownership of Common Stock.
(c) Lender acknowledges the illiquidity of the Common Stock.
Lender acknowledges tat an investment in the Common Stock is speculative and
involves a risk of loss of the entire investment and no assurance can be given
of any income from such investment. Lender further acknowledges that, due to the
fact that the Common Stock will not be registered under the 1933 Act, or state
securities laws, transfers of the Common Stock have been significantly limited.
Therefore, Lender does not expect to be able to transfer the Common Stock.
Lender acknowledges that Lender must bear the economic risk of the investment
for an indefinite period of time and can afford a complete loss of the
investment and Lender acknowledges that the Common Stock cannot be transferred
without registration or available exemption from registration under applicable
securities laws. Furthermore, Lender understands that (a) the Common Stock will
bear an appropriate legend restricting the sale, hypothecation or other transfer
of the Common Stock, and (1,) the transfer records of Treacher's will contain
appropriate notations of such transfer restrictions.
(d) Lender warrants and represents to Treacher's that it is
acquiring the Common Stock for investment purposes, solely for its own account
and not for fractionalization or with a view toward distribution and has no
contract, agreement, arrangement or undertaking with any person to sell,
transfer or pledge the Common Stock.
9. SURVIVAL OF OBLIGATIONS OF ALL OTHER LOAN DOCUMENTS. All of the
terms, conditions, representations, warranties and covenants of the Loan
Documents, to the extent not inconsistent with the terms hereof, shall remain in
full force and effect unaffected by this Forbearance Agreement. It is intended
that the Loan Documents and this Agreement shall be interpreted in an expansive
way so as to increase the rights, remedies and privileges available to the
Lender and not to diminish them. If any provision of this Agreement or the Loan
Documents is held to be unenforceable, such unenforceability shall not adversely
affect any of the other terms or conditions of the Loan Documents and this
Agreement.
10. ADDITIONAL DOCUMENTS AND FUTURE ACTIONS. Obligors will, at their
sole cost, take such actions and provide Lender from time to time with such
agreements, financing statements and additional instruments, documents or
information as Lender may in its discretion deem necessary or advisable to
perfect, protect, maintain or enforce the security interests in the Collateral,
to permit Lender to protect or enforce its interest in the Collateral, or to
carry out the terms of the Forbearance Documents. Obligors hereby authorize and
appoint Lender as their attorney-in-fact, with full power of substitution, to
take such actions as Lender may deem advisable to protect the Collateral and its
interests thereon and its rights hereunder, to execute on Obligors' behalf and
file at Obligors' expense financing statements, and amendments thereto, in those
public offices deemed necessary or appropriate by Lender to establish, maintain
and protect a continuously perfected security interest in the Collateral, and to
execute on
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Obligors' behalf such other documents and notices as Lender may deem advisable
to protect the Collateral and its interests therein and its rights hereunder.
Such power being coupled with an interest is irrevocable. Obligors irrevocably
authorize the filing of a carbon, photographic or other copy of this Agreement,
or of a financing statement, as a financing statement and agree that such filing
is sufficient as a financing statement.
11. REPRESENTATIONS AND WARRANTIES. In consideration of the forbearance
extended herein by Lender, Obligors hereby represent and warrant, as applicable,
which representations and warranties shall survive until all Lender Indebtedness
and all other obligations of'the Obligors to Lender are paid and satisfied in
full, as follows:
(a) All representations and warranties of Obligors set forth
in the Loan Documents are true and complete in all material respects as of the
date hereof.
(b) No condition or event exists or has occurred which would
constitute an event of default under the Loan Documents (or would, upon the
giving of notice or the passage of time, or both constitute an event of default)
other than the Existing Default.
(c) The execution and delivery of this Agreement by Obligors
and all documents and agreements to be executed and delivered pursuant to the
terms hereof;
(i) has been duly authorized by all requisite corporate
action by Borrower and Treacher's;
(ii) will not conflict with or result in the breach of or
constitute a default (upon the passage of time, delivery of notice or both)
under the Articles of Incorporation or By-Laws of Borrower or Treacher's or any
applicable statute, law, rule, regulation or ordinance or any indenture,
mortgage, loan or other document or agreement to which any Obligor is a party or
by which any of them is bound or affected; or
(iii) will not result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any of the property or
assets of any Obligor, except liens in favor of the Lender or as permitted
hereunder or under the Loan Documents.
12. CERTAIN FEES, COSTS, EXPENSES AND EXPENDITURES. Obligors will pay
all of the Lender's expenses in connection with the review, preparation,
negotiation, documentation and closing of this Agreement and the consummation of
the transactions contemplated hereunder, including without limitation, fees,
disbursements, expenses, appraisal costs and fees and expenses of counsel
retained by Lender and all fees related to filings, recording of documents and
searches, whether or not the transactions contemplated hereunder are
consummated. Nothing contained herein shall limit in any manner whatsoever
Lender's right to reimbursement under any of the Forbearance Documents.
