FORBEARANCE AGREEMENT
Exhibit
99.1
EXECUTION
VERSION
This Forbearance Agreement (this "Agreement") is made
and entered into as of the 9th day of December, 2010 (the "Effective Date"), by
and between BA Note Acquisition LLC, a Delaware limited liability company
("Lender"), and
DAL Group, LLC, a Delaware limited liability company ("Borrower").
PRELIMINARY
STATEMENT
A. On
or about March 18, 2010, Bank of America, N.A. ("Original Lender"),
made a loan ("Loan") to Borrower in
the original principal amount of $15,000,000, as evidenced by that certain Loan
Agreement (the "Loan
Agreement") and Promissory Note, each dated as of March 18, 2010 (the
"Promissory
Note"; together with the Loan Agreement and all loan documents executed,
delivered and relating to the Loan are referred to collectively as the "Loan
Documents").
B. All
of Original Lender's right, title and interest in and to the Loan has been
transferred, sold and assigned to Lender.
C. An
Event of Default has occurred and is continuing under the Loan Documents due to
the failure of Borrower to pay the Loan in full under the terms of the Loan
Documents (the "Acknowledged
Defaults").
D. Borrower
has requested Lender to forbear from exercising its rights and remedies under
the Loan Documents as result of the Acknowledged Defaults.
E. Lender
has agreed to forbear from exercising certain of its rights and remedies under
the Loan Documents on and subject to the terms and conditions set forth in this
Agreement.
In consideration of $10.00 paid by each
of the Parties (as hereinafter defined) to the other, the mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the Parties agree as
follows:
ARTICLE
1
DEFINITIONS
The terms
set forth below have the meaning ascribed to them for purposes of this
Agreement. Other capitalized terms contained in this Agreement shall
have the meanings assigned to them herein. Any capitalized terms
utilized in this Agreement and not defined in this Agreement shall have the
meanings set forth in the Loan Documents.
1.1 "Acknowledged Defaults" has the
meaning set forth in the preamble to this Agreement.
1
1.2 "Collateral" means any and all
real and personal property described in any of the Loan Documents as security
for Borrower's obligations under the Loan.
1.3 "Debtor Proceeding" means any
proceeding for relief, protection, reorganization, liquidation, dissolution or
similar relief for debtors under any local, state, federal or other insolvency
law or laws providing relief for debtors.
1.4 “Designated Directors” means
Xxxxx Xxxxxxx, Xxxxxxx X. Xxxxxxxxx, Xxxxx Xxxxxx and Xxxxxxxx
Xxxxx.
1.5 "Excess Cash" means all cash
held by Borrower and its subsidiary, DJS Processing, LLC ("DJS"), collectively,
in their respective operating accounts as of Friday of each week, (a) for the
first thirty (30) days after the Effective Date, in excess of $2,000,000, (b)
for the next thirty (30) days thereafter, in excess of $1,700,000, and (c) for
the next thirty (30) days thereafter, in excess of $1,500,000.
1.6 "Indebtedness" means the
amounts described in Section 2.2(b), plus all other amounts which may
subsequently be due from Borrower to Lender under the Loan Documents, this
Agreement, and at law or in equity, including advances made by Lender, together
with any interest thereon.
1.7 "Party" means any, and "Parties" means all, of the
signatories to this Agreement.
ARTICLE
2
ACKNOWLEDGMENTS, WARRANTIES
AND REPRESENTATIONS
Borrower acknowledges, warrants,
represents and agrees as follows as of the Execution Date:
2.1 Authority
of Borrower. Borrower is a duly organized and validly existing
limited liability company in good standing under
the laws of the State of Delaware and is qualified to transact business in the
State of Florida. Xxxxxxx X. Xxxxxxxxx ("Borrower Signatory")
is the President of Borrower. Borrower Signatory, acting alone
without the joinder of any other members or managers of Borrower or any other
party, has the power and authority to execute and deliver this Agreement and any
and all documents executed in connection herewith (collectively referred to
herein as the "Forbearance
Documents") on behalf of and to duly bind Borrower under this Agreement
and the Forbearance Documents. The execution and delivery of, and
performance under, this Agreement and the Forbearance Documents by Borrower has
been duly and properly authorized pursuant to all requisite company action of
Borrower and does not and will not (x) violate any provision of any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
presently in effect having applicability to Borrower or Borrower's certificate
of formation or articles of organization, limited liability company or operating
agreement or any other organizational document of Borrower or (y) result in a
breach of or constitute or cause a default under any indenture, agreement, lease
or instrument to which Borrower is a party or by which the Collateral may be
bound or affected.
