Exhibit 10.28
FOREBEARANCE AND MODIFICATION AGREEMENT
THIS FOREBEARANCE AGREEMENT is executed as of March 31, 2005, by and
between 000 Xxxxxx Xxxxxx, LLC, a New York limited liability company (the
"Borrower"), with an address at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx, 00000,
and DCI USA, Inc. (the "Lender"), with an address at 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, XX 00000.
RECITALS
Whereas, Borrower is obligated to, among other things, make quarterly
interest payments to Lender pursuant to the terms and conditions of the
Promissory Note dated February 24, 2004 (the "$770,000 Note") in the original
principal amount of $770,000 from Borrower to Direct Capital Investment, Ltd.
("DCI"), which was duly assigned to Lender;
Whereas, payments were made to DCI at the end of each calendar quarter
notwithstanding the terms of the $770,000 Note;
Whereas, payment was made by Borrower on February 1, 2005 in the amount of
$7,000 against accrued interest of $13,163.84 which was due and payable on
December 31, 2004 with respect to the $770,000 Note;
Whereas, Borrower has requested, and Lender has agreed, that the next
payment due to Borrower under the $770,000 Note shall not be due until March 31,
2005,
Whereas, Borrower is obligated to, among other things, make quarterly
interest payments to Lender commencing on February 25, 2005 pursuant to the
terms and conditions of the Assignment of Obligations under Promissory Note and
Indemnification Agreement (the "$600,000 Note; and together with the $770,000
Note, the "Notes") which were duly assigned to the Lender from 000 Xxxxxx Xxxxxx
Property Development, LLC with the consent of Hypothecators Mortgage Company and
Xxxxxx Xxxxx;
Whereas, Borrower has requested, and Lender has agreed, that the first
payment due to Borrower under the $600,000 Note in the amount of $6,115.07 shall
not be due until March 31, 2005;
Now, therefore, for good and valuable consideration, the receipt and
sufficiency are hereby acknowledged, the parties agree as follows:
1. Forebearance. Lender hereby agrees with the Borrower that it shall
forego the interest payments and the default payments related thereto due it
pursuant to the terms of the Notes.
On March 31, 2005, Borrower shall make a quarterly interest payment to the
Lender, representing accrued interest with respect to the $770,000 Note from
January 1, 2005 through and including March 31, 2005, on March 31, 2005. Said
payment of $6,115.07 shall represent accrued interest with respect to the
$770,000 Note.
On March 31, 2005, Borrower shall make the first quarterly interest
payment to the Lender of $6,000, representing accrued interest with respect to
the $600,000 Note from November 29, 2004 through and including February 25,
2005.
2. Default. If said payment is not made within 15 business days after
March 31, 2005, the payment which was due on December 31, 2004 with respect to
the $770,000 Note shall bear interest as provided in Section 2 of the Note from
January 1, 2005 until the late payment is made in full.
3. Note Modification. Notwithstanding the terms of the Notes to the
contrary, as of the date hereof Borrower shall make quarterly payments to Lender
of interest only commencing March 31, 2005 in arrears. All other terms of the
Notes shall remain in full force and effect except as specifically modified
herein.
4. Reference. On and after the date hereof, each reference in each Note to
"this Note", "hereunder", "hereof", "herein" or words of like import, and each
reference to the Note in any other agreement, document or other instrument,
shall mean, and be a reference to the particular Note, as modified by this
agreement.
5. Counterparts. This agreement may be executed in one or more
counterparts and by facsimile, and all of said counterparts taken together shall
be deemed to constitute one and the same instrument.
6. Captions. The captions used herein are intended for convenience of
reference only, shall not constitute any part of this agreement and shall not
modify or affect in any manner the meaning or interpretation of any of the
provisions of this agreement.
7. Binding Effect. This agreement shall be binding upon and inure to the
benefit of the permitted successors and assigns of the parties hereto.
8. Governing Law. This agreement and the rights and obligations of the
parties under this agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to conflict of laws rules
applied in such state.
IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement as of
the date appearing on the first page of this Agreement.
LENDER:
DCI USA, Inc.
By: /s/ Xxxxxxxx Xxxx Xxxx
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Chief Executive Officer
BORROWER:
000 Xxxxxx Xxxxxx, LLC
By: /s/ Xxxxx Xxxxxxxxxx
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