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13. DEFAULTS. Occurrence of any one or more of the following shall
constitute a default hereunder and under each of the Loan Documents:
(a) Any default or event of default under any of the
Forbearance Documents, or any event which, with the giving of notice or passage
of time or both, would constitute a default or event of default hereunder or
thereunder; or
(b) The failure of any Obligor to comply with the terms of
this Agreement.
Notwithstanding the foregoing, in no event shall the Existing Default
constitute a default hereunder.
14. REMEDIES. Upon the occurrence of an event of default hereunder, at
the option of Lender, upon the expiration or earlier termination of the
forbearance period provided herein, and without'further notice or demand, which
notice and demand is expressly waived by Obligors, (a) the entire outstanding
Lender Indebtedness shall be immediately due and payable; and/or (b) Lender may
(i) terminate its obligation to forbear hereunder; and (ii) exercise each and
every right and remedy under the Forbearance Documents, at law, in equity or
otherwise.
15. RELEASE AND INDEMNIFICATION. In order to induce Lender to enter
into this Agreement, Obligors hereby agree as follows:
(a) Release. Obligors hereby fully, finally and forever
acquit, quitclaim, release and discharge Lender and its officers, directors,
employees, agents, successors and assigns of and from any and all obligations,
claims, liabilities, damages, demands, debts, liens, deficiencies or cause or
causes of action to, of or for the benefit (whether directly or indirectly) of
Obligors, at law or in equity, known or unknown, contingent or otherwise,
whether asserted or unasserted, whether now known or hereafter discovered,
whether statutory, in contract or in tort, as well as any other kind or
character of action now held, owned or possessed (whether directly or
indirectly) by Obligors on account of, arising out of, related to or concerning,
whether directly or indirectly, proximately or remotely (i) the negotiation,
review, preparation or documentation of the Loan Documents or Forbearance
Documents, (ii) the administration of the obligations evidenced by the
Forbearance Documents; (iii) the enforcement, protection or preservation of
Lender's rights under the Forbearance Documents, and/or (iv) any action or
inaction by Lender in connection with any such documents, instruments and
agreements (the "Released Claims"), from the beginning of the world to the date
hereof.
(b) Covenant Not to Litigate. In addition to the release
contained in Subsection 15(a) above, and not in limitation thereof, Obligors
hereby agree never to prosecute, nor voluntarily aid in the prosecution of, any
action or proceeding relating to the Released Claims, whether by claim,
counterclaim or otherwise.
16. NO COURSE OF DEALING.
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(a) Future Forbearance. Nothing contained herein shall be
deemed to obligate Lender to enter into any other forbearance agreements or to
waive any Events of Default.
17. COMMUNICATIONS AND NOTICES. All notices, requests and other
communications made or given in connection with this Agreement or under the Loan
Documents shall be in writing and, unless receipt is stated herein to be
required, shall be deemed to have been validly given if delivered personally to
the individual or division or department to whose attention notices to a parry
are to be addressed, or by private cagier, telecopy (with original forwarded by
first class mail), or registered or certified mail, return receipt requested, in
all cases with postage prepaid, addressed as follows, until some other address
(or individual or division or department for attention) shall have been
designated by notice given by one party to the other:
To Borrower or Treacher's:
M.I.E. Hospitality, Inc.
0000 Xxxxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy Number: 000-000-0000
With a copy of all notices and communications to Borrower or Treacher's
to:
XxXxxxxxxx & Xxxxx, LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esquire
Telecopy Number: 212-448-0066
To Lender:
Xxxxx Industrial Enterprises. Inc.
000 X. 0xx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxxx
Telecopy Number: 000-000-0000
With a copy to:
White and Xxxxxxxx LLP
0000 Xxx Xxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esquire
Telecopy Number; 000-000-0000
18. WAIVERS. In connection with any proceedings hereunder or in
connection with any of the Lender Indebtedness, including without limitation any
action by Lender in replevin, foreclosure or other court process or in
connection with any other action related to the Lender Indebtedness or the
transactions contemplated hereunder, each Obligor waives:
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(a) all errors, defects and imperfections in such
proceedings;
(b) all benefits under any present or future laws exempting
any property, real or personal, or any part of any proceeds thereof from
attachment, levy or sale under execution, or providing for any stay of execution
to be issued on any judgment recovered in connection with the Lender
Indebtedness or in any replevin or foreclosure proceeding, or otherwise
providing for any valuation, appraisal or exemption;
(c) all rights to inquisition on any real estate, which real
estate may be levied upon pursuant to a judgment obtained in connection with any
of the Lender Indebtedness and sold upon any writ of execution issued thereon in
whole or in part, in any order desired by Lender;
(d) presentment for payment, demand, notice of demand, notice
of non payment, protest and notice of protest of any of the Lender Indebtedness;
(e) any requirement for bonds, security or sureties required
by statute, court rule or otherwise;
(f) any demand for possession of any collateral prior to
commencement of any Suit;
(g) any right to require or participate in the marshaling of
any Obligor's property;
(h) all benefits under present and future laws permitting
termination of any Surety's obligations by delivery of notice or otherwise; and
(i) all rights to claim or recover attorney's fees and costs
in the event that such Obligor is successful in any action to remove, suspend or
enforce a judgment entered by confession.