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2.2 Status of
Loan.
(a) Loan
Documents. The Loan Documents constitute valid and legally
binding obligations of Borrower and are enforceable against Borrower in
accordance with their terms. There are no modifications, verbal or
written, to the Loan Documents. Borrower, by its execution of this
Agreement, waives and releases all defenses, setoffs, claims, counterclaims or
causes of action of any kind or nature whatsoever against Lender and all of its
past, present and future officers, directors, employees, agents, servicers,
attorneys, representatives, participants, heirs, successors and assigns
(collectively, "Lender
Parties") with respect to (i) the Loan, (ii) the Loan Documents, and
(iii) the Indebtedness.
(b) Indebtedness. As
of December 8, 2010, the Indebtedness consisted of (i) the outstanding principal
balance (the "Principal Balance")
of the Loan in the amount of $6,430,000, and (ii) accrued and unpaid interest at
the rate of interest set forth in and in accordance with the terms of the Note
in the amount of $ 10,264.26, which accrued interest is hereby waived by Lender
as of the Effective Date; provided, however, interest on the Principal Balance
shall continue to accrue as provided in Section 2.5 of the Loan
Agreement. Notwithstanding the immediately preceding sentence, as of
the Effective Date (a) the principal outstanding under the Loan shall be reduced
by $30,000, and (b) the interest accruing and due on the Note from and after the
Effective Date shall be waived by Lender if payment in full is made by the
Forbearance Expiration Date (as defined below). Borrower hereby
acknowledges and agrees that no additional advances or other funding will be
available under the Loan Agreement or other Loan Documents.
(c) No Novation or
Release. Except as otherwise expressly stated in any of this
Agreement, neither this Agreement, nor any payments made or other actions taken
pursuant to this Agreement, is intended to cure, and shall not be deemed or
construed to cure the existing defaults under the Loan Documents, or to
constitute a novation, or release of the Loan or the Loan Documents or to
constitute a modification, amendment, or waiver of the Loan or the Loan
Documents. Except as otherwise expressly stated in this Agreement, it
is the intention of the Parties that the Loan remains in default and remains
immediately due and payable in full, notwithstanding this
Agreement. Except as otherwise expressly provided in this Agreement,
Lender reserves all of its rights and remedies in connection with such
defaults.
2.3 No
Bankruptcy Intent. None of Borrower or Guarantors
(collectively, "Borrower Parties")
presently intend to (a) file a voluntary petition with any bankruptcy court of
competent jurisdiction or be the subject of any petition under Title 11 of the
U.S. Code, as amended (the "Bankruptcy Code");
(b) be the subject of any order for relief issued under the Bankruptcy Code; (c)
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; (d) have sought or consented to or
acquiesced in the appointment of any trustee, receiver, conservator, liquidator
or assignee for the benefit of creditors; or (e) be the subject of any order,
judgment, or decree entered by any court of competent jurisdiction approving a
petition filed against such party in connection with any Debtor
Proceeding.
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2.4 Continuity
of Representations. The representations and warranties
contained in this Agreement are true and correct in all material respects as of
the Effective Date and will survive the execution and delivery of and
consummation of all transactions under this Agreement.
