Exhibit 10.9 to Form 10-KSB for the year ended December 31, 2001
PLEDGE AGREEMENT
PLEDGE AGREEMENT ("Agreement") dated as of ________________, 2001, made
by FIRST CHESAPEAKE FINANCIAL CORPORATION, a Virginia corporation, with an
address at 00 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 19148 (the
"Pledgor") to CRUSADER BANK, a federally chartered savings bank with offices at
0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 19107 (the "Bank").
WITNESSETH:
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WHEREAS, on February 5, 1999 the Bank and Pledgor and Collateral One
Mortgage Corporation, a Virginia corporation ("Collateral One"), (Pledgor and
Collateral One being hereinafter sometimes collectively referred to as
"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 made to the order
of the Bank a promissory note in the amount of One Million Five Hundred Thousand
Dollars ($1,500,000.00) (the "Note"); and
WHEREAS, on November 10, 1999, the Bank and Pledgor 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"), and the Bank agreed to amend
the Note on the terms, covenants and conditions set forth therein; and
WHEREAS, on even date herewith the Bank and Xxxxxxxx executed a
Forbearance Agreement (the "Forbearance Agreement") wherein Bank agreed to
forbear from exercising the rights and remedies available to it under the Note
on the terms, covenants and conditions set forth therein; and
WHEREAS, the Pledgor is the legal and beneficial owner of the shares of
capital stock described in Exhibit A hereto and issued by the issuers named
therein (the "Pledge Shares"); and
WHEREAS, it is a condition precedent to execution of the Forbearance
Agreement by the Bank that Pledgor shall have made the pledge contemplated by
this Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and in order
to induce the Bank to execute the Forbearance Agreement, and intending to be
legally bound hereby, the Pledgor hereby covenants and agrees as follows:
SECTION 1. Pledge. The Pledgor hereby pledges to the Bank, and grants
to the Bank a first priority security interest in, the following (the "Pledged
Collateral"):
(a) all of the Pledged Shares;
(b) all additional shares of stock of any issuer of the Pledged Shares
from time to time acquired by the Pledgor in any manner;
(c) the certificates representing the shares referred to in clauses (a)
and (b) above;
(d) the assignment separate from certificate representing the shares
referred to in clauses (a) and (b) above; and
(e) subject to Section 7, all dividends, cash, instruments and other
property or proceeds, from time to time received, receivable or otherwise
distributed or distributable in respect of or in exchange for any or all of the
shares referred to in clauses (a), (b), (c) and (d) above.
SECTION 2. Security for Obligations. This Agreement secures, and the
Pledged Collateral is security for, the indefeasible payment on demand of the
Note as amended, and all obligations of the Pledgor now or hereafter existing
under this Agreement and the Forbearance Agreement (all such obligations and
other obligations of the Pledgor being referred to herein as the "Secured
Obligations").
SECTION 3. Transfer Of Pledged Collateral. The Bank shall have the
right, at any time, in its discretion and without notice to the Pledgor, to
transfer to or to register in its name or any of its nominees any or all of the
Pledged Collateral, subject only to the revocable rights specified in Section
6(a) of this Agreement and to applicable law. In addition, the Bank shall have
the right at any time to exchange certificates or instruments representing or
evidencing Pledged Collateral for certificates or instruments of smaller or
larger denominations.
SECTION 4. Representations and Warranties. The Pledgor represents and
warrants as follows:
(a) The Pledgor is the legal and beneficial owner of all the Pledged
Collateral free and clear of any liens.
(b) The Pledged Collateral represents all of the issued and outstanding
shares of Collateral One.
(c) The Pledgor has full power, authority, and legal right to pledge,
assign, transfer, deliver, deposit and set over the Pledged Collateral pledged
to the Bank as provided herein.
(d) The Pledgor has not, prior to the date of this Agreement, taken any
action that would reduce the value of the Pledged Collateral.
(e) The pledge of the Pledged Shares pursuant to this Agreement creates
a valid and perfected first priority security interest in the Pledged
Collateral, securing the payment of the Secured Obligations.
(f) Pledgor shall not accept any dividends or distributions paid or
payable by Collateral One to Pledgor except as provided for in the Forbearance
Agreement.
The representations and warranties set forth in this Section 4 shall
survive the execution and delivery of this Agreement.
SECTION 5. Further Assurances: Supplements.
(a) The Pledgor agrees that at any time and from time to time, at the
expense of the Pledgor, the Pledgor will promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or desirable, or that the Bank may request, in order to perfect and
protect any security interest granted or purported to be granted hereby or to
enable the Bank to exercise and enforce its rights and remedies hereunder with
respect to any Pledged Collateral.
(b) The Pledgor will defend the title to the Pledged Collateral and the
liens of the Bank thereon against the claim of any Person and will maintain and
preserve such liens so long as any Secured Obligations or any commitment of the
Bank under the Business Loan Agreement are outstanding.
