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EXHIBIT 10.20
FORBEARANCE AGREEMENT
THIS AGREEMENT, entered into this 3rd day of April, 2001 by and between
THE CONFEDERATED TRIBES OF THE GRAND RONDE COMMUNITY OF OREGON (hereinafter
"CTGR") and MHL DEVELOPMENT COMPANY, an Oregon corporation, and XXXXXXX X. XXXX
AND XXXXXXXX X. XXXX, collectively (hereinafter "Obligors").
RECITALS
A. Obligors borrowed Two Million Five Hundred Thousand and 00/100
Dollars ($2,500,000.00) from CTGR on or about April 17, 2000, as evidenced by a
Promissory Note executed by Obligors and dated April 17, 2000. Repayment of the
Promissory Note is secured by, among other things; a certain Trust Deed and
Assignment of Rents dated April 17, 2000 and recorded April 18, 2000 in
Multnomah County, Oregon, under Multnomah County Auditor's Recording Fee No.
2000-053229; and a Security and Pledge Agreement and Commercial Guaranty dated
April 17, 2000.
B. The above-referenced Promissory Note calls for payment of the entire
principal amount of the Note, $2,500,000.00 on or before April 17, 2001,
together with all accrued interest, to be paid in full.
In consideration of the foregoing and the covenants set forth below, the
parties agree as follows:
AGREEMENT
1. INCORPORATION OF RECITALS. All the foregoing recitals are hereby
incorporated into this Agreement as if fully set forth herein.
2. FORBEARANCE BY CTGR. Subject to the conditions set forth in this
Agreement and subject to termination as provided in Paragraph 4 below, CTGR
agrees to forebear from taking any action to foreclose on the Trust Deed and
Assignment of Rents, to bring any action to collect on the Note or to take any
other action to realize on any security for the subject Promissory Note, Trust
Deed and Assignment of Rents, and Security and Pledge Agreement and Commercial
Guaranty, and any other security named or not named herein, or to otherwise
effect remedies permitted under Oregon law.
3. CONDITIONS OF FORBEARANCE. Each of the following shall be a condition
to the obligation of CTGR to forebear in accordance with paragraph 2 above.
a. Obligors shall pay to Strategic Wealth Management, Inc., on
or before April 17, 2001 the sum of Two Hundred Fifty and 00/100 Dollars
($250.00), for preparation and implementation of this forbearance agreement.
Forbearance Agreement
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b. On or before April 17, 2001 Obligors shall pay to CTGR the
sum of Seventy Six Thousand Forty One and 67/100 Dollars ($76,041.67), which sum
shall be applied to the quarterly interest payment due on April 17, 2001.
c. On April 17, 2001, Obligors agree to pay CTGR the sum of
Fifty Thousand and 00/100 Dollars ($50,000.00), for the forbearance fee.
d. Obligors shall continue to pay the quarterly interest as it
accrues under the Note, with the next quarterly interest payment due July 17,
2001, and thereafter on October 17, 2001, January 17, 2002 and April 17, 2002.
Obligors shall not in any other respect be in default under the Note or Trust
Deed and Assignment of Rents, including payment of real property taxes, and
assessments on the real property securing the debt.
e. Obligors will permit no lien or other encumbrance, whether
voluntary or involuntary, to arise or affect the title of the property. Obligors
shall make no lease or other arrangement for the use or enjoyment of the
property that is subject of the Trust Deed and Assignment of Rents and Security
and Pledge Agreement and Commercial Guaranty other than those approved by CTGR
in writing.
f. No bankruptcy proceeding or other federal or state proceeding
is commenced by Obligors.
g. There is no breach by Obligors of this Agreement.
If any one or more of the foregoing conditions fails to occur at any
time, CTGR may, without notice to Obligors, proceed with all remedies at law or
equity and shall have no further obligation pursuant to paragraph 2 above.
4. TERMINATION OF FORBEARANCE. The obligations of CTGR pursuant to
paragraph 2 of this Agreement shall terminate on April 17, 2002 or breach of any
of the conditions described in Paragraph 3. Termination shall not release or
relieve Obligors from any obligations to CTGR arising prior to termination,
including without limitation, any and all loss, damage, costs or expense to
CTGR, under the Note, Trust Deed and Assignment of Rents and Security and Pledge
Agreement and Commercial Guaranty.
5. DEFAULT BY OBLIGORS. The breach of any obligation of Obligors under
this Agreement shall also be a breach of the subject Promissory Note, Trust Deed
and Assignment of Rents, and Security and Pledge Agreement and Commercial
Guaranty. In the event of a default by Obligors under this Agreement or the
failure of any of the conditions set forth above, in addition to the remedies
under this Agreement, CTGR shall have all remedies provided in the Note and the
Trust Deed and Assignment of Rents and Security and Pledge Agreement and
Commercial Guaranty as well as any other remedies provided at law or in equity.
