Exhibit 10.107
SECOND AMENDMENT TO FORBEARANCE
AGREEMENT
This
Second Amendment to Forbearance Agreement (this “
Amendment ”) is made as of this ____
day of September, 2007, by and among LASALLE BANK NATIONAL
ASSOCIATION, AS TRUSTEE OF MARATHON REAL ESTATE CDO 2006-1
GRANTOR TRUST, successor-in-interest to Marathon Structured
Finance Fund, L.P., a Delaware limited partnership (the
“ Lender ”). SOUTH BEACH RESORTS,
LLC, a Florida limited liability company (the “
Borrower ”), FRED PAUZAR, an individual
resident of the State of Florida (“
Pauzar ”), and MALCOLM WRIGHT, an
individual resident of the State of Florida (“
Wright ”, and together with Pauzar, the
“ Principals ”, and the
Principals, together with Borrower, the “
Borrowing Parties ”).
RECITALS
A. Lender
and Borrower are parties to that certain Loan Agreement dated
as of June 30, 2005 (the “ Loan
Agreement ”), pursuant to which Lender agreed
to make a loan to Borrower (the “ Loan
”) in the amount of up to Nine Million and NO/100
Dollars ($9,000,000.00).
B. The
Loan is evidenced by that certain Promissory Note dated June
30, 2005 (the “ Note ”), and is
secured by the lien of that certain Mortgage, Assignment of
Rents and Security Agreement dated June 30, 2005 and recorded
among the land records of Dade County, Florida on July 11,
2005 in Official Records Book 23557, Page 3073 (the “
Mortgage ”).
C. Payment
of certain obligations of Borrower pursuant to the Loan
Documents is guaranteed by the Principals pursuant to the
terms of, inter alia, that certain Guaranty (Exceptions to
Nonrecourse Liability) dated as of June 30, 2005 (the “
Guaranty ”). As used herein,
the term “ Loan Documents ”)
shall mean the Loan Agreement, the Note, the Mortgage, the
Guaranty and any and all other documents evidencing, securing
and/or governing the Loan whether now existing or hereafter
executed and delivered.
D. The
Loan matured by its terms on January 11, 2007 and Borrower
failed to repay the Loan in accordance with the terms of and
as required by the Loan Documents (the “
Existing Default ”).
E. Pursuant
to the terms of that certain Forbearance Agreement among
Lender and the Borrowing Parties dated as of February 2, 2007
(as amended and modified by that certain First Amendment dated
as of July 11, 2007 and hereby, the “
Forbearance Agreement ”), Lender
agreed, among other things, to forbear from exercising any
right or remedy against the Borrowing Parties with respect to
the Existing Default during the Initial Forbearance Period and
the Extended Forbearance Period.
F. Borrower
has requested that Lender continue to waive the Existing
Default, and Lender has conditionally agreed to continue to
waive such Existing Default, on the terms set forth below
provided, however, that in the event that any Event of Default
or Additional Default occurs during the Forbearance Period or
prior to the payment in full of the Obligations of the
Borrower to Lender, such waiver shall be null and
void.
NOW,
THEREFORE, in consideration of the mutual undertakings set
forth below and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties agree as
follows:
AGREEMENT
1.
Incorporation of Recitals; Defined
Terms . Borrower and
Lender agree that the Recitals above are a part of this
Amendment. Unless otherwise expressly defined in
this Amendment, terms defined in the Forbearance Agreement or
in the Loan Agreement shall have the same meaning under this
Amendment.
(a) As
used herein, the term “ Budget ”
shall mean a detailed budget for the Work, broken down by line
item, and all amendments, modifications and/or updates
thereto.
(b) As
used herein, the term " CDO " shall mean the
Marathon Real Estate CDO 2006-1 Grantor Trust.
(c) As
used herein, the term “ Forbearance
Period ” shall mean the Initial Forbearance
Period, the Extended Forbearance Period, the Second Extended
Forbearance Period and the Third Extended Forbearance Period,
as the case may be.
(d) As
used herein, the term " Interest Payment "
shall have the meaning set forth in Section 8 of this
Amendment.
(e) As
used herein, the term “ Work ”
shall mean renovation of the Property for use a time-share
use.
2.
Acknowledgements .
Borrowing Parties hereby acknowledge, ratify,
admit, stipulate and agree, without precondition or
qualification, as follows:
(a) Each
of the Recitals contained above in this Amendment is true,
correct and complete in all material respects.
(b) Borrower
and Principals (i) entered into the Loan Documents to which
they are parties, and (ii) are entering into this Amendment of
their own free will, without coercion or threat of any kind
from Lender or from any other Person, fully understanding the
terms hereof (including the waiver of certain material rights
afforded by law), and are fully aware that they may have
potentially advantageous alternatives to entering into this
Amendment. Borrower and Principals acknowledge,
stipulate and agree that any other alternative would present a
material risk to their detriment.
(c) The
Loan Documents constitute valid and binding obligations of
Borrower and Principals, enforceable against each of them in
accordance with their respective terms.
