Exhibit 10.6 Forbearance Agreement dated February 2, 2001 between the Company
and Crusader Bank.
FORBEARANCE AGREEMENT
This Agreement (hereinafter referred to as the "Agreement") is
made this 2nd day of February 2001, by and among Crusader Bank, a federally
chartered savings bank, having an office address at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 (hereinafter referred to as "Bank"), First
Chesapeake Financial Corporation, a Virginia corporation, having a mailing
address at 00 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 (hereinafter
referred to as "First Chesapeake"), Collateral One Mortgage Corporation, a
Virginia corporation, having a mailing address at 00 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 (hereinafter referred to as "Collateral One")
(First Chesapeake and Collateral One are sometimes hereinafter referred to
collectively as the "Borrower") and Xxxx Xxxxxxxxx, an individual, residing at
0000 Xxxxxxxxxx Xxxx, a/k/a Xxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000
(hereinafter referred to as "Xxxxxxxxx").
BACKGROUND
----------
WHEREAS, on February 5, 1999 the Bank and the Borrower executed a
Business Loan Agreement (the "Business Loan Agreement"), wherein the Bank agreed
to lend the Borrower the sum of One Million Five Hundred Thousand Dollars
($1,500,000.00) (the "Loan") for the acquisition of Mortgage One Concepts, Inc.;
and
WHEREAS, on February 5, 1999 the Borrower executed and delivered
to the Bank a promissory note in the amount of One Million Five Hundred Thousand
Dollars ($1,500,000.00) (the "Note"); and
WHEREAS, Xxxx Xxxxxxxxx, President of First Chesapeake and
President of Collateral One, by a certain Mortgage dated February 5, 1999 in the
amount of One Million Two Hundred Thousand Dollars ($1,200,000.00) and recorded
in the Office of the Recorder of Deeds in and for Xxxxxxxxxx County,
Pennsylvania, in Book 8621 Page 0876 et seq., granted and conveyed unto the
Bank, its successors and assigns, a lien on the property located at 0000
Xxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxx, as more specifically described in
Exhibit A attached hereto and made a part hereof (the "Villanova Property"), to
secure payment of a guaranty of the Note by Xxxxxxxxx, which mortgage was
amended by agreement dated November 10, 1999 and recorded in the Office of the
Recorder of Deeds for Xxxxxxxxxx County on April 11, 2000 in Deed Book 8679,
page 0734 et seq., increasing the lien of the Mortgage securing the Guaranty, as
amended, to One Million Eight Hundred Thousand Dollars ($1,800,000.00) (the
"Villanova Mortgage"); and
WHEREAS, on February 5, 1999, Xxxxxxxxx executed and delivered
to the Bank the Guaranty (the "Xxxxxxxxx Guaranty"), wherein Xxxxxxxxx agreed to
guarantee and become surety for payment of the Note up to One Million Two
Hundred Thousand Dollars ($1,200,000.00); and
WHEREAS, on or about November 10, 1999 the liability of
Xxxxxxxxx under the Xxxxxxxxx Guaranty was increased to One Million Eight
Hundred Thousand Dollars ($1,800,000.00) by an amendment to Guaranty; and
WHEREAS, on February 5, 1999, Xxxxxxx Xxxxxxxxx executed and
delivered to the Bank a Commercial Guaranty, wherein Xxxxxxx Xxxxxxxxx agreed to
guarantee and become surety for payment of the Note up to One Million Two
Hundred Thousand Dollars ($1,200,000.00); and
WHEREAS, on February 5, 1999, Xxxx Xxxxx ("Xxxxx") executed
and delivered to the Bank a Commercial Guaranty (the "Xxxxx Guaranty"), wherein
Xxxxx agreed to guarantee and become surety for payment of the Note up to One
Million Two Hundred Thousand Dollars ($1,200,000.00); and
WHEREAS, on February 5, 0000, Xxxxxx X. Xxxxxxx ("Xxxxxxx")
executed and delivered to the Bank a Commercial Guaranty (the "Xxxxxxx
Guaranty"), wherein Xxxxxxx agreed to guarantee and become surety for payment of
the Note up to One Million Two Hundred Thousand Dollars ($1,200,000.00); and
WHEREAS, on February 5, 1999, Xxxx Xxxxxxxx ("Papandon")
executed and delivered to the Bank a Commercial Guaranty (the "Papandon
Guaranty"), wherein Papandon agreed to guarantee and become surety for payment
of the Note up to One Million Two Hundred Thousand Dollars ($1,200,000.00); and
WHEREAS, on February 5, 1999, Xxxxxx Xxxxxxx and Xxxxxxxx
Xxxxxxx, his wife (jointly referred to as "Xxxxxxx") executed and delivered to