(c) The Pledgor shall not cause any payment to be made by Collateral
One except as provided in the Forbearance Agreement.
SECTION 6. Voting Rights: Dividends: Etc.
(a) As long as no Event of Default shall have occurred and be
continuing: The Pledgor shall be entitled to exercise any and all voting and
other consensual rights pertaining to the Pledged Collateral or any part thereof
for any purpose not inconsistent with the terms of the Forbearance Agreement or
the Business Loan Agreement; provided, however, that the Pledgor shall not
exercise or refrain from exercising any such right if such action would have a
material adverse effect on the value of the Pledged Collateral or any part
thereof.
(b) Upon the occurrence and during the continuation of an Event of
Default:all rights of the pledgor to exercise the voting and other consensual
rights which it would otherwise be entitled to exercise pursuant to section 6(a)
above shall cease, and all such rights shall thereupon become vested in the bank
which shall thereupon have the sole right to exercise such voting and other
consensual rights.
(c) In order to permit the Bank to exercise the voting and other rights
which it may be entitled to exercise pursuant to Section 6(b) above, and to
receive all dividends and distributions which it may be entitled to receive
under Section 7 below, the Pledgor shall, if necessary, upon written notice of
the Bank, from time to time execute and deliver to the Bank appropriate proxies,
dividend payment orders and other instruments as the Bank may reasonably
require.
SECTION 7. Dividends
(a) All dividends paid in respect of the pledged collateral shall be
paid to the Bank until the Note is paid in full, including the following:
(i) dividends paid or payable other than in cash in respect
of, and instruments and other property received, receivable or otherwise
distributed in respect of, or in exchange for, any Pledged Collateral;
(ii) dividends and other distributions paid or payable in cash
in respect of any Pledged Collateral in connection with a partial or total
liquidation or dissolution prohibited by any other Loan Document or in
connection with a reduction of capital, capital surplus or paid-in-surplus; and
(iii) cash paid, payable or otherwise distributed in
redemption of, or in exchange for, any Pledged Collateral, all of which shall be
held as Pledged Collateral and shall, if received by the Pledgor, be received in
trust for the benefit of the Bank, be segregated from the other property or
funds of the Pledgor, and be forthwith delivered to the Bank as Pledged
Collateral in the same form as so received (with any necessary endorsement).
SECTION 8. Transfers and Other Liens: Additional Shares. The Pledgor
agrees that it will not (i) sell, assign or transfer or otherwise dispose of, or
grant any option or warrant with respect to, any of the Pledged Collateral or
(ii) create or permit to exist any lien, security interest, or other charge or
encumbrance upon or with respect to any of the Pledged Collateral, except for
the lien in favor of the Bank under this Agreement.
SECTION 9. Bank Appointed Attorney-in-Fact. The Pledgor hereby appoints
the Bank the Pledgor's attorney-in-fact, such power being irrevocable and
coupled with an interest, with full authority in the place and stead of the
Pledgor and in the name of the Pledgor or otherwise from time to time in the
Bank's discretion to take any action and to execute any instrument which the
Bank may deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation, to receive, endorse and collect all
instruments made payable to the Pledgor representing any dividend, interest
payment or other distribution in respect of the Pledged Collateral or any part
thereof and to give full discharge for the same. The Bank agrees that, except
upon the occurrence and during the continuation of an Event of Default, it will
forbear from exercising the power of attorney or any rights granted to the Bank
pursuant to this Section 9.
SECTION 10. Bank May Perform. If the Pledgor fails to perform any
agreement contained herein, the Bank may itself perform, or cause performance
of, such agreement, and the expenses of the Bank incurred in connection
therewith shall be payable by the Pledgor under Section 12 of this Agreement.
SECTION 11. Events of Default. Each of the following shall constitute
an event of default ("Event of Default") hereunder:
(a) The occurrence of an Event of Default under the Business Loan
Agreement, the Amendment, the Note, or the Forbearance Agreement or any other
documents executed by Pledgor or Collateral One in connection therewith; or
(b) Failure by Pledgor to observe or perform any of the provisions of
this Agreement; or
(c) Any representation or warranty of Pledgor made herein proves to be
false or misleading in any material respect.
SECTION 12. Remedies Upon Default. If any Event of Default shall have
occurred:
(a) The Bank may exercise in respect of the Pledged Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party in default under the
Uniform Commercial Code (the "Code") in effect in the Commonwealth of
Pennsylvania at that time, and the Bank may also, without notice except as
specified below, transfer or sell the Pledged Collateral or any part thereof in
one or more parcels at public or private sale, at any exchange, broker's board
or at any of the Bank's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Bank may deem commercially
reasonable.