ARTICLE
3
COVENANTS OF
BORROWER
3.1 Compliance
with Loan Documents. To the extent not inconsistent with the
terms of this Agreement, Borrower agrees to comply with and be bound by all the
terms, covenants, agreements, conditions and provisions set forth in the Loan
Documents. During the term of this Agreement, Lender shall forebear
from declaring or enforcing a default based on the breach or violation of the
following provisions of the Loan Agreement: Sections 8.2 (Financial
Information), 8.3 (Fixed Charged Coverage Ratio), 8.7 (Bank as Principal
Depository), 8.14 (Change of Management) 8.16(e) (Additional Negative
Covenants), 10.2 (Other Bank Agreements), 10.3 (Cross-Default), 10.8 (Existing
Agreements), 10.10 (Borrowing Base), 10.13 (Default Under Related Documents),
and 10.15 (Other Breach Under Agreement). The Borrower shall only be
required to provide the notices set forth in Section 8.17 (Notice to Bank) of
the Loan Agreement related to any action or event arising on or after the
Effective Date. The Lender shall forebear from declaring or enforcing
a default based on the breach or violation of Section 8.19 (Compliance with
Laws), Section 10.1 (Failure to Pay) and Section 10.12 (Governmental Action) of
the Loan Agreement arising prior to the Effective Date.
3.2 Notice of
Proceedings. Borrower shall notify Lender in writing, promptly
after acquiring knowledge, either directly or through any agent, of the
institution of any suit, administrative proceeding, adversary proceeding or
other legal proceedings which may materially affect its operations, financial
condition, or business or the transactions contemplated by this
Agreement.
3.3 Release
and Covenant Not To Xxx. In consideration of Lender's
agreement to the terms of this Agreement, Borrower and Guarantor, by execution
of the Joinder and Agreement of Guarantor attached hereto (the "Joinder"), on behalf
of themselves and each of their respective successors and assigns, remise,
release, acquit, satisfy and forever discharge Lender Parties, from any and all
manner of debts, accountings, bonds, warranties, representations, covenants,
promises, contracts, controversies, agreements, liabilities, obligations,
expenses, damages, judgments, executions, actions, claims, demands and causes of
action of any nature whatsoever, at law or in equity, known or unknown, either
now accrued or subsequently maturing, which any of them now has, from the
beginning of the world to and including the Effective Date, or shall or may have
by reason of any matter, cause or things arising out of or relating to (a) the
Loan, (b) the Loan Documents, (c) the Indebtedness, and (d) other agreement or
transaction between Borrower and/or Guarantor and any of Lender Parties relating
to the Loan. Borrower and Guarantor, by execution of the Joinder, on
behalf of themselves and each of their respective successors and assigns,
covenant and agree never to institute or cause to be instituted or continue
prosecution of any suit or other form of action or proceeding of any kind or
nature whatsoever against any of Lender Parties by reason of or in connection
with any of the foregoing matters, claims or causes of action. For
the avoidance of doubt, the release and covenant not to xxx set forth in this
Section 3.3 shall not release, waive or impair any rights, liabilities, actions,
claims, demands or causes of action, if any, of the Borrower or Guarantor
against any Lender Party not related to or not arising from (a) the Loan, (b)
the Loan Documents or (c) the Indebtedness.
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3.4 Bankruptcy. In
the event that Borrower or Guarantor shall take any action constituting a Debtor
Proceeding, Borrower irrevocably consents to an order from the bankruptcy court
prohibiting Borrower's use of all "cash collateral" (as defined in section 363
of the Bankruptcy Code). In the event that (a) Borrower or Guarantor take any
action constituting a Debtor Proceeding, and (b) the
Designated Directors at anytime cease to be or no longer comprise a majority of
the voting members of the Borrower’s board of directors, Borrower
irrevocably consents to relief from any automatic stay imposed by Section 362 of
Bankruptcy Code, or otherwise, on or against the exercise of the rights and
remedies otherwise available to Lender as provided in this Agreement with
respect to the Collateral and as otherwise provided by law, and Borrower hereby
irrevocably waives any right to object to such relief. The provisions
of this section shall survive the termination of this Agreement.
3.5 Payment
of Transaction Costs and Expenses. Borrower shall pay all
reasonable costs incurred in connection with the preparation, negotiation,
execution and recording of this Agreement and related transactions, including,
without limitation (the "Transaction
Expenses"): (a) the reasonable legal fees and disbursements of Lender's
general counsel, Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx LLP, and Lender's
local counsel, if applicable (all such fees and disbursements not to exceed
$20,000 (the "Cap")); (b) the costs
of obtaining and delivering to Lender tax, UCC records, judgment and bankruptcy
searches (the "Searches"), each
satisfactory to Lender; and (c) certificates of good standing issued by the
applicable Secretary of State for all Borrower Parties (the "Certificates of Good
Standing"). The Transaction Expenses shall be paid by Borrower
simultaneously with the execution of this Agreement. Borrower
acknowledges and agrees that (1) Lender shall not apply any of the Transaction
Expenses at any time to reduce the Loan Indebtedness and (2) the Cap shall not
apply to any legal fees and disbursements related to (x) the Lender's
enforcement or preservation of any rights or remedies under this Agreement or
any Loan Document and (y) any amendment, waiver, workout or restructuring of
this Agreement or any Loan Document.