the Bank a Commercial Guaranty (the "Xxxxxxx Guaranty"), wherein Xxxxxxx agreed
to guarantee and become surety for payment of the Note up to Three Hundred
Thousand Dollars ($300,000.00); and
WHEREAS, on November 10, 1999, the Bank and First Chesapeake
executed an Amendment of Mortgage and Other Loan Documents (the "Amendment"),
wherein the Borrower requested the Bank to amend the Note to increase the loan
amount to Two Million One Hundred Eight Thousand and Five Hundred Sixty-Six
Dollars ($2,108,566.00) (the "Increased Loan Amount") and to extend the maturity
date to November 4, 2000 (the "Extended Maturity Date"), modify the Villanova
Mortgage to increase the amount secured by the Villanova Property and modify the
Xxxxxxxxx Guaranty to increase the amount of the Xxxxxxxxx Guaranty and the
Villanova Mortgage to One Million Eight Hundred Thousand Dollars ($1,800,000.00)
and the Bank agreed to amend the Note, the Villanova Mortgage and the Xxxxxxxxx
Guaranty on the terms, covenants and conditions set forth therein; and
WHEREAS, by document dated November 9, 1999 (which date the
Bank, Xxxxxxxxx and Delaware Avenue Development Corporation, a Pennsylvania
corporation ("DADC") agree was an error and was intended to be, and is actually,
November 10, 1999) the Bank, Xxxxxxxxx and DADC entered into an Assignment of
Partnership Income and Security Agreement (the "Assignment Agreement") wherein
DADC agreed to assign its income interest in Liberty Landing Associates, a
Pennsylvania general partnership ("Liberty Landing") formed pursuant to that
certain Joint Venture Agreement dated June 26, 1987, by and between DADC and
Delaware-Washington Corporation, a Pennsylvania corporation
("Delaware-Washington") (the "Joint Venture Agreement") to secure the Increased
Loan Amount guaranteed by Xxxxxxxxx, the President of DADC, under the Guaranty,
as amended; and
WHEREAS, Xxxxxxxxx is the sole shareholder of DADC; and
WHEREAS, the Assignment Agreement contemplated the consent
and execution of Delaware-Washington and Delaware-Washington did not execute the
consent; and
WHEREAS, the Note, as amended, matured on November 4, 2000;
and
WHEREAS, the Borrower failed to pay to the Bank all
outstanding principal and accrued interest due and payable under the Note, as
amended, by the Extended Maturity Date; and
WHEREAS, the Borrower has requested that the Bank forbear from
exercising its rights and remedies, at law or in equity, under the Business Loan
Agreement, the Note, the Villanova Mortgage and the Amendment and the Bank has
agreed to forbear from exercising its rights and remedies, at law or in equity,
under the Business Loan Agreement, the Note, the Villanova Mortgage and the
Amendment on the terms, covenants and conditions set forth herein.
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NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants and promises contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, intending to be legally bound hereby, covenant and agree as follows:
1. Incorporation of Background. The recitals contained in the
---------------------------
Background are incorporated into and made a substantive part of this Agreement
and the Borrower acknowledges and represents that the statements set forth
therein are true and correct.
2. Capitalized Terms. All capitalized terms not otherwise defined in
-----------------
this Agreement shall have the meanings ascribed to such terms in the Business
Loan Agreement, the Note, the Villanova Mortgage, the Amendment, the Xxxxxxxxx
Guaranty, the Xxxxxxx Guaranty, the Xxxxx Guaranty; the Papandon Guaranty, the
Xxxxxxx Guaranty and the Assignment Agreement (collectively, including this
Agreement and all Joinders hereto, the Xxxxxxxxx Pledge, the DADC Pledge and the
First Chesapeake Pledge, are referred to as the "Loan Documents").
3. Ratification of Loan Documents. The Borrower hereby ratifies,
------------------------------
confirms and reaffirms in all respects, and without condition, all the terms,
covenants and conditions set forth in the Loan Documents, and hereby agrees to
remain unconditionally liable to the Bank in accordance with the respective
terms, covenants and conditions of the Loan Documents, as the same may be
modified herein.
