INTEREST DEFERRAL AGREEMENT AND LIMITED WAIVER
AND
LIMITED WAIVER
This
Interest Deferral Agreement and Limited Waiver (the “Agreement”) is made
effective as of January 1, 2011 (the “Effective Date”), by and between DAL
Group, LLC, a Delaware limited liability company (“DAL”) and Law Offices of
Xxxxx X. Xxxxx, P.A., a professional association licensed to practice law in the
State of Florida (“DJS”), Xxxxx Holding Company – PT, Inc., a Florida
corporation (“PT”), and Xxxxx Holding Company – DS, Inc., a Florida corporation
(“DS”). DAL, DJS, PT and DS are referred to from time to time in this
Agreement individually as a “Party” and together as the “Parties.”
Background
A. DAL
and DJS are parties to that certain Term Note, dated as of January 15, 2010 (the
“Term Note”).
B. Pursuant
to Section 1(a) of the Term Note, DAL agreed to pay to DJS interest equal to
three percent (3.0%) per annum, payable monthly, in arrears, on the first day of
each month (the “Monthly Interest Payments”).
C. Pursuant
to Section 1(b) of the Term Note, DAL agreed to pay to DJS principal amounts
equal to (i) DAL’s Net EBITDA for the prior calendar month plus (ii) an amount
equal to all cash DAL receives from DJSP Enterprises Inc.’s (formerly Chardan
2008 China Acquisition Company’s) exercise of certain warrants (the “Monthly
Principal Payments”), payable on the 10th day of
each consecutive calendar month.
D. The
Parties desire to defer the payment of certain Monthly Interest Payments
otherwise due under the Term Note, and to waive the payment of certain Monthly
Principal Payments otherwise due under the Term Note, each as set forth
below.
E. The
Parties desire to waive events of defaults under the Loan Documents (as defined
in a certain Loan, Security and Pledge Agreement dated as of January 15, 2010
between the Parties (the “Loan Agreement”)).
Now,
therefore, the Parties hereby agree as follows.
Agreement
1. The
Parties hereby agree that all Monthly Interest Payments due from DAL to DJS
between January 1, 2011 and April 1, 2011 pursuant to the Term Note, including
the interest payments deferred by the Interest Deferral Agreement and Limited
Waiver between the Parties dated as of November 1, 2010, shall not be due and
payable until April 1, 2011, or, if earlier, the payment in full of all amounts
due by DAL to BA Note Acquisition LLC and Banc of America Leasing & Capital,
LLC, and all amounts due by DAL pursuant to a certain Senior Loan, Security and
Pledge Agreement dated as of January 15, 2010 between DAL and the lenders
signatory thereto.
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2. The
Parties hereby agree that DAL shall not be required to make Monthly Principal
Payments from January 1, 2011 until April 10, 2011 and beginning April 10, 2011,
DAL shall begin making Monthly Principal Payments based upon DAL’s Net EBITDA
for the prior month, if any.
3. The
Parties hereby agree that DAL shall not be obligated to comply with the Minimum
Payment Requirement of Section 7.1 of the Loan Agreement (the “Minimum Payment
Requirement”) for monthly periods ending before April 1, 2011.
4. Notwithstanding
the foregoing, DAL will resume Monthly Interest Payments, Monthly Principal
Payments and compliance with the Minimum Payment Requirement upon the payment in
full of amounts due by DAL to BA Note Acquisition LLC or Banc of America Leasing
& Capital, LLC prior to the dates set forth above.
5. DJS
hereby grants a limited waiver of any default or Event of Default under the Loan
Documents that has arisen or may arise solely as a result of DAL’s deferral of
Monthly Interest Payments, Monthly Principal Payments or the Minimum Payment
Requirement, in accordance with this Agreement. This limited waiver
shall not be deemed to waive any additional or subsequent failures to deliver
payments pursuant to the Term Note.
6. DJS
hereby grants a limited waiver through March 31, 2011 of any default or Event of
Default under the Loan Documents arising from DAL’s default on indebtedness due
by DAL to BA Note Acquisition LLC and Banc of America Leasing & Capital,
LLC, receipt of notice of such a default from such lenders, including, but not
limited to, a letter dated November 5, 2010, a letter dated December 8, 2010,
and acceleration of such indebtedness.
