FORBEARANCE AGREEMENT
Exhibit
10.130
THIS
FORBEARANCE AGREEMENT (this "Agreement")
is made
as of this ____ day of February, 2007 by and among LASALLE
BANK, NATIONAL ASSOCIATION, AS TRUSTEE OF MARATHON REAL ESTATE CDO 2006-1
GRANTOR TRUST,
successor-in-interest to Marathon Structured Finance Fund L.P., a Delaware
limited partnership (the “Lender”),
SOUTH
BEACH RESORTS, LLC, a Florida limited liability company (the “Borrower”),
XXXX
XXXXXX, an individual resident of the State of Florida ("Pauzar")
and
XXXXXXX XXXXXX, an individual resident of the State of Florida ("Wright",
and
together with Pauzar, the "Principals",
and
the Principals together with Borrower, the "Borrowing
Parties").
RECITALS
A.
Lender
and Borrower are parties to that certain Loan Agreement dated as of June 30,
2005 (the "Loan
Agreement"),
pursuant to which Lender agreed to make a loan to Borrower (the "Loan")
the
sum of up to Nine Million and NO/100 Dollars ($9,000,000.00).
B.
The
Loan
is evidenced by that certain Promissory Note dated June 30, 2005 (the
"Note"),
and
is secured by the lien of that certain Mortgage, Assignment of Rents and
Security Agreement dated June 30, 2005 and recorded among the land records
of
Dade County, Florida July 11, 2005 in Official Records Book 23557, Page 3073
(the "Mortgage").
C.
Payment
of certain of the obligations of Borrower pursuant to the Loan Documents is
guaranteed by Pauzar and Xxxxxx pursuant to the terms of, inter alia, that
certain Guaranty (Exceptions to Nonrecourse Liability) dated as of June 30,
2005
(the "Guaranty").
As
used herein, the term "Loan
Documents"
shall
mean the Loan Agreement, the Note, the Mortgage, the Guaranty and any and all
other documents evidencing, securing and/or governing the Loan whether now
existing or hereafter executed and delivered.
D.
The
Loan
matured by its terms on January 11, 2007, and Borrower has failed to repay
the
Loan in accordance with the terms of and as required by the Loan Documents,
which failure is an "Event of Default" (as defined in the Loan Agreement) under
the Loan Documents (the "Existing
Default").
E.
Borrower
is indebted to Lender for the outstanding principal balance of the Note, accrued
interest thereon, late charges, the "Exit Fee" (as defined in the Loan
Agreement) and costs, expenses and attorneys' fees (collectively, all
liabilities of Borrower to Lender, whether now existing or hereafter arising,
including accrued interest and all reasonable costs and attorneys' fees, shall
be referred to herein as the "Obligations").
F.
Borrower
has requested that Lender waive the Existing Default, and Lender has
conditionally agreed to waive such Existing Default, on the terms set forth
below provided that, in the event that any Event of Default or Other Default
occurs during the Forbearance Period (as hereinafter defined) or prior to the
payment in full of the Obligations of the Borrower to Lender, such waiver shall
be null and void.
NOW,
THEREFORE, in consideration of the mutual undertakings set forth below, and
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, and intending to be legally bound hereby, the parties
agree
as follows:
1.
Incorporation
of Recitals; Defined Terms.
(a) The
foregoing Recitals are incorporated herein as though set forth at length below.
(b)
Capitalized
terms used and not otherwise defined herein shall have the meanings set forth
in
the respective Loan Documents.
(c)
As
used
herein, the term "Bankruptcy
Code"
shall
have the meaning set forth in Section 4(a) of this Agreement.
(d)
As
used
herein, the term "Forbearance
Period"
shall
mean the Initial Forbearance Period or the Extended Forbearance Period, as
the
case may be.
(e)
As
used
herein, the term "Interest
Differential"
shall
have the meaning set forth in Section 6(d) of this Agreement.
(e)
As
used
herein, the term "Interests"
shall
have the meaning set forth in Section 10(h) of this Agreement.
(f)
As
used
herein, the term "Liabilities"
shall
have the meaning set forth in Section 5(g) of this Agreement.
(g)
As
used
herein, the term "Mezzanine
Lender"
shall
mean International Property Investors AG, or another entity owned and/or
controlled by Sir Xxxxx Xxxxxxx.
(h)
As
used
herein, the term "Mezzanine
Loan"
shall
mean a loan secured by the equity interests in Borrower (and not by a lien
on
the Property) in form and content satisfactory to Lender.