4 (a) Reaffirmation of Guarantees. Each of Mendelson, Salzman,
---------------------------
Xxxxx, Papandon and Xxxxxxx (collectively the "Guarantors") expressly reaffirms
his or her Confession of Judgment and every other provision of their respective
Guaranty Agreements. In the event of any default by Borrower hereunder, the
Guarantors understand that the Bank may proceed against any of them or any
collateral granted by them in connection with the Business Loan Agreement, the
Note or the other Loan Documents.
b) Amendment to Xxxxxxxxx Guaranty. The Xxxxxxxxx Guaranty is
-------------------------------
hereby amended to provide that it is limited to One Million Eight Hundred
Thousand Dollars ($1,800,000.00) of the principal amount due under the Note, as
amended, plus interest, attorney's fees, costs of collection and any other sums
due under the Loan Documents and shall be reduced by the amounts of the First
Mandatory Payment, the Second Mandatory Payment, the Third Mandatory Payment and
the Fourth Mandatory Payment, as defined below, that are applied to reduce the
principal due under the Note. Mandatory Weekly Payments or other payments shall
not reduce the liability of Xxxxxxxxx under the Xxxxxxxxx Guaranty. Upon payment
in full of its debt, Xxxxxxxxx shall be subrogated to the Bank's rights against
Xxxxxx and Xxxxxxxx Xxxxxxx under the Xxxxxxx Guaranty unless Xxxxxx or Xxxxxxxx
Xxxxxxx shall have previously paid $300,000.00 in satisfaction of their
guaranty.
5. Amendment to the Note. The Note is hereby amended to provide
---------------------
that the maturity date shall be ON DEMAND. However, Bank agrees that in the
absence of the occurrence of an Event of Default, Bank will not demand payment
before June 30, 2001. Note is further amended to provide that Borrower shall
make mandatory payments in the amount of Four Hundred Thousand Dollars
($400,000.00) on February 15, 2001 (the "First Mandatory Payment"), One Hundred
Thousand Dollars ($100,000.00) on April 15, 2001 (the "Second Mandatory
Payment"), One Hundred Thousand Dollars ($100,000.00) on May 15, 2001 (the
"Third Mandatory Payment")and One Hundred Thousand Dollars ($100,000.00) on June
15, 2001 (the "Fourth Mandatory Payment"). Borrower shall also make mandatory
weekly payments in the amount of Ten Thousand Dollars ($10,000.00), commencing
on February 9, 2001 and continuing on the Friday of each week thereafter to be
applied to sums due under the Note in the sole discretion of the Bank (the
"Mandatory Weekly Payments"). In addition, Borrowers shall make a $5,000.00
payment on each of March 2, 2001 and March 30, 2001, which shall be in addition
to the Mandatory Weekly Payments for these dates. At Closing Borrower will pay
Bank the sum of Sixteen Thousand One Hundred Seventy Five Dollars ($16,175.00),
reflecting past due payments for the month of January, 2001. Notwithstanding the
foregoing, Borrower shall make an additional payment each month to ensure that
the total payment for the month is equal to the greater of (a) total monthly
interest payments payable under the Note for any month plus the required payment
of Borrower under paragraph 5(d) of the Amendment to pay to Bank Fifty Percent
(50%) of its cash flow, or (b) the total of the Mandatory Weekly Payments for
that month. Notwithstanding the foregoing, Borrower shall be
-3-
deemed to have complied with the provisions of Section 5 hereof relating to the
First, Second, Third, and Fourth Mandatory Payment, provided Borrower delivers
to Bank an aggregate of cash and stock subscription agreements satisfactory to
Bank providing for identifiable and dedicated accounts for payment of
obligations under said subscription agreements for each amount required, and
provided all subscription agreements are funded within two weeks of the date set
forth herein for such payments.