3.6 Further
Assurances. Borrower shall thereafter execute and deliver to
Lender such agreements, instruments, documents, financing statements and other
writings as may be reasonably requested from time to time by Lender to perfect
and to maintain the perfection of Lender's security interest in and to the
Collateral and to consummate the transactions contemplated by or in the Loan
Documents and this Agreement.
3.7 Control
Account Agreements. Within seven (7)
days after the Effective Date of this Agreement, the Borrower shall enter into
control account agreements in form and substance satisfactory to Lender in its
sole discretion, with a financial institution acceptable to Lender, in its sole
discretion, that grant control to Lender over all of Borrower's and DJS'
operating accounts in connection with an Event of Default pursuant to Section
10.1 (Failure to Pay), Section 10.4 (False Information), Section 10.6
(Receivers) or Section 10.9 (Judgments) of the Loan Agreement.
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ARTICLE
4
FORBEARANCE
4.1 Forbearance
Covenant. Borrower acknowledges and agrees that Lender shall
have the free and unrestricted right, at any time and from time, subject to the
provisions of this Agreement, to exercise any and all rights available to Lender
under this Agreement and the Loan Documents, in equity or at law, in connection
with any existing defaults, including, without limitation, the Acknowledged
Defaults, and/or or any default or Event of Default, whether of the type or
nature of the Acknowledged Defaults or otherwise. However, subject to
the terms of this Agreement and provided no Termination Event occurs, Lender
agrees to take no action to enforce payment of the Indebtedness up to and
including the ninetieth (90th) day
after the Effective Date of this Agreement (the "Forbearance Expiration
Date"). The forbearance by Lender, subject to the terms and
conditions of this Agreement, is referred to as the "Forbearance
Covenant". Borrower agrees that the Forbearance Covenant does
not relate or extend to any actions that Lender may take under the Loan
Documents or this Agreement, in equity or at law, solely to preserve and protect
the Collateral or the interests of Lender in the Collateral (excluding, however,
any action to collect or realize upon the Collateral), including, without
limitation, (a) the filing of actions, or the defending of or intervention in
actions (such as foreclosure proceedings) brought by third parties or by
Borrower relating to the Collateral or the interests of Lender therein or (b)
the sending of notices to any persons or entities concerning the existence of
security interests or liens in favor of Lender relating to the
Collateral.
4.2 Excess
Cash Payments.
(a) In
consideration of the Forbearance Covenant and the other agreements and covenants
of Lender in this Agreement, Borrower agrees to pay to Lender, by immediately
available wired funds, by not later than 2:00 p.m. Eastern time on Friday,
December 10, 2010 and continuing on each Friday thereafter until the Forbearance
Expiration Date, all Excess Cash (the "Excess Cash
Payments").
(b) Simultaneously with
Borrower’s remittance of each Excess Cash Payment, Borrower shall submit to
Lender for the preceding week, such financial data, statements, reports and
related documentation with respect to Collateral as reasonably requested by
Lender.
4.3 Nature
and Effect of Forbearance Payments. The Excess Cash Payments
actually received by Lender shall be applied by Lender against the Indebtedness
in such manner and at such time as Lender may in its sole discretion deem
appropriate, except as otherwise set forth herein. Borrower
acknowledges and agrees, however, that the Forbearance Payments received by
Lender shall be accepted by Lender to be applied in accordance herewith, which
Indebtedness is and shall at all times remain due and payable until paid and
satisfied in full. Lender's receipt and/or application of the Excess
Cash Payments against the Indebtedness (a) shall not be deemed to reinstate the
Loan nor cure the Acknowledged Defaults or any existing or future defaults or
Events of Default and (b) shall not constitute a waiver of any of the rights and
remedies of Lender under the Loan Documents, this Agreement, in equity or at law
with respect to any existing default, Event of Default or any future default or
Event of Default.