(i)
As
used
herein, the terms "Released
Parties"
and
"Releasing
Parties"
shall
have the meanings set forth in Section 5(a) of this Agreement.
2.
Acknowledgements.
Borrowing Parties hereby acknowledge, ratify, admit, stipulate, and agree,
without precondition or qualification, as follows:
a.
Each
of
the Recitals contained above in this Agreement is true, correct and complete
in
all material respects.
b.
Borrower
and Principals (i) entered into the Loan Documents to which they are parties
and
(ii) are entering into this Agreement of their own free will, without coercion
or threat of any kind from Lender or from any other person, fully understanding
the terms hereof (including the waiver of certain material rights afforded
by
law), and are fully aware that they may have potentially advantageous
alternatives to entering into this Agreement. Borrower and Principals
acknowledge, stipulate and agree that any other alternative would present a
material risk to their detriment.
c.
The
Loan
Documents constitute valid and binding obligations of Borrower and Principals,
enforceable against each of them in accordance with their respective
terms.
d.
As
of
February 7, 2007, the Obligations consisted of the following:
Principal $ ____________
Interest
Due $ ____________
Default
Interest $ ____________
Late
Charges
$
____________
Total
$
____________
In
addition, Borrower is obligated to pay to and reimburse Lender for all amounts
incurred in connection with the Obligations and/or the Existing Defaults,
including, without limitation, costs and expenses of Lender's legal counsel,
which amounts constitute part of the aggregate Obligations.
e.
Except
as
specifically provided in Section 6 (c) and (d) below, Borrower's obligation
to
repay the Obligations is unconditional and is without defense, counterclaim,
recoupment or offset. The Obligations are immediately due and payable in full.
f.
There
exist one or more defaults under the terms of the Loan Documents, any and all
notices required to be given by Lender have in fact been given and received,
all
applicable grace periods have expired without cure having been effected, and
Borrowing Parties hereby waive all such notice provisions and grace periods
in
connection with Existing Default.
g.
Borrower
has no defenses, rights of set-off or recoupment, causes of action or claims
or
counterclaims with respect to the Obligations and/or the liens and security
interests granted to Lender pursuant to the terms of the Loan Documents, and
all
of such liens and security interests are enforceable by Lender.
h.
Borrowing
Parties shall derive material benefit by virtue of the execution and delivery
of
this Agreement and the performance of the parties' obligations
hereunder.
3.
Reaffirmation
of Obligations.
Borrowing Parties reaffirm and ratify that Borrower is indebted and obligated,
directly or indirectly, to Lender in an amount equal to the Obligations as
set
forth in Section 2(d) above. Interest shall continue to accrue on and forms
a
part of the Obligations pursuant to the terms of the Loan Documents as set
forth
herein. Borrower reaffirms and ratifies that, pursuant to the terms of the
Loan
Documents, it is liable to pay or reimburse applicable costs, fees and
reasonable attorneys' fees and expenses related to the Obligations incurred
by
Lender, all of which form a part of the Obligations. Borrower hereby promises
to
pay to the order of Lender the Obligations, plus any and all accrued interest
thereon and accrued costs, fees and reasonable attorneys’ fees and expenses in
accordance with the Loan Documents as modified by the terms hereof.
4.
Bankruptcy
Proceedings.
a. Each
of
Borrowing Parties hereby agrees that if such party becomes a debtor or
debtor-in-possession under Chapter 7, Chapter 11 or Chapter 13 of Title 11,
U.S.C. and/or any Federal or state statutes/or and regulations related thereto
(the "Bankruptcy
Code"),
as
the case may be, he/she will not seek injunctive relief against Lender, or
otherwise oppose or take action to, object to, hinder or delay, the exercise
of
Lender's rights and remedies under the Loan Documents or hereunder. Without
limiting the generality of the foregoing, it is the intent of the parties that
no injunctive relief against Lender shall be sought under Section 105 or any
other provision of the Bankruptcy Code by Borrowing Parties, and that no
Borrowing Party shall seek any expansion of the stay provided by Section 362
of
the Bankruptcy Code. In exchange for the consideration provided hereunder to
the
Borrowing Parties, each of the Borrower Parties hereby expressly waives with
prejudice the effect of the automatic stay of section 362 of the Bankruptcy
Code
with respect to the Loan and the Guaranty.