7. DJS
hereby consents to the acquisition of Americal Title Company by Timios, Inc.,
and hereby grants a limited waiver of Section 6.3 of the Loan Agreement with
respect to such transaction.
8. In
addition to the other waivers granted pursuant to this Agreement, DJS hereby
grants a limited waiver through March 31, 2011 of any default or Event of
Default based on breach or violation of the following provisions of the Loan
Agreement: Section 5.2 (Compliance with Laws) for periods prior to
January 1, 2011, Section 5.9 (Notice of Proceedings) for failure to give notice
during periods prior to January 1, 2011, and Section 5.14 (Reporting
Requirements) through April 1, 2011.
9. This
Agreement is limited to the specific matters described above and shall not be
deemed to be a waiver of or a consent to any other matter, including without
limitation, any failure to comply with any other provision of the Term Note or
the Loan Documents, or a default or any event of default, whether now in
existence or subsequently arising.
[Signatures
on following page]
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IN
WITNESS WHEREOF, the Parties have executed this Agreement as of January 12,
2011.
| DAL GROUP, LLC | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxx | |||
| President | |||
| LAW OFFICES OF XXXXX X. XXXXX, P.A. | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxx | |
| Xxxxx X. Xxxxx | |||
| President | |||
| XXXXX HOLDING COMPANY – PT, INC. | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxx | |
| Xxxxx X. Xxxxx | |||
| President | |||
| XXXXX HOLDING COMPANY – DS, INC. | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxx | |
| Xxxxx X. Xxxxx | |||
| President | |||
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JOINDER BY AND AGREEMENT OF
GUARANTOR
Each of the undersigned, DJS
Processing, LLC, Professional Title and Abstract Company of Florida, LLC, and
Default Servicing, LLC (each a “Guarantor,” and collectively the “Guarantors”),
being guarantors of the obligations under the Term Note (as such term is defined
in that certain Interest Deferral Agreement and Limited Waiver of even date
herewith, by and between DAL Group, LLC (“DAL”), and Law Offices of Xxxxx X.
Xxxxx, P.A. (“DJS”), Xxxxx Holding Company – PT, Inc. (“PT”), and Xxxxx Holding
Company – DS, Inc. (“DS” and collectively with DJS and PT the “Xxxxx Entities”)
(the “Waiver”)) pursuant to each certain Guaranty dated as of January 15, 2010
executed by each Guarantor in favor of the Xxxxx Entities (collectively, the
“Guaranty”), hereby represents and warrants and acknowledges and agrees to the
following:
1. Reaffirmation of
Guaranty. The Guaranty constitutes the valid, legally binding
obligation of Guarantor in favor of the Xxxxx Entities, enforceable against
Guarantor, in accordance with its terms. By its execution hereof,
Guarantor waives and releases any and all defenses, affirmative defenses,
setoffs, claims, counterclaims and causes of action of any kind or nature which
any Guarantor has asserted, or might assert, against any of the Xxxxx Entities
which in any way relate to or arise out of the Guaranty or any of the other Loan
Documents. Each Guarantor consents to
the execution and delivery of the Waiver by DAL and agree and acknowledges that
the liability of such Guarantor under the Guaranty shall not be diminished in
any way by the execution and delivery of the Waiver or by the consummation of
any of the transactions contemplated thereby.
2. Agreements of
Guarantor. By its execution hereof, Guarantor agrees to the
execution of the Waiver by DAL.
3. Defined
Terms. All terms that are used herein that are not defined
herein shall have the meaning ascribed to them in the Waiver.
[Signatures
on following page]
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Each Guarantor has executed
and delivered this Joinder and Agreement to be effective as of the Effective
Date of the Waiver.
| GUARANTOR: | |||
| DJS PROCESSING, LLC | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxx | |||
| President | |||
| PROFESSIONAL TITLE AND ABSTRACT COMPANY OF FLORIDA, LLC | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxx | |||
| President | |||
| DEFAULT SERVICING, LLC | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxx | |||
| Vice President | |||
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