(b) All cash proceeds received by the Bank in respect of any sale of,
collection from, or other realization upon all or any part of the Pledged
Collateral shall be applied by the Bank:
First, to the payment of the costs and expenses of such sale,
including reasonable compensation to the Bank and its agents and counsel, and
all expenses, liabilities and advances made or incurred by the Bank in
connection therewith;
Second, to the Bank on account of the Secured Obligations in
such order as the Bank may elect; and
Third, after indefeasible payment in full of all Secured
Obligations, to the payment to the Pledgor, or its successors or assigns, or to
whomsoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct, of any surplus then remaining from such
proceeds.
SECTION 13. Special Covenants. During the term of this Pledge,
Collateral One shall not take any action to (a) terminate the employment of
Xxxxxxx Xxxxxxxxx ("Everslage") or otherwise release Everslage from any terms
and conditions of the employment agreement dated February 9, 1999 without the
prior consultation of the Bank; (b) enter into any other employment or
management agreements with any other party without the prior written consent of
the Bank; (c) transfer substantially all of the assets of Collateral One to any
other party; (d) enter into any agreements with Pledgor or any of its
shareholders without the prior written consent of the Bank; or (e) borrow or
transfer any monies to or from Pledgor, its affiliates, principals, or
subsidiaries, unless otherwise permitted under the terms of that certain
Forbearance Agreement between the Bank, Pledgor and Collateral One.
SECTION 14. Expenses. The Pledgor will upon demand pay any and all
expenses, which may be incurred in connection with (a) the administration of
this Agreement, (b) the custody or preservation of, or the sale of, collection
from, or other realization upon any of the Pledged Collateral; (c) the exercise
or enforcement of any of the rights of the Bank hereunder; or (d) the failure by
the Pledgor to perform or observe any of the provisions hereof.
SECTION 15. Security Interest Absolute. All rights of the Bank and
security interests hereunder, and all obligations of the Pledgor hereunder shall
be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Business Loan
Agreement, the Note or any other Loan Document or any other agreement or
instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Secured Obligations, or any other amendment or
waiver of or any consent to any departure from the Business Loan Agreement, the
Note or any other Loan Document;
(c) any exchange, release or nonperfection of any other collateral, or
any release or amendment or waiver of or consent to departure from any guaranty
for all or any of the Secured Obligations; or
(d) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Pledgor or a third party pledgor.
SECTION 16. Indemnification. The Pledgor agrees to indemnify and hold
the Bank harmless from and against any taxes, liabilities, claims and damages,
including reasonable attorneys' fees and disbursements, and other expenses
incurred or arising by reason of the taking or the failure to take action by the
Bank, in good faith, in respect of any transaction effected under this Agreement
or in connection with the lien provided for herein, including, without
limitation, any taxes payable in connection with the delivery or registration of
any of the Pledged Collateral as provided herein. The obligations of the Pledgor
under this Section 16 shall survive the termination of this Agreement.
SECTION 17. Waiver. No delay on the Bank's part in exercising any power
of sale, Lien, option or other right hereunder, and no notice or demand which
may be given to or made upon the Pledgor by the Bank with respect to any power
of sale, Lien, option or other right hereunder, shall constitute a waiver
thereof, or limit or impair the Bank's right to take any action or to exercise
any power of sale, lien, option, or any other right hereunder, without notice or
demand, or prejudice the Bank's rights hereunder or the rights of the Bank under
the Business Loan Agreement or any of the Loan Documents as against the Pledgor
in any respect.
SECTION 18. Amendments, Etc. No amendment or waiver of any provision of
this Agreement, nor consent to any departure by the Pledgor herefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Bank, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 19. Addresses for Notices. All notices and other communications
provided for hereunder shall be in writing and mailed, telecopied or delivered,
to the Pledgor or to the Bank at the address provided for in the Business Loan
Agreement, or as to any Person at such other address as shall be designated by
such Person in a written notice to each other Person complying as to delivery
with the terms of this Section. All such notices and other communications shall,
when mailed, be effective when deposited in the mails, addressed as aforesaid.
SECTION 20. Continuing Security Interest; Transfer of Note. This
Agreement shall create a continuing first priority security interest in the
Pledged Collateral, and shall (a) remain in full force and effect until
indefeasible payment in full of the Secured Obligations and the termination of
the commitment of the Bank under the Business Loan Agreement; (b) continue to be
effective or be reinstated, as the case may be, if at any time payment and
performance of the Secured Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by the obligee of the Secured Obligations, all as though such payment
or performance had not been made; (c) be binding upon the Pledgor, its
successors and assigns; and (d) inure to the benefit of the Bank and its
successors, transferees and assigns. The Bank may assign or otherwise transfer
any Note held by it to any other person or entity, and such other person or
entity shall thereupon become vested with all the benefits in respect thereof
granted to the Bank herein or otherwise, all as provided in the Business Loan
Agreement. Upon the indefeasible payment in full of the Secured Obligations and
the termination of the commitment of the Bank under the Business Loan Agreement,
the Pledgor shall be entitled to the return, upon its request and at its
expense, of such of the Pledged Collateral as shall not have been sold or
otherwise applied pursuant to the terms hereof.