19. COMMERCIAL REASONABLENESS. Obligors further agree that any
disposition of collateral by the Lender at any public auction sale performed by
a duly licensed auctioneer, regularly engaged in sale by auction, is a sale in
conformity with reasonably commercial practices, and any disposition of
collateral at such auction sale is a commercially reasonable disposition in
accordance with Section 9-507 of the Code.
20. EXCLUSIVE JURISDICTION. Obligors hereby consent to the exclusive
jurisdiction of any state or federal court located within the Commonwealth of
Pennsylvania, and irrevocably agree that, subject to the Lender's election, all
actions or proceedings relating to the Forbearance Documents or the transactions
contemplated hereunder shall be litigated in such courts, and Obligors waive any
objection which they may have based on improper venue or forum non conveniens to
the conduct of any proceeding in any such court and waive personal service of
any and all process upon them, and consent that all such service of process be
made by
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mail or messenger directed to it them at the address set forth in Section 17 for
Obligors. Nothing contained in this Section 20 shall affect the right of Lender
to serve legal process in any other manner permitted by law or affect the right
of Lender to bring any action or proceeding against any Obligor or their
respective property in the courts of any other jurisdiction.
21. CONSENT TO RELIEF FROM THE AUTOMATIC STAY. Obligors hereby agree
that if, during the forbearance term provided herein, any Obligor shall (i)
file, or be the subject of, any bankruptcy petition filed with any bankruptcy
court of competent jurisdiction, (ii) be the subject of any order for relief
issued under such Title 11 of the U.S. Code, as amended, (iii) file or be the
subject of any petition seeking any reorganization; arrangement, composition,
readjustment, liquidation, dissolution or similar relief for debtors, (iv) seek,
consent to or acquiesce in the appointment of any trustee, receiver, conservator
or liquidator, (v) be the subject of any order, judgment or decree filed against
any Obligor for any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any present or future federal
or state act or law relating to bankruptcy, insolvency, or other relief for
debtors, the Lender immediately, and without further action by the Lender, shall
be entitled to relief from any automatic stay imposed by section 362 of Title 11
of the U.S. Code, as amended, or from any other stay or suspension of remedies
imposed in any other manner with respect to the exercise of any rights and
remedies by the Lender against its collateral and any proceeds thereof which
otherwise is available to the Lender under Article 9 of the Code or other
applicable state law of any jurisdiction in which any collateral or proceeds may
now or hereafter be located. Obligors hereby irrevocably and unconditionally
waive their right to file any Answer, Objection or Response to any such relief
requested by the Lender and consent to such immediate relief and agrees to take
any and all actions necessary or required of it to entitle the Lender to the
relief provided in this Section 21.
22. CONFESSION OF JUDGMENT. OBLIGORS HEREBY AUTHORIZE AND EMPOWER ANY
ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF
PENNSYLVANIA, OR IN ANY OTHER JURISDICTION WHICH PERMITS THE ENTRY OF JUDGMENT
BY CONFESSION, TO APPEAR FOR OBLIGORS AT ANY TIME AFTER THE OCCURRENCE OF AN
EVENT OF DEFAULT HEREUNDER OR UNDER ANY OF THE FORBEARANCE DOCUMENTS IN ANY
ACTION BROUGHT AGAINST OBLIGORS HEREUNDER OR UNDER THE FORBEARANCE DOCUMENTS AT
THE SUIT OF LENDER, WITH OR WITHOUT COMPLAINT OR DECLARATION FILED, WITHOUT STAY
OF EXECUTION, AS OF ANY TERM OR TIME, AND THEREIN TO CONFESS OR ENTER JUDGMENT
AGAINST OBLIGORS FOR THE ENTIRE LENDER INDEBTEDNESS TOGETHER WITH AN ATTORNEY'S
COLLECTION COMMISSION OF FIFTEEN PERCENT (15%) OF THE AGGREGATE AMOUNT OF THE
FOREGOING SUMS, BUT IN NO EVENT LESS THAN $5,000.00; AND FOR SO DOING THIS
AGREEMENT OR A COPY HEREOF VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT.