6. Conditions Precedent to Forbearance. The Bank agrees to
-----------------------------------
forbear from exercising the rights and remedies available to it under the
Business Loan Agreement, the Note, the Villanova Mortgage and the other Loan
Documents, contingent upon the following:
(a) simultaneously with the execution of this Agreement,
DADC execute and deliver to the Bank that certain Assignment of Partnership
Income in respect of its partnership interest in the Liberty Landing;
(b) Xxxxxxxxx execute and deliver to the Bank a Subordinate
Pledge Agreement pledging his shares in First Chesapeake (the "Xxxxxxxxx
Pledge") and an Assignment Separate from Certificate executed in blank, all in
form and substance satisfactory to the Bank;
(c) Xxxxxxxxx execute and deliver to the Bank an Agreement
pledging his shares in DADC (the "DADC Pledge") and an Assignment Separate from
Certificate executed in blank, all in form and substance satisfactory to the
Bank;
(d) Xxxxxxxxx deliver to the Bank all stock of DADC;
(e) First Chesapeake execute and deliver to the Bank an
Agreement pledging its shares in Collateral One (the "First Chesapeake Pledge")
and an Assignment Separate from Certificate executed in blank, all in form and
substance satisfactory to the Bank;
(f) Borrower deliver to the Bank good standing certificates
certified by the Secretary of State of Borrower's state of incorporation;
(g) Borrower deliver to the Bank (i) a certified copy of
the employment agreement by and between Collateral One and Xxxxxxx Xxxxxxxxx and
all amendments thereto (the "Everslage Employment Agreement") evidencing that
the Employment Agreement remains in full force and effect; (ii) a statement of
Xxxxxxx Xxxxxxxxx and Collateral One certifying that the Everslage Employment
Agreement is in full force and effect as of the date of the certification, and
agreement that it will not be amended without the prior written consent of the
Bank; (iii) certified copy of the term insurance contract on the life of Xxxxxxx
Xxxxxxxxx; (iv) a collateral assignment to Bank of the Term Life Insurance
Policy on the life of Xxxxxxx Xxxxxxxxx, in form and substance satisfactory to
Bank; (v) a certified copy of the employment agreement by and between Collateral
One and Xxxxxxx Xxxxxx and all amendments thereto (the "Xxxxxx Employment
Agreement") evidencing that the Xxxxxx Employment Agreement remains in full
force and effect, and agreement that it will not be amended without the prior
written consent of the Bank; (vi) a statement of Xxxxxxx Xxxxxx and Collateral
One certifying that the Xxxxxx Employment Agreement is in full force and effect
as of the date of the certification; (vii) a certified copy of the term
insurance contract on the life of Xxxxxxx Xxxxxx; and (viii) a collateral
assignment to Bank of the Term Life Insurance Policy on the life of Xxxxxxx
Xxxxxx, in form and substance satisfactory to Bank.
(h) Borrower execute or obtain the proper execution by all
pertinent parties to the any documents determined, in the sole discretion of the
Bank or its counsel, necessary to grant and/or perfect the Bank's security
interest in and to any collateral pledged or intended to be pledged in
connection with the execution of this Agreement, the Business Loan Agreement,
the Loan, the Villanova Mortgage, the Amendment, the Assignment Agreement and
the Loan Documents;
(i) Xxxxxxxxx deliver to the Bank proof of satisfaction of
the lien placed on the Villanova Property by Xxxxxxx Xxxxxxx (Xxxxxxxxxx County,
Pennsylvania Docket #96-05243);
(j) Xxxxxxxxx produce and deliver to the Bank evidence of
payment of all real estate taxes, water and sewer charges and insurance premiums
due and payable on the Villanova Property;
(k) DADC pay to the Bank the sum of Eleven Thousand Two
Hundred Seventy-Nine Dollars and Fifteen Cents ($11,279.15) to pay off Loan No.
01-50002053;
(l) DADC execute an Assignment of Partnership Income and
Security Agreement.
(m) all corporations deliver appropriate resolutions
authorizing the execution and delivery of this Agreement by the officers of the
corporations and all documents and instruments contemplated hereby, certified by
the secretary of such corporation;
-4-
(n) DADC assign to Bank all fees due or to become due under
Section 3.5 of the Joint Venture Agreement;
(o) simultaneously herewith, Xxxxxxxxx shall execute that
certain Amendment to Mortgage and Loan Documents III of even date herewith; and
(p) Xxxxxxxxx Family Trust and the Xxxxxxxxx Family
Children's Trust execute and deliver to the Bank that certain Amendment to
Construct Loan Agreement, Mortgages and Forbearance Agreement of even date
herewith.
7. Prohibition on Distributions. Collateral One is prohibited
----------------------------
from making any distribution, payment of management fee or other compensation,
dividend payment, transfer, loan or hypothecation of property to First
Chesapeake and First Chesapeake is prohibited from making any distribution,
payment of management fee to its shareholders, dividend payment, transfer, loan
or hypothecation of property to any of its shareholders without the prior
written consent of the Bank. Notwithstanding the foregoing, in the event that
Borrower delivers, the First Mandatory Payment, the Second Mandatory Payment,
the Third Mandatory Payment, the Fourth Mandatory Payment and each of the
Mandatory Weekly Payments, on a timely basis, and no Event of Default has
occurred, the Bank hereby consents to the payment of any monthly distribution
from Collateral One to First Chesapeake for bona fide third party expenses or
employee compensation (excluding payments to any Guarantor of First Chesapeake
(except Xxxxx)or any third party or employee affiliated with, or related to, any
Guarantor of First Chesapeake except Xxxxx), provided that such distributions do
not exceed excess cash flow, as defined in paragraph 5(d) of the Amendment over
the monthly payments due Bank under Section 5 hereof.