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4.4 Payment
of Indebtedness. Borrower acknowledges and agrees that payment
of the Indebtedness in full must be made on or prior to the Forbearance
Expiration Date.
4.5 Guarantor. As
a condition precedent to Lender’s execution of this Agreement, Guarantor shall
execute and deliver to Lender the Joinder in the form attached
hereto.
4.6 UCC
Financing Statements. Borrower hereby grants, re-grants, and
confirms unto Lender a first lien priority interest in all Collateral to the
maximum extent permitted by the Uniform Commercial Code, as amended subsequent
to the making of the Loan. Borrower hereby further consents to the
filing from time to time of any financing statements or other Uniform Commercial
Code forms required, or deemed appropriate by Lender, to be filed in the
applicable states or any other filing office (collectively "Filings") in order
to, inter alia, preserve,
protect and perfect said interest and, notwithstanding anything contained in any
of the Loan Documents to the contrary, said Filings may be made by Lender
without the consent or signature of Borrower.
ARTICLE
5
TERMINATION EVENTS;
REMEDIES
5.1 Termination
Events. For purposes of this Agreement, each of the following
shall constitute a Termination Event (each, a "Termination
Event"):
(a) Payments. If
Borrower shall fail to pay any payment provided for in this Agreement,
including, without limitation, any Excess Cash Payments, when the same shall
become due and payable and after the expiration of any applicable grace or cure
period.
(b) Misrepresentations. If
any representation or warranty of Borrower in this Agreement shall be untrue or
inaccurate in any material respect when made.
(c) Breach of Other
Covenants. Except for the Acknowledged Defaults, an Event of
Default exists or hereafter arises or Borrower otherwise fails to fully and
timely perform any of its covenants, agreements and obligations under this
Agreement.
(d) Bankruptcy or Insolvency
Action.
(i) If
Borrower shall file any Debtor Proceeding; or
(ii) If
any involuntary petition under any chapter of the Bankruptcy Code shall be filed
against Borrower, or Borrower shall become the subject of any Debtor Proceeding;
or
(iii) The
Collateral or any portion thereof or interest therein, shall become the property
of any bankruptcy estate or the subject of any Debtor Proceeding;
or
(iv) If
Borrower should fail to pay within ten (10) days of demand from Lender or its
affiliate any costs (including reasonable attorneys' fees) incurred by Lender in
connection with any Debtor Proceeding.
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(e) Legal
Action. If Borrower shall, directly or indirectly, file or
institute, or cause to be filed or instituted or cooperate in the filing or
institution against any of Lender Parties, any lawsuit, complaint,
administrative claim, adversary proceeding, or other legal action relating,
directly or indirectly, to the Collateral or the Loan.
5.2 Lender's
Rights upon Occurrence of Termination Event or Event of
Default. Upon the occurrence of a Termination Event, Lender's
obligations under this Agreement, including, without limitation, the Forbearance
Covenant, shall immediately and without further notice to Borrower, terminate
and be of no further force and effect and Lender shall immediately be entitled,
without further notice to Borrower to exercise any or all of Lender's rights and
remedies under the Loan Documents, in equity and at law (all of such rights and
remedies being cumulative), including, but not limited to, demanding immediate
payment of the entire Indebtedness, to the same extent as Lender would be
entitled if the Forbearance Covenant had never been part of this
Agreement. The covenants and agreements of Borrower contained in this
Section shall be referred to as the "Cooperation
Covenants".
ARTICLE
6
MISCELLANEOUS
6.1 Survival
of Provisions. The covenants, acknowledgements,
representations, agreements and obligations contained in this Agreement shall
survive the consummation of the transactions contemplated by this
Agreement.
6.2 No
Limitation of Remedies. No right, power or remedy conferred
upon or reserved to or by Lender in this Agreement is intended to be exclusive
of any other right, power or remedy conferred upon or served to or by Lender
under this Agreement, the Loan Documents or at law. Each and every
remedy shall be cumulative and concurrent, and shall be in addition to each and
every other right, power and remedy given under Agreement, the Loan Documents or
now or subsequently existing in equity or at law.