b. Each
of
Borrowing Parties for him/herself (a) represents that such Borrowing Party
has
no present or current intent (i) to file any voluntary petition under the
Bankruptcy Code or in any instance to seek relief, protection, reorganization,
liquidation, dissolution or similar relief for debtors under any local, state,
federal or other insolvency law or laws providing for relief of debtors in
equity, or (ii) directly or indirectly to cause any involuntary petition under
any Chapter of the Bankruptcy Code to be filed against a Borrowing Party or
directly or indirectly cause such Borrowing Party to become the subject of
any
proceedings pursuant to any local, state, federal or other bankruptcy,
dissolution, liquidation or insolvency law or laws, either at the present time
or at any time hereafter. Borrower Parties each represent and acknowledge that
(i) they will be unable to confirm a plan of reorganization in a bankruptcy
case
that they may become the subject of, (ii) they will not seek to use Lender's
cash collateral (as that term is defined in Section 361 of the Bankruptcy Code),
and (iii) they will not seek to obtain post-petition debtor-in-possession
financing with lien priority senior to that of Lender pursuant to Section 364
of
the Bankruptcy Code.
c. Each
of
Borrowing Parties covenants and acknowledges that in the event such Borrowing
Party shall (i) be the subject of any petition under the Bankruptcy Code, (ii)
be the subject of any order for relief issued under the Bankruptcy Code which
is
not dismissed within sixty (60) days of the filing thereof, (iii) file or be
the
subject of any petition seeking 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, (iv) seek or consent to or fail to contest the appointment
of any trustee, receiver, conservator, or liquidator, (v) be the subject of
any
order, judgment, or decree entered by any court of competent jurisdiction
approving a petition filed against such party 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 relief for debtors, Borrowing Parties shall not
oppose Lender's attempt to seek relief from any automatic stay imposed by
Section 362 of the Bankruptcy Code, and acknowledges and agrees that such
Borrowing Party has not right or basis to oppose motion seeking relief from
the
automatic stay brought by the Lender. Each Borrower Party hereby specifically
consents to the entry of an order by the Bankruptcy Court granting relief from
the automatic stay in favor of the Lender.
d. Each
Borrowing Party represents that neither the execution and delivery of this
Agreement nor the performance of any actions required hereunder is being
consummated with or as a result of any actual intent to delay or defraud any
entity to which such party is now or will hereafter become
indebted.
Borrower
agrees that each of the foregoing provisions shall be construed and enforced
broadly and to the fullest extent permitted by law.
5.
Release;
Lender's Liability.
a. Borrower,
Guarantors, their successors and assigns (including, without limitation, any
estate, debtor, trustee, receiver or assignee for the benefit of creditors)
to
the fullest extent permitted by law (collectively, the “Releasing
Parties”),
hereby release, remise, forever discharge and forgive Lender, its shareholders,
directors, affiliates, officers, employees, servicers, agents, attorneys,
representatives, predecessors, successors and assigns (collectively, the
“Released
Parties”),
of
and from any and all claims, causes, causes of action, demands, counterclaims,
cross claims, damages, complaints, suits, bonds, losses, liabilities,
obligations, commitments, contribution, indemnity or otherwise, at law or equity
or mixed, known, unknown, suspected, unsuspected, asserted, unasserted, which
the Releasing Parties or any of them, now have, had or may in the future have
against the Released Parties or any of them, which arose prior to the execution
and delivery of this Agreement and relate to the Loan Documents and or the
Obligations..
b. Lender
shall not be liable for any claims, suits, actions, costs, damages, liabilities
or expenses, or incidental, consequential, special or punitive damages
(“Liabilities”)
in
connection with the subject matter of this Agreement other than Liabilities
caused by the gross negligence or willful misconduct of Lender and Borrower
hereby agrees to indemnify and hold harmless Lender and its affiliates and
the
directors, officers, employees and agents of any of them, and the successors
and
assigns of Lender from and against any and all Liabilities arising from or
in
connection with any acts or omissions taken by Borrower in connection with
this
Agreement or the performance of Borrower's duties under this Agreement, other
than those Liabilities caused by the gross negligence or willful misconduct
of
Lender.
6.
Forbearance
Period.
(a) During
the Forbearance Period (as defined below), Lender agrees to forbear from
exercising any right or remedy against Borrowing Parties with respect to the
Existing Default, provided (i) there shall occur no Event of Default other
than
the Existing Default and (ii) Borrower shall continue to make monthly payments
of accrued interest on the Payment Date as contemplated by Section 2.2.1 of
the
Loan Agreement. Nothing herein shall be construed as an agreement by Lender
from
asserting any affirmative defense, cross claim, counterclaim or third party
claim in any action or proceeding that is now pending or may hereafter be
commenced. Lender's agreement to forbear from exercising any rights or remedies
in accordance with this paragraph shall commence as of the date hereof and
continue until 5:00 PM Eastern time, April 11, 2007, unless earlier terminated
as a result of the occurrence of an "Additional Default" (as defined below)
(the
"Initial Forbearance
Period").