8. Release and Waiver of Claims. The Borrowers, their officers,
----------------------------
directors, trustees, employees, personal representatives, successors and assigns
and guarantors (collectively, the "Releasors"), remise, release, quitclaim and
forever discharge the Bank and any other corporation, partnership, trust or
other entity controlled by, controlling or under common control with the Bank,
and their respective employees, officers, directors, contractors, shareholders,
partners, agents, attorneys (including without limitation Xxxxxxx Gadon & Xxxxx,
P.C., and each of its shareholders and employees), accountants, heirs,
executors, administrators, and personal representatives (collectively, the
"Releasees"), of and from any and all damages, losses, expenses, claims,
liabilities, demands, actions, causes of action, suits, judgments, orders,
decrees, and any execution thereon, whether at law, in equity or otherwise,
which Releasors had, have, or may in the future have, of any kind or nature
whatsoever, past, present or future, known or unknown, and whether the same were
or could have been discovered, against any other party, fixed or contingent,
from the beginning of time to the date of these presents and forever, under the
laws of any state or the United States of America, or any other nation, which
Releasors may have or claim to have against Releasees as a result of any
transaction or agreement between Releasors and Releasees.
9. Waiver of Defenses. Releasors hereby confirm, acknowledge
------------------
and agree that they have no defenses, charges, claims, demands, pleas or offsets
whatsoever in law or in equity to the indebtedness evidenced by the Business
Loan Agreement, the Note, the Amendment and the other Loan Documents, or to
their obligations due thereunder.
10. Covenant Not to Xxx. Releasors covenant and agree not to
-------------------
institute legal or equitable proceedings or any actions or to assert any claims
or defenses described in paragraphs 8 and 9 above against Releasees. If
Releasors do institute such actions or proceedings or raise such claims or
defenses, the parties agree that Releasees' remedies at law may be inadequate
and therefore equitable relief including, without limitation, injunctive relief
shall be available to Releasees to, inter alia, preclude Releasors from pursuing
any such action and entitle Releasees to payment from Releasors of any
attorney's fees, costs and expenses which may be incurred as a result of
responding to or defending against any such action. The remedies of Releasers
hereunder at law or in equity shall run concurrently and are cumulative.
11. Indemnity. The Borrower, for themselves and all those
---------
claiming under or through them, agree to protect, indemnify, defend and hold
harmless the Bank, its directors, officers and employees, from and against any
and all liability, expense, or damage of any kind or nature and from any suits,
claims or demands, including reasonable legal fees and expenses, arising out of
this Agreement, the Business Loan Agreement, the Note, the
-5-
Villanova Mortgages, or any other documents previously, contemporaneously, or
hereafter executed by either of them. This obligation specifically shall survive
the repayment of the Note, as amended.
12. Events of Default. The following acts or omissions shall
-----------------
constitute an event of default ("Event of Default") under this Agreement:
(a) the failure by the Borrower to pay any sums due
hereunder at the times and in the manner set forth herein;
(b) the failure by the Borrower to perform or observe any
term, condition, warranty, requirement or provision of this Agreement,
specifically including but not limited to, the covenant not to xxx;
(c) the occurrence of any default or Event of Default under
the Business Loan Agreement, the Note, the Villanova Mortgage, the Amendment,
the Assignment Agreement or the other Loan Documents;
(d) any representation of Borrower being materially untrue
or misleading as of the date hereof; or
(e) any amendment or modification to the Everslage
Employment Agreement or the Xxxxxx Employment Agreement without the prior
written consent of the Bank, including, but not limited to, any release of the
non-compete provisions therein.
13. Notices. All Notices and other communications required or
-------
permitted under this Agreement shall be in writing and shall be deemed to have
been given or made: if hand delivered, when delivered; if by facsimile or other
method of electronic transmission, when transmitted; if by nationally recognized
overnight courier service, on the following day; or if mailed by regular mail,
on the day of deposit in the United States mail, postage prepaid, registered or
certified mail, return receipt requested, addressed to a party and sent to its
address set forth below or such other address as such party may designate from
time to time by notice to the other parties in the manner set forth in this
Amendment.