6.3 No
Waivers. Except as otherwise expressly set forth in this
Agreement, nothing contained in this Agreement shall constitute a waiver of any
rights or remedies of Lender under the Loan Documents, in equity or at
law. No delay or failure on the part of Lender in the exercise of any
right or remedy under this Agreement shall operate as a waiver, and no single or
partial exercise of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy. No action or
forbearance by Lender contrary to the provisions of this Agreement shall be
construed to constitute a waiver of any of the express provisions.
6.4 Successors
or Assigns. Whenever any Party is named or referred to in this
Agreement, the heirs, executors, legal representatives, successors,
successors-in-title and assigns of such Party shall be included. All
covenants and agreements in this Agreement shall bind and inure to the benefit
of the heirs, executors, legal representatives, successors, successors-in-title
and assigns of the Parties, whether so expressed or not.
6.5 Construction
of Agreement. Each Party acknowledges that it has participated
in the negotiation of this Agreement. No provision of this Agreement
shall be construed against or interpreted to the disadvantage of any Party by
any court or other governmental or judicial authority by reason of such Party
having or being deemed to have structured, dictated or drafted such
provision. Borrower at all times has had access to an attorney in the
negotiation of the terms of and in the preparation and execution of this
Agreement. Borrower has had the opportunity to review and analyze
this Agreement for a sufficient period of time prior to execution and
delivery. No representations or warranties have been made by or on
behalf of Lender, or relied upon by Borrower, pertaining to the subject matter
of this Agreement. All prior statements, representations and
warranties, if any, are totally superseded and merged into this Agreement, which
represents the final and sole agreement of the Parties with respect to the
subject matters of this Agreement. All of the terms of this Agreement
were negotiated at arm's length, and this Agreement was prepared and executed
without fraud, duress, undue influence or coercion of any kind exerted by any of
the Parties upon the others. The execution and delivery of this
Agreement is the free and voluntary act of Borrower.
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6.6 Invalid
Provision to Affect No Others. If, from any circumstances
whatsoever, fulfillment of any provision of this Agreement or any transaction
related thereto at the time performance of such provision shall be due, shall
involve transcending the limit of validity presently prescribed by any
applicable usury statute or any other applicable law, with regard to obligations
of like character and amount, then ipso facto, the obligation
to be fulfilled shall be reduced to the limit of such validity. If
any clause or provision operates or would prospectively operate to invalidate
this Agreement, in whole or in part, then such clause or provision only shall be
deemed deleted, as though not contained, and the remainder of this Agreement
shall remain operative and in full force and effect.
6.7 Usury. This
Agreement and all other agreements made by Borrower relating directly or
indirectly to the Indebtedness are expressly limited so that in no event or
contingency whatsoever shall the amount of interest received, charged or
contracted for by Lender exceed the highest lawful amount of interest
permissible under the laws of Florida. If, under any circumstances
whatsoever, performance of any provision of the Note, the other Loan Documents
or this Agreement, at the time performance of such provision shall be due, shall
result in the highest lawful rate of interest permissible under the laws of
Florida being exceeded, then ipso facto, the amount of
interest received, charged or contracted for by Lender shall be reduced to the
highest lawful amount of interest permissible under the laws of Florida, and if
for any reason whatsoever, Lender shall ever receive, charge or contract for, as
interest, an amount which would be deemed unlawful, such amount of interest
deemed unlawful shall be applied to principal (whether or not due and payable)
or refunded to Borrower (if all principal has been paid) and not to the payment
of interest.
6.8 Indemnity. Borrower
agrees to indemnify and hold harmless Lender from any liabilities, costs,
expenses (including attorneys' and paralegal fees at all tribunal levels) or
claims of Florida or any other governmental agency for documentary stamps,
intangible, mortgages or other similar taxes and any interest or penalties
thereon which may be or become due in connection with (a) the execution,
delivery or recording of this Agreement or (b) the transactions contemplated by
this Agreement. This section shall survive termination of this
Agreement.
