FORBEARANCE AGREEMENT
THIS FORBEARANCE AGREEMENT (this "Agreement") is made as of June 2, 1997
by and between COURTYARDS OF XXXXXXX LIMITED PARTNERSHIP, an Illinois limited
partnership ("Borrower"), and AETNA LIFE INSURANCE COMPANY, a Connecticut
corporation ("Aetna").
BACKGROUND:
A. Aetna is the holder of a Renewal Mortgage Note from Borrower in the
original principal amount of $10,250,000.00 dated September 14, 1988 (the
"Original Renewal Note"). The Original Renewal Note was amended and restated
pursuant to the terms of a Renewal Promissory Note from Borrower in the
original principal amount of $9,603,527.59 dated May 29, 1992 (the "Second
Renewal Note").
B. The Original Renewal Note and the Second Renewal Note are secured by,
among other things, a (i) Mortgage and Security Agreement dated March 8, 1984
and recorded in Official Records Book 12085 at Page 2143 of the Public Records
of Dade County, Florida ("Official Records"), an Assignment of Rents and Leases
recorded in Official Records Book 12085 at Page 2173 and a Florida Mortgage and
Security Agreement dated September 14, 1988 and recorded in Official Records
Book 13826 at Page 760, all as consolidated, modified and renewed by a
Consolidation, Modification and Extension Agreement dated September 14, 1988
and recorded in Official Records Book 13826 at Page 797 (collectively, as
modified, the "Mortgage"), which Mortgage encumbers certain property described
therein (the "Property"), and (ii) an Assignment of Rents and Leases dated
September 14, 1988 and recorded in the Official Records Book 13826 at Page 845
(as modified, the "Assignment").
C. The Mortgage and the Assignment were each modified pursuant to the
terms of a Modification of Mortgage and Assignment of Rents and Leases dated
May 29, 1992 and recorded in the Official Records Book 15554 at Page 3118 (the
"1992 Modification").
D. The Original Renewal Note, the Second Renewal Note, the Mortgage, the
Assignment, the 1992 Modification and every other document or instrument
executed in connection with the indebtedness evidenced by the Original Renewal
Note and the Second Renewal Note are collectively referred to in this Agreement
as the "Loan Documents."
E. Borrower has notified Aetna that Borrower will not be in a position
to pay the Second Renewal Note in full upon the June 1, 1997 maturity of the
Second Renewal Note. Aetna understands that Borrower is pursuing a sale of the
Property, and Borrower has requested that Aetna agree to temporarily forbear
from the immediate enforcement of its rights and remedies as a result of
Borrower's failure to pay the Second Renewal Note in full upon maturity to
allow Borrower time to consummate said sale.
NOW, THEREFORE, in consideration of the terms of this Agreement, and for
other good and valuable consideration, the parties hereto hereby agree as
follows:
1. Payments. (a) By June 2, 1997, Borrower shall pay to Aetna (i)
$83,905.70, representing a pre-maturity installment of principal and interest
pursuant to the terms of the Second Renewal Note, plus (ii) $225,000.00,
representing payment of Contingent Interest, as defined in and due and owing
pursuant to the Second Renewal Note, plus (iii) $43,682.07, representing
interest on the outstanding principal balance of the Second Renewal Note
(assuming payment of the amount specified in subsection (i) above) calculated
for the period of June 1, 1997 through June 30, 1997 at the default rate of
interest specified in the Second Renewal Note, plus (iv) $1,250.00,
representing reimbursement of Aetna's costs and expenses incurred in connection
with this Agreement, including, without limitation, legal fees incurred by
Aetna through the date of this Agreement.
(b) Payment of the foregoing amounts shall be tendered to Aetna on
or before June 2, 1997 via wire transfer pursuant to the wire instructions
attached hereto as Exhibit A.
2. Indebtedness. Borrower acknowledges and agrees that as of May 28,
1997, the outstanding principal balance due and owing under the Loan Documents
is $8,751,040.33, together with (i) accrued but unpaid interest calculated as
the contract rate set forth in the Loan Documents, (ii) default interest as
reserved under the Loan Documents, (iii) late charges as reserved under the
Loan Documents, and (iv) unreimbursed costs of collection as reserved under the
Loan Documents, including, without limitation, attorneys' fees and expenses and
fees and expenses of other professionals retained by Aetna in connection with
the administration and collection of the indebtedness evidenced by the Loan
Documents.
3. Loan Documents. Borrower acknowledges and agrees that the Loan
Documents are the legal, valid and binding obligations of Borrower, and are
enforceable in accordance with their terms. Each of the Loan Documents are
hereby ratified and confirmed by Borrower and every provision, covenant,
condition, duty, obligation, right and power contained in and under each of the
Loan Documents shall continue in full force and effect, subject to the terms
and provisions of this Agreement. Borrower further acknowledges and agrees
that the indebtedness evidenced by the Loan Documents is due and owing by
Borrower without any defense, offset or counterclaim, all of which are hereby
specifically waived and released.
4. Forbearance Period. (a) Aetna agrees that from June 2, 1997 through
the earlier to occur of (i) the occurrence of a Default (as defined below), or
(ii) June 30, 1997 (the "Forbearance Period"), Aetna shall not commence any
litigation relating to the Loan Documents or otherwise exercise or pursue any
right or remedy pursuant to the Loan Documents, at law or in equity relating to
the subject matter of the Loan Documents, including, without limitation, the
exercise of any rights with respect to funds held as tax other escrows.