To First Chesapeake:
00 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
Fax: 000.000.0000
To Collateral One:
00 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
Fax: 000.000.0000
To the Bank:
Xxxxxx X. Xxxxxxxx, President
Crusader Savings Bank, FSB
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: 000.000.0000
and:
-6-
Xxxxx Xxxx
Crusader Savings Bank, FSB
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: 000.000.0000
with a copy to:
Xxxxxx X. Xxxxxxxxxx, Esquire
Xxxxxxx Gadon & Xxxxx, P.C.
0000 Xxxxxx Xxxxxx -- 0xx Xxxxx
Xxxxx Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: 000.000.0000
14. Cross Default. Any Event of Default by the Borrower or any
-------------
other party to the Loan Documents under this Agreement or any of the Loan
Documents, shall constitute an event of default under any note, instrument, loan
agreement, guaranty, or other agreement executed by Xxxxxxxxx or the Xxxxxxxxx
Family Trust or the Xxxxxxxxx Family Children's Trust (the "Trusts") (except
for: (i) that certain promissory note dated July 25, 1997 made by Xxxxxxxxx to
the Bank, as amended on August 22, 1997 and on May 5, 1999; and (ii) that
certain promissory note dated December 26, 1997 given by Xxxxxxxxx to the Bank
and any mortgages given to secure such notes), or any agreement given in
connection with any other obligation of any of them to Bank, as a result of
which Bank may exercise any and all of its rights and remedies under this
Agreement, the Loan Documents or any other document, loan agreement, guaranty or
other instrument executed by Xxxxxxxxx or the Trusts.
15. Notice and Opportunity to Cure. Other than for the First,
------------------------------
Second, Third, and Fourth Mandatory Payments required by this Agreement,
Borrower shall have a five (5) day grace period after written notice from the
Bank to cure any monetary default under this Agreement or the Loan Documents and
a ten (10) day grace period after written notice from the Bank to cure any
non-monetary default under this Agreement or the Loan Documents, all such grace
periods to run concurrently with any notice and grace period presently existing
under the Loan Documents.
16. Representations and Warranties. Borrowers represent and
------------------------------
warrant as follows:
(a) each of First Chesapeake and Collateral One (i) is duly
organized and validly existing under the state of their incorporation and each
is duly qualified and is in good standing in each jurisdiction in which the
failure to so qualify would have an adverse effect on the financial condition,
operations, business, properties or assets of First Chesapeake or Collateral
One, respectively; (ii) has the requisite power and authority to effect the
transactions contemplated hereby; and (iii) has all requisite power and
authority and the legal right to own, pledge, mortgage and operate its property,
and to conduct its business as now or currently proposed to be conducted;
(b) the execution, delivery and performance by Borrower of
this Agreement are within the respective powers of Borrower and Borrower has
been duly authorized by all necessary corporate action, including the consent of
shareholders where required;
(c) this Agreement has been duly executed and delivered by
Borrower;
(d) this Agreement is, and each of the other agreements to
which Borrower is or will be a party, when delivered hereunder or thereunder,
will be, a legal, valid and binding obligation of Borrower, enforceable against
it in accordance with its terms;
(e) the persons executing this Agreement on behalf of the
corporations are authorized to do so by all necessary corporate resolutions;
(f) there is no agreement between Collateral One and any of
the Guarantors; and
(g) there are no amounts presently due First Chesapeake, or
any affiliate or shareholder of First Chesapeake, from Collateral One except
that certain $600,000 loan from First Chesapeake to Collateral One. No advances
shall be made by First Chesapeake or any affiliates to Collateral One and
Collateral One will not make advances to First Chesapeake except as permitted
herein. So long as the Loan shall remain unpaid First Chesapeake hereby
acknowledges that any indebtedness of Collateral One to First Chesapeake is
subject and
-7-
subordinate to the rights of the Bank and in the event of an occurrence of an
Event of Default which results in the Bank exercising its rights under the First
Chesapeake Pledge Agreement, First Chesapeake shall assign such indebtedness to
the Bank or its assignee.
17. Estoppel. Borrower hereby acknowledges, warrants and
--------
represents that as of the date hereof the principal balance due under the Note
is Two Million One Hundred Seven Thousand Three Hundred Twenty-One Dollars and
Nineteen Cents ($2,107,321.19) and the interest and other charges due under the
Note through January 31, 2001 is $105,470.18.
18. No Waiver. This Agreement is not and shall not be deemed to
---------
be a waiver of any provision of the Business Loan Agreement, the Note, the
Villanova Mortgage, the Amendment, the Assignment Agreement or any of the other
Loan Documents, any event of default or of any other default which may now exist
or hereafter occur under the Business Loan Agreement, the Note, the Villanova
Mortgage, the Amendment, the Assignment Agreement or any of the Loan Documents,
any obligation thereunder or under this Agreement, the documents executed in
connection therewith or any obligations thereunder.