THE AUTHORITY GRANTED HEREIN TO
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CONFESS JUDGMENT SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF BUT SHALL
CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL THE
LENDER INDEBTEDNESS.
23. TIME OF ESSENCE. Time is of the essence of this Agreement.
24. INCONSISTENCIES. To the extent of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of the Loan
Documents, the terms and conditions of this Agreement shall prevail. All terms
and conditions of the Loan Documents not inconsistent herewith shall remain in
full force and effect and tare hereby ratified and confirmed by Obligors.
25. BINDING EFFECT. This Agreement and all rights and powers granted
hereby will bind and inure to the benefit of the parties hereto and their
respective permitted successors and assigns.
26. SEVERABILITY. The provisions of this Agreement and all other
Forbearance Documents are deemed to be severable, and the invalidity or
unenforceability of any provision shall not affect or impair the remaining
provisions which shall continue in full force and effect.
27. NO THIRD PARTY BENEFICIARIES. The rights and benefits of this
Agreement and the Loan Documents shall not inure to the benefit of any third
party.
28. MODIFICATIONS. No modification of this Agreement or any of the
Loan Documents shall be binding or enforceable unless in writing and signed by
or on behalf of the party against whom enforcement is sought.
29. HOLIDAYS. If the day provided herein for the payment of any amount
or the taking of any action falls on a Saturday, Sunday or public holiday at the
place for payment or action, then the due date for such payment or action will
be the next succeeding business day.
30. LAW GOVERNING. This Agreement has been made, executed and
delivered in the Commonwealth of Pennsylvania and will be construed in
accordance with and governed by the laws of such Commonwealth.
31. EXHIBITS AND SCHEDULES. All exhibits and schedules attached hereto
are hereby made a part of this Agreement.
32. HEADINGS. The headings of the Articles, Sections, paragraphs and
clauses of this Agreement are inserted for convenience only and shall not be
deemed to constitute a part of this Agreement.
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33. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
34. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties hereto concerning the subject matter set forth herein and
supersedes all prior or contemporaneous oral and/or written agreements and
representations not contained herein concerning the subject mailer of this
Agreement.
35. JOINT AND SEVERAL LIABILITY. Obligors hereby acknowledge and
confirm that all agreements, covenants, conditions and provisions of this
Agreement are and shall be the joint and several obligations of each Obligor.
36. WAIVER OF RIGHT TO TRIAL BY JURY. OBLIGORS AND LENDER WAIVE ANY
RIGHT TO TRIAL BY JURY ON ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a)
ARISING UNDER THIS AGREEMENT OR ANY OTHER DOCUMENT OR INSTRUMENT REFERRED TO
HEREIN OR DELIVERED IN CONNECTION HEREWITH, OR (b) IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF ANY OBLIGOR WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR DELIVERED IN
CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE
WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE. OBLIGORS AND LENDER AGREE AND
CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF OBLIGORS AND LENDER TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY. OBLIGORS ACKNOWLEDGE THAT THEY HAVE HAD AN OPPORTUNITY TO CONSULT
WITH COUNSEL REGARDING THIS AGREEMENT AND WITH REGARD TO SECTION IN PARTICULAR
AND THAT THEY FULLY UNDERSTAND ITS TERMS, CONTENT AND EFFECT, AND THAT THEY
VOLUNTARILY AND KNOWINGLY AGREE TO THE TERMS OF THIS SECTION.
37. RESULTS OF NEGOTIATION. Obligors acknowledge that they have been
represented by counsel in connection with the execution and delivery of this
Agreement and that the terms and conditions of this Agreement are the result of
negotiation between the parties hereto. Obligors further acknowledge that they
have knowingly (a) waived their right to (i) be heard prior to the entry of a
judgment by confession and understand that, upon such entry, such judgment shall
become a lien on all real property of Obligors in the county where such judgment
is entered; (ii) trial by jury; and (iii) certain other fights as set forth in
detail in Sections 20 and 21 above, and (b) consented to relief from the
automatic stay. Obligors acknowledge that such
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waivers and consents constitute a material inducement for Lender to enter into
this Agreement and they have been fully
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed the day and year first above written.
Attest: M.I.E. HOSPITALITY, INC.
By:
-------------------------------- --------------------------------
Name: Name:
-------------------------- --------------------------------
Title: Title:
----------------------- --------------------------------
Attest: XXXXXX XXXXXXXX'X, INC.
By:
-------------------------------- --------------------------------
Name: Name:
-------------------------- --------------------------------
Title: Title:
----------------------- --------------------------------
Attest: XXXXX INDUSTRIAL ENTERPRISES, INC.
By:
-------------------------------- --------------------------------
Name: Name:
-------------------------- --------------------------------
Title: Title:
----------------------- --------------------------------
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