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6.9 Notices. Any
and all notices, elections, approvals, consents, demands, requests and responses
("Communications")
permitted or required to be given under this Agreement or the Loan Documents
shall not be effective unless in writing, signed by or on behalf of the Party
giving the same, and sent by hand delivery or overnight courier service (such as
Federal Express), to the Party to be notified at the address of such Party set
forth below or at such other address within the continental United States as
such other Party may designate by notice specifically designated as a notice of
change of address and given in accordance with this Section. Any
Communications shall be effective upon the earlier of their receipt or three
days after mailing in the manner indicated in this Section. Receipt
of Communications shall occur upon actual delivery but if attempted delivery is
refused or rejected, the date of refusal or rejection shall be deemed the date
of receipt. Any Communication, if given to Lender, must be addressed
as follows, subject to change as provided above
BA Note
Acquisition LLC
c/o Bilzin Xxxxxxx Xxxxx Price &
Xxxxxxx LLP
0000 Xxxxxxxx Xxxxxx, Xxxxx
0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X.
Xxxxx, Esq.
Xxx X. Xxxxxx, Esq.
Telephone: 000.000.0000
Email: xxxxxx@xxxxxx.xxx
xxxxxxx@xxxxxx.xxx
and, if
given to Borrower, must be addressed as follows, notwithstanding any other
address set forth in the Loan Documents to the contrary, subject to change as
provided above:
DAL
Group, LLC
000 X.
Xxxx Xxxxxx Xxxx
Xxxxx
000
Xxxxxxxxxx,
XX 00000
Attn: Xxxxxxx
X. Xxxxxxxxx
Telephone: 000.000.0000
Email:
xxxxxxxxxx@xxxxxxxxxxxxxxx.xxx
With a
copy to:
Xxxxxx
Xxxxxxxxx PA
000 X.
Xxxxxxxx Xxxxxxxxx
Xxxxx
0000
Xxxxx, XX
00000
Attn: Xxxxx
Xxxx, Esq.
Telephone: 000.000.0000
Direct
Line: 305.714.4375
Email:
xxxxx@xxxxxxxxxxxxxxx.xxx
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6.10 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the state of Florida, without regard to its
principles of conflict of laws.
6.11 Future
Negotiations. Borrower acknowledges and agrees that (a) Lender
has no obligation whatsoever to discuss, negotiate or to agree to any
restructuring of the Loan, or any modification, amendment, restructuring or
reinstatement of the Loan Documents or to forbear from exercising its rights and
remedies under the Loan Documents, except as expressly provided in this
Agreement; (b) if there are any future discussions among Lender and Borrower
concerning any such restructuring, modification, amendment or reinstatement,
then no restructuring, modification, amendment, reinstatement, compromise,
settlement, agreement or understanding with respect to the Loan, the Loan
Documents, or any aspect thereof, shall constitute a legally binding agreement
or contract or have any force or effect whatsoever unless and until reduced to
writing and signed by authorized representatives of the Parties; and (c)
Borrower Parties shall not assert or claim in any legal proceedings or otherwise
that any such agreement exists except in accordance with the terms of this
Section.
6.12 Relationship
of Parties. The Parties do not intend by this Agreement to
create a partnership or a joint venture. The relationship of Lender
to Borrower is that of "lender" and "borrower" and the Parties acknowledge and
agree that the obligations of Lender and Borrower set forth herein are not
intended to benefit and should not be relied on by third parties.
6.13 Headings. The
headings of the articles, sections and subsections of this Agreement are for the
convenience of reference only and are not to be considered a part of this
Agreement, and shall not be used to construe, limit, or otherwise affect any of
such documents.
6.14 Modifications. The
terms of this Agreement may not be changed, modified, waived, discharged, or
terminated orally, but only by an instrument or instruments in writing, signed
by the Party against whom the enforcement of the change, modification, waiver,
discharge or termination is asserted.
6.15 Time of
Essence; Consents. Time is of the essence of this Agreement
and the Loan Documents. Any provisions for consents or approvals in
this Agreement shall mean that such consents or approvals shall not be effective
unless in writing and executed by Lender.
6.16 Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, and all such counterparts together shall constitute one and
the same instrument. This Agreement shall not be binding on either
party until executed and delivered by both parties.