19. Jury Trial Waiver. THE BORROWER WAIVES THE RIGHT TO A JURY
-----------------
TRIAL IN ANY ACTION HEREUNDER, OR ALLEGING ANY CLAIM BASED ON THIS AGREEMENT OR
THE BUSINESS LOAN AGREEMENT OR THE NOTE.
20. Consent to Jurisdiction. The Borrower and the Bank
-----------------------
irrevocably agree to the exclusive jurisdiction and venue of the Courts of the
Common Pleas of Philadelphia, Pennsylvania and/or the United States District
Court for the Eastern District of Pennsylvania in any and all disputes, actions
or proceedings between the Bank and the Borrower, whether arising hereunder or
under any other agreement or undertaking; and the Borrower and the Bank
irrevocably agree to service of process by certified mail, return receipt
requested, to the respective parties at the addresses listed in Paragraph 13 of
this Agreement. Nothing herein contained shall in any manner prevent or preclude
Bank or its nominee from bringing any one or more actions against the Borrower
in any jurisdiction in the United States or elsewhere.
21. Carryover of this Agreement in the Event of Bankruptcy. If
------------------------------------------------------
Borrower or any entity with which the Borrower is associated files a petition
for relief under Title 11 of the United States Code, as amended ("Bankruptcy
Code"), or is adjudicated a Debtor pursuant to 11 U.S.C.(s).101 et seq., under
the Bankruptcy Code, the Borrower agrees as follows:
(a) Relief from the Automatic Stay. In the event Borrower
------------------------------
or an entity with which the Borrower is associated files a petition for relief
with any bankruptcy court of competent jurisdiction, or is subjected to any
petition under the Bankruptcy Code which results in any order for relief under
the Bankruptcy Code or is adjudicated a Debtor pursuant to 11 U.S.C.(S).101 et
seq., the Bank shall be given automatic and immediate relief from the stay under
(S).362(d) of the Bankruptcy Code to enforce its rights and remedies hereunder,
and the Borrower hereby waives any right to object to such relief or to seek
reimpositioning of the stay, if available to the Borrower. If the foregoing
portion of this paragraph is deemed unenforceable as against the Borrower, then
the Borrower hereby agrees not to defend against or contest any motion or
pleading filed by the Bank seeking relief from the automatic stay;
(b) No Extension of Automatic Stay of 11 U.S.C.(S).362. In
--------------------------------------------------
the event Borrower or an entity with which the Borrower is associated files a
petition for relief with any bankruptcy court of competent jurisdiction or is
adjudicated a Debtor pursuant to 11 U.S.C.(S).101 et seq., the Borrower hereby
-- ---
waives any rights to seek any extension to them of the automatic stay provisions
of 11 U.S.C.(S).362;
(c) No Renewal of Exclusivity Period, Relief from Automatic
-------------------------------------------------------
Stay. The Borrower agrees that if an entity with which the Borrower is
----
associated is a debtor in a Chapter 11 proceeding under the Bankruptcy Code, and
the bankruptcy court enters a Cash Collateral Order, or Order affecting the
Bank's rights to the Villanova Property, then, subject to Court approval, that
Order shall provide that if the debtor does not file a Plan within any
exclusivity period pursuant to 11 U.S.C.(S).1121, the Bank shall, without the
necessity of any additional notice to the debtor or to other creditors, any
hearing or any further order of the Court, have immediate relief from stay under
Bankruptcy Code (s).362(d) to implement and enforce the provisions of this
Agreement, the Construction Loan Agreement, the Note or any Loan Document;
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(d) Further Relief from Automatic Stay. If the Bank
----------------------------------
requests relief from the automatic stay, neither the Borrower nor any person on
the Borrowers' behalf shall object to or oppose the Bank from having immediate
relief from the automatic stay under (s).362(d) of the Bankruptcy Code; and
(e) Perfection. During the pendency of any bankruptcy case
----------
of Borrower or any entity associated with the Borrower, if it is determined that
any of the rights granted to the Bank hereunder are security interests or liens,
they shall be deemed perfected and fully enforceable without the necessity of
the filing of any documents or commencement of proceedings otherwise required
under non-bankruptcy law for the perfection or enforcement of security
interests, with such perfection and enforcement being binding upon the Trusts
and any subsequently appointed trustee, either in Chapter 11 or under any other
Chapter of the Bankruptcy Code, and upon other creditors of the Borrower and/or
any entity with which the Borrower is associated, who have extended or who may
hereafter extend secured or unsecured credit to the Borrower and/or any such
entities with which the Borrower may be associated.