SECTION 21. Severability. If for any reason any provision or provisions
hereof are determined to be invalid and contrary to any existing or future law,
such invalidity shall not impair the operation of or affect those portions of
this Agreement which are valid.
SECTION 22. Section Titles. The Section titles contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
SECTION 23. Waiver of Jury Trial. The parties hereto hereby agree to
waive any right they may have to a jury trial in connection with any action,
suit or proceeding arising out of or related in any way to this Agreement.
SECTION 24. Capitalized Terms. All capitalized terms not otherwise
defined in this Agreement shall have the meanings ascribed to such terms in the
Forbearance Agreement.
SECTION 25. Governing Law; Terms. This Agreement shall be governed by,
and construed and enforced accordance with, laws of the Commonwealth of
Pennsylvania (without giving effect to the conflicts of laws principles
thereof). Unless otherwise defined herein or in the Business Loan Agreement.
Terms defined in Articles 8 and 9 of the Uniform Commercial Code in the
Commonwealth of Pennsylvania are used herein as therein.
IN WITNESS WHEREOF, the Pledgor has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
Attest: First Chesapeake Mortgage Corporation,
A Virginia corporation
_____________________________ By: ________________________________
Name: ______________________________
Title: _____________________________
JOINDER
Intending to be legally bound, Collateral One hereby joins in this
Agreement, and agrees to be bound by its terms and conditions and further agrees
that it will not issue any capital stock without the prior written consent of
the Bank.
Attest: COLLATERAL ONE MORTGAGE CORPORATION, a
Virginia corporation
__________________________ By:___________________________________,
President
FORBEARANCE AGREEMENT AND PLEDGE 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
______________________________________________, Villanova, Pennsylvania 19087
(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 ____ Page ____ et seq., granted and conveyed unto the
Bank, its successors and assigns, a lien on the property located at ____
_______________, Villanova, Pennsylvania, 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 ____,
page ____ 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, 1999, 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 Xxxxxxxx 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 Xxxxxxxx"), 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.
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 Xxxxxxxxx, Xxxxxxx,
Xxxxx, Xxxxxxxx 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 Xxxxxxxx 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 Xxxxxxxx
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, Xxxx 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 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) Xxxxxxxx deliver to the Bank good standing
certificates certified by the Secretary of State of Xxxxxxxx'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;
(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
Xxxxx & 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 Sue. 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 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 sue;
(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
Xxxxxxxx Xxxxxxx Bank, FSB
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: 000.000.0000
and:
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 Xxxxx & 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
Xxxxxxxx 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 Xxxxxxxx;
(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 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.ss.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.
ss.101 et seq., the Bank shall be given automatic and immediate relief from the
stay under ss.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.ss.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.ss.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.ss.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. ss.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 ss.362(d) to implement and enforce the provisions of this
Agreement, the Construction Loan Agreement, the Note or any Loan Document;
(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 ss.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 Xxxxxxxx, 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.
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:
__________________________ _____________________________(SEAL)
Xxxx Xxxxxxxx
Witness:
__________________________ _____________________________(SEAL)
Xxxxxx Xxxxxxx
Witness:
__________________________ _____________________________(SEAL)
Xxxxxxxx Xxxxxxx
JOINDER
DADC and Xxxxxxxxx, as Guarantor, join in this Agreement for purposes
of ratifying and reaffirming the Assignments of Partnership Income dated July
25, 1997 and November 9, 1999 (which date the DADC and Xxxxxxxxx agree was an
error and was intended to be, and is actually, November 10, 1999) (collectively
referred to as the "Assignments") and hereby affirm that said Assignments were
effective to assign all of DADC's rights to receive income under the Joint
Venture Agreement including, but not limited to, Net Cash Flow, as such term is
defined under the Joint Venture Agreement, and any fees payable to DADC or its
affiliates pursuant to paragraph 3.5 of the Joint Venture Agreement, as security
for the Loan, as increased by the Amendment, and the Xxxxxxxxx Guaranty, and any
sale proceeds from the sale of DADC to interest in the Joint Venture.
Further, intending to be legally bound Xxxxxxxxx agrees to be bound by
the terms and conditions of paragraph 22.
Attest: DELAWARE AVENUE DEVELOPMENT
CORPORATION
__________________________ By: _____________________________(SEAL)
Xxxx Xxxxxxxxx, President
Witness:
__________________________ _____________________________(SEAL)
Xxxx Xxxxxxxxx