(b) Upon the occurrence of a Default or expiration of this Agreement by
its terms, this Agreement shall automatically terminate without the requirement
of notice to Borrower, and Aetna shall have the right upon one days notice to
Borrower to immediately pursue all available rights and remedies, including,
without limitation, the right to obtain and apply any funds held as tax or
other escrows.
(c) A "Default" shall be deemed to have occurred under this Agreement if
(i) Borrower fails to timely observe and perform any of its duties and
obligations under this Agreement, including, without limitation, its duties and
obligations under Section 1 of this Agreement, or (ii) and "event of default"
or "Event of Default" occurs under any of the Loan Documents (excluding
Borrower's obligation to pay the Loan in full upon the scheduled maturity of
the Loan Documents).
(d) Borrower acknowledges and agrees that (i) interest calculated at the
default rate set forth in the Loan Documents, late charges and Borrower's
obligation to reimburse Aetna for collection costs, including, without
limitation, attorneys' fees and expenses and fees and expenses of other
professionals retained by Aetna in connection with the administration and
collection of the indebtedness evidenced by the Loan Documents will begin to
accrue on June 2, 1997, and (ii) said default interest, late charges and
reimbursement obligations shall continue to accrue and, except as specifically
provided below, shall be payable after the termination or expiration of the
Forbearance Period.
(e) Aetna agrees that provided payment in immediately available funds of
the Payoff Amount (as defined below) is received by Aetna on or before the
scheduled expiration of the Forbearance Period, Aetna shall waive collection of
accrued late charges as reserved in the Loan Documents.
As used herein, "Payoff Amount" means an amount equal to the sum of (i)
the outstanding principal balance of the Loan Documents as of the date payment
in immediately available funds is received by Aetna, plus (ii) all other sums
reserved under and due and owing pursuant to the Loan Documents (other than
late charges), less (iii) a per diem credit of $1,456.07 (representing prepaid
per diem interest calculated at the default rate) for each day from the date
the Payoff Amount is tendered to June 30, 1997. Upon payment of the Payoff
Amount in compliance with the terms of this Agreement, Aetna shall cause all
funds held as tax or other escrows to be released to Borrower.
5. No Waiver of Rights and Remedies. Borrower acknowledges and agrees
that this Agreement, the execution hereof by Aetna and the acceptance of
payments by Aetna after the maturity date of the Loan Documents, is not
intended as and shall not be deemed to be a waiver of (i) Borrower's default
under the Loan Documents, (ii) any rights or remedies available to Aetna under
any of the Loan Documents, or (iii) any rights or remedies available to Aetna
at law or in equity with respect to the subject matter of the Loan Documents.
6. Miscellaneous. (a) This Agreement and the Loan Documents
constitute the entire agreement among the parties hereto with respect to the
transactions contemplated under this Agreement. Any modification of or
amendment to this Agreement or further modification to any Loan Document shall
be in writing and executed by each of the parties hereto.
(b) This Agreement may be executed in any number of counterparts, and
each such counterpart shall be deemed for all purposes to be an original, and
all such counterparts shall together constitute but one and the same agreement.
Borrower acknowledges and agrees that this Agreement shall not be deemed
effective unless and until it is executed by Aetna.
(c) Time is of the essence in this Agreement.
Remainder of Page Intentionally Blank
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal as of the date and year set forth above.
COURTYARDS OF XXXXXXX LIMITED PARTNERSHIP,
an Illinois limited partnership
By: Balcor Partners-XV, an Illinois general
partnership and the general partner of
Courtyards of Xxxxxxx Limited Partnership
By: RGF-Balcor Associates-II, an Illinois
general partnership and a general partner of
Balcor Partners-XV
By: The Balcor Company, a Delaware
corporation and a general partner of
RGF-Balcor Associates-II
By: /s/ Xxxxx Xxxxxxxx
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Its: Authorized Representative
AETNA LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
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Its: Managing Director
STATE OF Illinois
COUNTY OF Lake
This 3 day of June 1997, personally came before me Xxxxx Xxxxxxxx, as
Auth. Rep of The Balcor Company, a Delaware corporation in its capacity as
general partner of RGF-Balcor Associates II, in its capacity as general partner
of Balcor Partners-XV, in its capacity as general partner of Courtyards of
Xxxxxxx Limited Partnership, an Illinois limited partnership, who being duly
sworn, says that the foregoing instrument was signed and sealed by him/her on
behalf of said limited partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this 3
day of June, 1997.
/s/ Xxxxx X. Xxxxxxx
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Notary Public
My Commission Expires 7/01/00
STATE OF CONNECTICUT
COUNTY OF HARTFORD
This 4th day of June, 1997, personally came before me Xxxxxxx X. Xxxxxxx
as Managing Director of Aetna Life Insurance Company, a Connecticut
corporation, who being duly sworn, says that the foregoing instrument was
signed and sealed by him on behalf of said corporation as said Managing
Director of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this 4th
day of June, 1997.
/s/ Xxxxxx X. Xxxxxxxx
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Notary Public
My Commission Expires:
XXXXXX X. XXXXXXXX
NOTARY PUBLIC WITHIN AND FOR
THE STATE OF CONNECTICUT
MY COMM. EXPIRES FEBRUARY 28, 2002