6.17 Waiver of
Trial by Jury. EACH OF BORROWER AND LENDER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS AGREEMENT, THE NOTE, THE SECURITY INSTRUMENT, OR ANY OTHER
LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN), OR ACTIONS OF ANY OF BORROWER PARTIES OR LENDER RELATING TO
THE LOAN AND THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS
AGREEMENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER
ENTERING INTO THIS AGREEMENT AND THE OTHER FORBEARANCE
DOCUMENTS. EACH OF BORROWER AND LENDER IS HEREBY AUTHORIZED TO FILE A
COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER
BY BORROWER AND LENDER.
(REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK)
11
The Parties have executed and delivered
this Agreement as of the date and year first above written.
| LENDER: | |||
|
BA
Note Acquisition LLC, a Delaware limited
liability
company
|
|||
| By: DMRJ Group I, LLC, its manager | |||
|
|
By:
|
/s/ Xxxxxx Xxxxxxx | |
| Name: | Xxxxxx Xxxxxxx | ||
| Title: | Attorney in Fact | ||
| BORROWER: | |||
|
DAL
Group, LLC, a Delaware limited
liability
company
|
|||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxxxx | ||
| Title: | President | ||
12
JOINDER BY AND AGREEMENT OF
GUARANTOR
Each of the undersigned, Professional
Title and Abstract Company of Florida, LLC, Default Servicing, LLC, Timios, Inc.
and DJS Processing, LLC (being collectively and individually “Guarantor”), being
guarantors of the Loan (as such term is defined in that certain Forbearance
Agreement of even date herewith by and between BA Note Acquisition LLC, as
“Lender”, and DAL Group, LLC, a Delaware limited liability company, as
“Borrower” (the "Forbearance
Agreement") pursuant to each certain Guaranty dated as of March 18, 2010
(other than the Guaranty executed by Timios, Inc., which is undated) executed by
each Guarantor in favor of Original Lender, as now held by Lender (collectively,
the “Guaranty”), hereby
represents and warrants and acknowledges and agrees with Lender the
following:
1. Reaffirmation of
Guaranty. The Guaranty constitutes the valid, legally binding
obligation of Guarantor in favor of Lender, as successor in interest to Bank of
America, N.A., enforceable against Guarantor, in accordance with its
terms. By their 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 Lender Parties 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 Forbearance Agreement by Borrower 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 Modification
Agreement or by the consummation of any of the transactions contemplated thereby
and that the term "Indebtedness" under
the Guaranty shall include fraud or intentional misrepresentation by Borrower in
the Forbearance Agreement.
2. Agreements of
Guarantor. By their execution hereof, Guarantor agrees to the
execution of the Forbearance Agreement by Borrower.
3. Cooperation
Covenants. Without limiting the terms of the Guaranty,
Guarantor agrees that any failure of Borrower after a Termination Event or Event
of Default occurring from and after the Effective Date to comply, or any attempt
by Guarantor after a Termination Event or Event of Default occurring from and
after the Effective Date to interfere with Borrower's compliance, with the
Cooperation Covenants shall subject Guarantor to recourse for the
Indebtedness.
4. Waiver of
Trial by Jury. EACH GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH THIS AGREEMENT, THE NOTE, THE SECURITY INSTRUMENT, OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN), OR ACTIONS OF GUARANTOR OR LENDER RELATING TO THE LOAN AND
THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS AGREEMENT. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR LENDER ENTERING INTO THIS AGREEMENT AND
THE OTHER FORBEARANCE DOCUMENTS. LENDER IS HEREBY AUTHORIZED TO FILE
A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER
BY GUARANTOR.
5. Defined
Terms. All terms that are used herein that are not defined
herein shall have the meaning ascribed to them in the Forbearance
Agreement.
(REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK)
13
Each Guarantor has executed
and delivered this Joinder and Agreement to be effective as of the Effective
Date of the Forbearance Agreement.
| GUARANTOR: | |||
|
Professional
Title and Abstract Company of
Florida,
LLC
|
|||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxxxx | ||
| Title: | President | ||
|
Default
Servicing, LLC
|
|||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxxxx | ||
| Title: | Vice President | ||
|
DJS
Processing, LLC
|
|||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxxxx | ||
| Title: | President | ||
|
Timios,
Inc.
|
|||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxxxx | ||
| Title: | Vice President | ||