Unless extended pursuant to the terms of paragraph (b) below, upon and after
the
expiration of the Initial Forbearance Period, Lender shall be free to exercise
any right or remedy to which Lender heretofore or hereafter shall be entitled
without regard to this paragraph. Nothing contained herein shall be deemed
to
limit Borrower's obligations to make all payments due under the Loan Documents
other than the repayment of the principal balance, all of which obligations
shall remain in full force and effect.
(b) Borrower
shall have one (1) option to extend the term of the Initial Forbearance Period
for an additional ninety (90) days, i.e.,
until
5:00 PM Eastern time, July 11, 2007 (the "Extended
Forbearance Period"),
provided (i) no Other Default shall have occurred, (ii) Borrower delivers
written notice to Lender no later than ten (10) Business Days prior to the
expiration of the Initial Forbearance Period electing to extend the Initial
Forbearance Period and (iii) and on or before July 3, 2007, Borrower shall
cause
to be delivered to Lender the sum of Five Hundred Thousand ($500,000.00), for
application to the outstanding principal balance of the Loan.
(c) During
the Forbearance Period, so long as no Additional Default shall occur, Borrower
shall not be obligated to pay the Late Charges accruing as contemplated by
Section 8 of the Note. Provided that Borrower pays the Obligations in full
prior
to the expiration of the Forbearance Period, Lender shall waive such Late
Charges in their entirety.
(d) During
the Forbearance Period, so long as no Additional Default shall occur, although
interest shall accrue at the Default Rate as contemplated by Section 7.2 of
the
Note, Borrower shall continue to pay interest at the Interest Rate, and the
difference between interest accruing at the Interest Rate and the Default Rate
(the "Interest
Differential")
shall
be deferred. Provided that Borrower pays the Obligations in full prior to the
expiration of the Forbearance Period, Lender shall waive the Interest
Differential in its entirety.
7.
Costs
and Expenses.
Borrower shall be liable to and shall pay to Lender all of the
following:
(a) Principal.
Upon execution and delivery hereof (and in no event later than February 8,
2007), Borrower shall instruct the Escrow Agent to release the $750,000
currently held in escrow pursuant to the terms of the Escrow Agreement to
Lender, for application to the outstanding principal balance of the
Loan.
(b) Interest.
Upon execution and delivery hereof (and in no event later than February 8,
2007), Borrower shall pay all accrued interest due under the Loan Documents
to
Lender.
(c) Legal
Fees. Borrower shall pay all of Lender's attorneys' fees and expenses incurred
in connection with the preparation and negotiation of this Agreement and the
enforcement of Lender's rights and remedies hereunder and/or under the Loan
Documents, as the case may be.
(d) Lender's
Costs and Expenses. Borrower shall pay all costs and expenses incurred by or
on
behalf of Lender relating to the Loan, Borrower's default, and/or the execution
and delivery of this Agreement.
8.
Good
Faith.
The
parties hereto have negotiated and entered into this Agreement in good faith.
9.
Value.
As a
consequence of Lender's covenants, releases, waivers, settlement, and
forbearance under this Agreement, Borrowing Parties have received reasonably
equivalent value, as construed under Section 548 of the Bankruptcy Code, and
fair consideration, as construed under applicable local and state laws, for
their obligations as set forth in this Agreement.
10.
Other
Representations, Warranties and Covenants.
Borrower
and each Guarantor represent, warrant and covenant to Lender for itself as
follows:
a. It
has
the full power, authority and legal right to execute, deliver and comply with
this Agreement, and this Agreement constitutes the valid and legally binding
obligation of such party, enforceable against such party in accordance with
its
terms.
b. It
does
not require any consent, approval or other authorization of any court,
administrative agency or other governmental authority in connection with its
execution and delivery of or compliance with this Agreement.
c. Its
execution and delivery of and compliance with this Agreement will not conflict
with or result in a breach of any applicable law, judgment, order, writ,
injunction, decree, rule or regulation of any court, administrative agency
or
other governmental authority, or of any provision of any agreement or other
document or instrument to which such party is a party or by which such party
is
bound, and such action will not result in the creation or imposition of any
lien, charge or encumbrance upon any property of such party in favor of anyone
other than Lender.