6. NO NOVATION OR RELEASE. This Agreement is not intended to be nor
shall it be deemed to be construed to be a reinstatement, novation or release of
the subject Promissory
Forbearance Agreement
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Note or Trust Deed and Assignment of Rents or other security interest. This
Agreement is not intended to be nor shall it be deemed or construed to be a
modification, amendment or waiver of the loan or the loan documents, or any of
them. Neither this Agreement nor any payments or other actions taken pursuant to
this Agreement shall be deemed to cure the existing defaults under the Note or
Trust Deed and Assignment of Rents nor the maturity date of the Note or Trust
Deed and Assignment of Rents it being the intention of the parties hereto that
the Promissory Note and Trust Deed and Assignment of Rents shall remain in
default and immediately due and payable in full notwithstanding this Agreement
and, except as otherwise expressly provided, CTGR reserves all of its rights and
remedies in connection with such defaults under the loan documents at law and in
equity.
Notwithstanding the foregoing, CTGR agrees that during the one-year
period of this Agreement and so long as there is no breach or default of the
terms of this Agreement, the default interest rate set forth in paragraph 5 of
the Promissory Note shall not be charged to Obligors; it being the intent of the
parties that the interest rate for this one-year forbearance period be twelve
percent (12%) per annum, up to and through April 17, 2002. Nothing herein is to
be construed or intended by the parties to be a waiver of the default interest
rate should Obligors fail to make the principal payment due on April 17, 2002,
upon termination of the Agreement, or otherwise breach this Agreement.
7. BANKRUPTCY. Each of the Obligors hereby covenants and agrees that in
the event the property of any portion thereof securing the subject Promissory
Note becomes property of any bankruptcy estate or the subject of any state,
local, federal or other bankruptcy dissolution liquidation or receivership
proceeding, then CTGR shall immediately become entitled, in addition to other
relief to which CTGR may be entitled under this Agreement, to an order from the
Bankruptcy court granting immediate relief from automatic stay pursuant to
Section 362 of the Bankruptcy Code so as to permit CTGR to foreclose upon the
property and exercise all other rights and remedies under the Note, Trust Deed
and Assignment of Rents and Security and Pledge Agreement and Commercial
Guaranty and any other security named or not named herein.
Forbearance Agreement
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8. CONFIRMATION OF INDEBTEDNESS.
The subject Promissory Note, Trust Deed and Assignment of Rents, and
Security and Pledge Agreement and Commercial Guaranty, and any other security
named or not named herein, to CTGR are hereby confirmed by Obligors as being in
full force and effect. Obligors acknowledge that they are liable under the Note,
Trust Deed and Assignment of Rents, and Security and Pledge Agreement and
Commercial Guaranty, and any other security named or not named herein, in
accordance with the terms and conditions of such instruments. As of the date of
this Agreement, Obligors are not aware of any defense or offsets to their
obligations under the Note, Trust Deed and Assignment of Rents, and Security and
Pledge Agreement and Commercial Guaranty, and any other security named or not
named herein. Obligors, as a material inducement to cause CTGR to enter into
this Agreement, hereby waive any and all defenses they may now have relating to
the Note, Trust Deed and Assignment of Rents and Security and Pledge Agreement
and Commercial Guaranty, and any other security named or not named herein, past
or present, known or unknown, liquidated or unliquidated. The foregoing waiver
shall survive termination of this Agreement.
9. MISCELLANEOUS.
a. Obligors acknowledge that they have had the opportunity to
seek legal counsel of their own choosing before executing this Agreement and
that they fully understand that this Agreement and all its provisions, including
without limitation, the waiver set forth in this Agreement, are freely and
voluntarily executed and intend to be bound thereby.
b. Any notice that the parties require or may desire to give
to the other shall be in writing and may be sent by personal delivery, by
prepaid U.S. Mail, or by overnight courier, addressed as follows.
If to CTGR: c/o Xxxxxxx X. Xxxxxxxx, President
STRATEGIC WEALTH MANAGEMENT, INC.
0000 XX 00xx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxxxx, XX 00000
If to Obligors: c/o Xxxxxxx Xxxx
mHL Development Company
00000 XX 00xx Xxx.
Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxx
Xxxxxxxx X. Xxxx
00000 XX Xxxxxxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
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10. Modifications. This Agreement may be modified or amended only by an
agreement in writing signed by both parties. This Agreement shall be governed by
Oregon Law.
11. Attorneys' Fees. If any party hereto shall bring any action or suit
against another for relief, declaratory or otherwise arising out of this
Agreement, the prevailing party shall have and recover against the defaulting
party in addition to court costs and disbursement such sums as the court may
adjudge to be reasonable attorneys' fees.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO
LOAN MONEY, TO EXTEND CREDIT, OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT
ARE NOT ENFORCEABLE UNDER OREGON LAW.
MHL DEVELOPMENT COMPANY, an Oregon
corporation
DATED: April 9, 2001 By: /S/ XXXXXXX X. XXXX
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Xxxxxxx X. Xxxx
Its: President/CEO
DATED: April 9, 2001 By: /S/ XXXXXXX X. XXXX
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Xxxxxxx X. Xxxx
DATED: April 9, 2001 By: /S/ XXXXXXXX X. XXXX
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Xxxxxxxx X. Xxxx
THE CONFEDERATED TRIBES OF THE GRAND
RONDE COMMUNITY OF OREGON
DATED: By:
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Xxxxx Xxxxxx
Its: Finance Officer
Forbearance Agreement
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