22. Assumption of Collateral One. Collateral One hereby assumes,
----------------------------
jointly and severally, any and all obligations of First Chesapeake under the
Amendment.
23. Waiver of Fees under Amendment. The Bank hereby waives any
------------------------------
right to any fees under paragraph 5(c) of the Amendment that have not been
previously paid or capitalized as part of the loan balance.
24. Entire Agreement. This Agreement, the documents given in
----------------
connection herewith, the Business Loan Agreement, the Note, the Villanova
Mortgage, the Amendment, the Assignment Agreement, and the Loan Documents,
contain the entire agreement between the parties relating to the transactions
contemplated hereby, and supercedes all oral statements and prior writings with
respect thereto.
25. Additional Acts. Each party hereto shall, from time to time,
---------------
execute, acknowledge and deliver such further instruments and perform such
additional acts as the other party may reasonably request to effectuate the
intent of this Agreement.
26. Burdens and Benefits. This Agreement shall be binding upon
--------------------
and shall inure to the benefit of the respective legal representatives,
successors and assigns of Bank, or its nominee, and Borrower, their legal
representatives, successors and assigns.
27. No Novation. The Borrower acknowledges and agrees that the
-----------
execution of this Agreement by Bank is not intended nor shall it be construed as
a novation of the Business Loan Agreement, the Note, the Villanova Mortgage, the
Amendment, the Assignment Agreement or any of the Loan Documents. All of the
terms and provisions of the Business Loan Agreement, the Note, the Villanova
Mortgage, the Amendment, the Assignment Agreement and the Loan Documents shall
continue to remain in full force and effect, except as expressly modified
herein. By executing this Agreement, the Bank does not waive any of its claims
against the Borrower under the Business Loan Agreement, the Note, the Villanova
Mortgage, the Amendment, the Assignment Agreement, any of the Loan Documents,
this Agreement or any of its rights and remedies at law or in equity.
28. Headings. The headings and sub-headings contained in the
--------
titling of this Agreement are intended to be used for convenience only and shall
not be used or deemed to limit or diminish any of the provisions of this
Agreement.
29. Severability. Whenever possible each provision of this
------------
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but, if any provision of this Agreement shall be found to be
illegal, invalid, prohibited, or unenforceable for any reason whatsoever under
such law, such provision shall be ineffective to the extent of such illegality,
invalidity, prohibition or unenforceability without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
30. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original and each of which when
taken together shall constitute one and the same instrument and shall be binding
upon each of the undersigned as fully and completely as if all had signed the
same instrument.
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31. Governing Law. This Agreement shall be governed and
-------------
construed in accordance with the laws of the Commonwealth of Pennsylvania
(without giving effect to the conflicts of laws principles thereof) applicable
to contracts made and to be performed in Pennsylvania.
32. Amendment. This Agreement may not be amended, modified,
---------
changed, waived, terminated, or discharged orally, but only by an agreement in
writing signed by all parties hereto.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby have caused this Agreement to be duly executed and delivered the day and
year first written above.
CRUSADER BANK
By: _____________________________(SEAL)
Xxxxxx X. Xxxxxxxx, President
Attest: FIRST CHESAPEAKE FINANCIAL
CORPORATION
__________________________ By: _____________________________(SEAL)
Xxxx Xxxxxxxxx, Chief Executive
Officer and Chairman of the Board
of Directors
Attest: COLLATERAL ONE MORTGAGE CORPORATION
__________________________ By: _____________________________(SEAL)
Xxxx Xxxxxxxxx, Chairman of the
Board of Directors
JOINDER AND CONSENT
The undersigned, being guarantors of the obligations of First Chesapeake
hereby join in the execution of this Forbearance Agreement dated as of this day
of January, 2001, for the purpose of consenting to the terms and conditions
containing herein and, intending to be legally bound agree to be bound by the
provisions of this Agreement.
Witness: GUARANTORS:
__________________________ _____________________________(SEAL)
Xxxx Xxxxxxxxx
Witness:
__________________________ _____________________________(SEAL)
Xxxx Xxxxx
Witness:
__________________________ _____________________________(SEAL)
Xxxxxx X. Xxxxxxx
Witness:
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__________________________ _____________________________(SEAL)
Xxxx Xxxxxxxx
Witness:
__________________________ _____________________________(SEAL)
Witness: Xxxxxx Xxxxxxx
__________________________ _____________________________(SEAL)
Xxxxxxxx Xxxxxxx
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