d. There
is
no action, suit or proceeding pending or threatened against or affecting such
party or its property before any court, administrative agency or other
governmental authority, or which brings into question the validity of the
transactions contemplated hereby. Borrower and/or Guarantor, as the case may
be,
has not received actual or constructive notice or threat of the commencement
of
any such action against such party.
e. It
is
current and not in default of its obligations to any and all governmental taxing
authorities, including, without limitation, local, regional, and federal
authorities.
f. Lender
has no further obligation to disburse any Required Renovation Funds pursuant
to
the Loan Agreement.
g. All
further payments of interest on the Loan shall be made at the Applicable
Interest Rate, and not at the Payment Rate.
h. Borrower
acknowledges that (i) by notice dated January 18, 2007, Lender instructed
SunTrust Bank to hold solely for account of Lender all funds on deposit in
the
"Deposit Account" (as defined in the Loan Agreement) pursuant to that certain
Restricted (Springing) Account Agreement, and (ii) Borrower has no right, title
or interest in or to the Deposit Account or the proceeds thereof.
i. As
of the
date hereof, SBR Holding Company, LLC, a Florida limited liability company
is
the owner of one hundred percent (100%) of the membership interests in Borrower
(the "Interests").
Contemporaneously with or subsequent to the execution and delivery of this
Agreement, SBR Holding Company, LLC intends to sell, assign, transfer and/or
convey its right, title and interest in and to the Interests to American Leisure
Holdings, Inc., a Nevada corporation. By its execution of this Agreement, Lender
acknowledges and consents to the transfer of the Interests described herein;
provided, however, in no event shall any party liable for all or any part of
the
Obligations (including, without limitation, Principals) be released or deemed
released by virtue of any such transfer of the Interests.
11.
Mezzanine
Loan.
(a) Lender
acknowledges and agrees that Borrower shall be entitled to borrow the proceeds
of the Mezzanine Loan in order to make the curtailment contemplated by Section
7(a) above. Except as otherwise provided in subsection (b) below, the principal
amount of the Mezzanine Loan shall not exceed $750,000.00 (except for protective
advances for legal costs or interest).
(b) In
the
event that Borrower elects to extend the Forbearance Period as contemplated
by
Section 6(b) above, the Mezzanine Loan may be increased by up to $500,000.00
in
order , i.e.,
to a
maximum principal amount of $1,250,000.00.
(c) Prior
to
consummating the Mezzanine Loan, Lender and the Mezzanine Lender shall enter
into an intercreditor agreement in form and substance satisfactory to
Lender
12.
Additional
Defaults.
Each of
the following shall constitute an Additional Default hereunder:
a. The
occurrence of an Event of Default (other than an Existing Default) under the
Loan Documents.
b. If
any
representation or warranty set forth herein was untrue in any material respect
when made.
c. Upon
the
breach by Borrower of any covenant contained herein which is not cured within
ten (10) days after written notice thereof is delivered to
Borrower.
d. If
Borrower has not repaid the Loan in full prior to the expiration of the
Forbearance Period in accordance with the terms hereof.
13.
Remedies.
Upon the
occurrence of an Additional Default, Lender shall be entitled immediately to
terminate this Agreement without notice to Borrowing Parties, whereupon Lender
shall be entitled to pursue all of its rights and remedies under the Loan
Documents, at law or in equity.
14.
Notices. Any
notice or other communication required or permitted to be given shall be in
writing addressed to the respective party as set forth below and may be
personally served or sent by overnight courier or U.S. Mail and shall be deemed
given: (a) if served in person, when served; (b) if by overnight courier,
on the first business day after delivery to the courier; or (c) if by U.S.
Mail,
certified or registered mail, return receipt requested on the fourth (4th)
day
after deposit in the mail postage prepaid:
|
If
to Lender:
|
Marathon
Structured Finance Fund L.P.
c/o
Marathon Asset Management, L.L.C.
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxx Xxxxxx, Esq.
|
|
and
to:
|
LaSalle
Bank National Association
000
X. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxx Xxxxxx, Assistant Vice President
|
|
With
a copy to:
|
Xxxxxxxx
Ingersoll & Rooney
One
Chase Xxxxxxxxx Xxxxx
00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxx X. Xxxxxxxx, Esq.
|
|
If
to Borrower:
|
South
Beach Resorts, LLC
c/o
Resorts Development Group LLC
0000
Xxxx Xxxx Xxxx
Xxxxxxx,
Xxxxxxx 00000
Attention:
Xxxxxxx X. Xxxxxx
|
|
With
a copy to:
|
Xxxxxxx
Xxxxxxxx Xxxxx Schlesigner & Kuh, LLP
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxxx Xxxxxxxx, Esq.
|
15.