(d) As
of September ___, 2007, the Obligations shall consist of the
following:
|
Principal
|
$_________
.00
|
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Interest
Due
|
$_________
|
|
Tax
Escrow
|
$_________
|
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Insurance
Escrow
|
$_________ |
In
addition, Borrower is obligated to pay to and reimburse Lender
for all amounts incurred in connection with the Obligations
and/or the Existing Default, including, without limitation,
costs and expenses of Lender’s legal counsel, which
amounts constitute part of the aggregate
Obligations.
(e) Except
as specifically provided in Section 6(b) and (c) below,
Borrower’s obligation to repay the Obligations is
unconditional and without defense, counterclaim, recoupment or
offset. The Obligations are immediately due and
payable in full.
(f) (i) There
continue to exist one or more defaults under the terms of the
Loan Documents, (ii) any and all notices required to be given
by Lender have in fact been given and received, (iii) all
applicable grace periods have expired without cure having been
effected, and (iv) Borrowing Parties hereby waive all such
notice provisions and grace periods in connection with the
Existing Default.
(g) Borrower
has no defenses, rights of set-off or recoupment, causes of
action or claims or counterclaims with respect to the
Obligations and/or the liens and security interests granted to
Lender pursuant to the terms of the Loan Documents, and all of
such liens and security interests are enforceable by
Lender.
(h) Borrowing
Parties have derived and shall continue to derive material
benefit by virtue of the execution and delivery of the
Forbearance Agreement (including, without limitation, this
Amendment) and the performance of their respective obligations
thereunder and hereunder.
3.
Reaffirmation of Obligations
. Borrowing Parties reaffirm and
ratify that Borrower is indebted and obligated, directly or
indirectly, to Lender in an amount equal to the Obligations
set forth in Section 2(d) above. Interest shall
continue to accrue on and forms a part of the Obligations
pursuant to the terms of the Loan Documents as set forth
herein. Borrower reaffirms and ratifies that,
pursuant to the terms of the Loan Documents, it is liable to
pay or reimburse applicable costs, fees and reasonable
attorneys’ fees and expenses related to the Obligations
incurred by Lender, all of which form a part of the
Obligations. Borrower hereby promises to pay to the
order of Lender the Obligations, plus any and all accrued
interest thereon and accrued costs, fees and reasonable
attorneys’ fees and expenses in accordance with the Loan
Documents as modified by the terms hereof.
4.
Bankruptcy Proceedings
. All representations and
warranties set forth in Section 4 of the Forbearance Agreement
are true and correct on and as of the date hereof and all
acknowledgements, covenants and agreements set forth in
Section 4 of the Forbearance Agreement are each hereby
ratified, remain in full force and effect and constitutes the
valid and legally binding obligations of Borrower and/or
Principals, as the case may be, enforceable in accordance
therewith.
5.
Release; Lender’s Liability
. (a) Borrower,
Principals, their successors and assigns (including, without
limitation, any estate, debtor, trustee, receiver or assignee
for the benefit of creditors) to the fullest extent permitted
by law (collectively, the “ Releasing
Parties ”), hereby release, remise, forever
discharge and forgive Lender, its shareholders, directors,
affiliates, officers, employees, servicers, agents, attorneys,
representatives, predecessors, successors and assigns
(collectively, the “ Released Parties
”), of and from any and all claims, causes, causes of
action, demands, counterclaims, cross claims, damages,
complaints, suits, bonds, losses, liabilities, obligations,
commitments, contribution, indemnity or otherwise, at law or
equity or mixed, known, unknown, suspected, unsuspected,
asserted, unasserted, which the Releasing Parties or any of
them, now have, had or may in the future have against the
Released Parties
or any of them which arose prior to the execution and delivery
of this Agreement and relate to the Loan Documents and/or the
Obligations.
(b) Lender
shall not be liable for any claims, suits, actions, costs,
damages, liabilities or expenses, or incidental,
consequential, special or punitive damages (“
Liabilities ”) in connection with the
subject matter of this Amendment other than Liabilities caused
by the gross negligence or willful misconduct of Lender, and
Borrower hereby agrees to indemnify and hold harmless Lender
and its affiliates and the directors, officers, employees and
agents of any of them, and the successors and assigns of
Lender from and against any and all Liabilities arising from
or in connection with any acts or omissions taken by Borrower
in connection with this Amendment or the performance of
Borrower’s duties under this Amendment, other than those
Liabilities caused by the gross negligence or willful
misconduct of Lender.
6.
Forbearance Period .
(a) During the Third Extended
Forbearance Period (as defined below), Lender agrees to
forbear from exercising any right or remedy against Borrowing
Parties with respect to the Existing Default, provided (i)
there shall occur no Event of Default other than the Existing
Default, and (ii) Borrower shall continue to make monthly
Payments of accrued interest on the Payment Date as
contemplated by Section 2.2.1 of the Loan
Agreement. Nothing herein shall be construed as an
agreement by Lender from asserting any affirmative defense,
cross-claim, counterclaim or third-party claim in any action
or proceeding that is now pending or may hereafter be
commenced. Lender’s agreement to forbear from
exercising any rights or remedies in accordance with this
paragraph shall and continu
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