CONSENT
TO JURISDICTION.
BORROWER
HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN
THE COUNTY OF NEW YORK, STATE OF NEW YORK AND IRREVOCABLY AGREES THAT, SUBJECT
TO LENDER’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE LOAN DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS. BORROWER
EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS
AND
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. BORROWER HEREBY WAIVES PERSONAL
SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF
PROCESS MAY
BE
MADE UPON BORROWER BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED,
ADDRESSED TO BORROWER, AT THE ADDRESS SET FORTH IN THIS AGREEMENT AND
SERVICE SO
MADE
SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED.
16.
WAIVER
OF JURY TRIAL.
BORROWING PARTIES WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION
OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS AGREEMENT
OR
THE LOAN DOCUMENTS, OR ANY ACTION OR PROCEEDING IN ANY WAY ARISING OUT OF OR
IN
CONNECTION WITH THIS AGREEMENT OR THE LOAN DOCUMENTS, WHETHER IN CONTRACT OR
TORT, AT LAW OR IN EQUITY, OR MIXED, AND AGREE THAT ANY SUCH ACTION SHALL BE
TRIED BEFORE A COURT AND NOT A BEFORE A JURY.
17.
APPLICABLE
LAW.
THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
18.
Severability.
The
invalidity, illegality or unenforceability of any provision of this Agreement
shall not affect or impair the validity, legality or enforceability of the
remainder of this
Agreement, and to this end, the provisions of this Agreement are declared to
be
severable.
19. Entire
Agreement.
This
Agreement and the Loan Documents are complete integrated documents, set forth
all of the terms, conditions and agreements between the parties hereto and
supersede any and all prior and contemporaneous terms, conditions and agreements
between the parties hereto. All exhibits and schedules attached hereto (if
any)
are incorporated herein and made a part hereof by this reference. There are
no
other agreements, promises, representations or warranties made or given in
connection with any of the foregoing or concerning the subject matter hereof
that are not contained herein or in the Loan Documents.
20.
Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective representatives, successors and assigns.
21.
Amendments
and Waivers.
The
delay by any party hereto to exercise promptly any right or remedy, to declare
any default or to take any other action permitted or required hereunder shall
not be construed as a waiver, course of dealing, or estoppel by or against
such
party. The provisions of this Agreement may be modified or amended only by
a
written agreement entered into by the parties hereto, and may be waived only
by
a written waiver signed by the party against whom such waiver is sought to
be
enforced. No waiver, modification or amendment shall extend to or affect any
obligation not expressly waived, modified or amended, or impair any right of
Lender related to such obligation. Except as expressly modified or amended
hereby the Loan Documents are hereby ratified and reaffirmed and shall remain
in
full force and effect.
22.
Survival.
Any and
all representations, warranties, covenants, promises and understandings of
any
kind or nature whatsoever contained herein or in the Loan Documents shall
survive the execution and delivery hereof until the Obligations are indefeasibly
repaid in full to Lender.
{SIGNATURE
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{SIGNATURE
PAGE 1 OF 1 TO FORBEARANCE AGREEMENT}
IN
WITNESS WHEREOF,
the
parties hereto have signed this Agreement the day and year first above
written.
WITNESS: BORROWER:
SOUTH
BEACH RESORTS, LLC, a Florida limited liability company
By:
SBR Holding Company, LLC, a Florida limited
liability company, its managing member
/s/
Xxxxx
Xxxxxxxx
By: /s/ Xxxxxxx X.
Xxxxxx
Name:
Xxxxxxx X.
Xxxxxx
Title:
Managing
Member
PRINCIPALS:
/s/
Xxxxx
Xxxxxxxx
/s/ Xxxxxxx X.
Xxxxxx
Xxxxxxx
Xxxxxx, individually
/s/
Xxxxx
Xxxxxxxx
/s/ Xxxx
Xxxxxx
Xxxx
Xxxxxx, individually
LENDER:
LASALLE
BANK, NATIONAL ASSOCIATION, as Trustee of Marathon Real Estate CDC 2006-1
Grantor Trust
By:____________________________
Name:__________________________
Title:___________________________
