Exhibit 10.27
FAITH WALK DESIGNS, INC. Sterling Bank
00000 XXXXXX XXXX XXXXX X P.0. Xxx 000000
XXXXXXX XX 00000 0000 Xxxxxxx, Xxxxx 00000-0000
DEBTOR'S NAME, ADDRESS AND SSN OR TIN SECURED PARTY'S NAME AND ADDRESS
("I" means each Debtor who signs.) ("You" means the Secured Party,
its successors and assigns.)
I am entering into this security agreement with you on November 16, 2000 (date).
SECURED DEBTS. I agree that this security agreement will secure the payment and
performance of the debts, liabilities or obligations described below that (Check
one) [ ] I [X] (name)FAITH WALK DESIGNS, INC. owes) to you now or in the future:
(Check one below):
[ ] Specific Debt(s). The debt(s), liability or obligations evidenced by
(describe): __________________ and all extensions, renewals, refinancings,
modifications and replacements of the debt, liability or obligation.
[X] All Debt(s). Except in those cases listed in the "LIMITATIONS" paragraph on
page 2, each and every debt, liability and obligation of every type and
description (whether such debt, liability or obligation now exists or is
incurred or created in the future and whether it is or may be direct or
indirect, due or to become due, absolute or contingent, primary or
secondary, liquidated or unliquidated, or joint, several or joint and
several).
Security Interest. To secure the payment and performance of the above described
Secured Debts, liabilities and obligations, I give you a security interest in
all of the property described below that I now own and that I may own in the
future (including, but not limited to, all parts, accessories, repairs,
improvements, and accessions to the property), wherever the property is or may
be located, and all proceeds and products from the property.
[X] Inventory: All inventory which I hold for ultimate sale or lease, or which
has been or will be supplied under contracts of service, or which are raw
materials, work in process, or materials used or consumed in my business.
[X] Equipment: All equipment including, but not limited to, all machinery,
vehicles, furniture, fixtures, manufacturing equipment, farm machinery and
equipment, shop equipment, office and recordkeeping equipment, and parts
and tools. All equipment described in a list or schedule which I give to
you will also be included in the secured property, but such a list is not
necessary for a valid security interest in my equipment.
[ ] Farm Products: All farm products including, but not limited to: (a) all
poultry and livestock and their young, along with their products, produce
and replacements; (b) all crops, annual or perennial, and all products of
the crops; and (c) all feed, seed, fertilizer medicines, and other supplies
used or produced in my farming operations.
[X] Accounts, Instruments, Documents, Chattel Paper and Other Rights to
Payment: All rights I have now and that I may have in the future to the
payment of money including, but not limited to:
(a) payment for goods and other property sold or leased or for services
rendered, whether or not I have earned such payment by performance;
and
(b) rights to payment arising out of all present and future debt
instruments, chattel paper and loans and obligations receivable. The
above include any rights and interests (including all liens and
security interests) which I may have by law or agreement against any
account debtor or obligor of mine.
[X] General Intangibles: All general intangibles including, but not limited to,
tax refunds, applications for patents, patents, copyrights, trademarks,
trade secrets, good will, trade names, customer lists, permits and
franchises, and the right to use my name.
[ ] Government Payments and Programs: All payments, accounts, general
intangibles, or other benefits (including, but not limited to, payments in
kind, deficiency payments, letters of entitlement, warehouse receipts,
storage payments, emergency assistance payments, diversion payments, and
conservation reserve payments) in which I now have and in the future may
have any rights or interest and which arise under or as a result of any
preexisting, current or future Federal or state governmental program
(including, but not limited to, all programs administered by the Commodity
Credit Corporation and the ASCS).
[X] The secured property includes, but is not limited by, the following:
ASSIGNMENT OF LIFE INSURANCE POLICY #0352046
I/A/O 250,000.00 VESTED IN THE NAME OF XXXX X. XXXXXX ISSUED BY
JEFFERSON PIOLT FINANCIAL
If this agreement covers timber to be cut, minerals (including oil and gas),
fixtures or crops growing or to be grown, the legal description is:
I am a(n) [ ] individual [ ] partnership I AGREE TO THE TERMS SET OUT ON BOTH
[X] corporation [ ] __________ PAGE 1 AND PAGE 2 OF THIS AGREEMENT. I
have received a copy of this document
[ ] If checked, file this agreement in on today's date.
the real estate records.
Record Owner (if not me):_______________ FAITH WALK DESIGNS, INC.
________________________________________ -------------------------------------
________________________________________ (Debtor's Names)
The property will be used for [ ] personal By:
[X] business [ ] agricultural -------------------------------------
[ ]__________ reasons. XXXX XXXXXXX XXXXXX
Sterling Bank Title: PRESIDENT
----------------------------------------- -------------------------------------
(Secured Party's Name)
By: By:
----------------------------------------- -------------------------------------
XXXX X. XXXXX
Title: SR. VP Title:
----------------------------------------- -------------------------------------
Third Party Pledge Agreement
121900054
DATE November 16, 2000
PLEDGOR XXXX X. XXXXXX SECURED Sterling Bank
PARTY
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XXXXXXXX
XX 00000 DUNBROOK ADDRESS P.O. Box 924009
RESIDENCE
ADDRESS
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CITY, CITY,
STATE & HOUSOTN, TEXAS 00000 XXXXX & Xxxxxxx, Xxxxx 00000-0000
ZIP CODE ZIP CODE
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1. Security Interest and Collateral. To secure (check one):
[X] the payment and performance of each and every debt, liability and
obligation of every type and description which FAITH WALK DESIGNS INC
("Debtor") may now or at any time hereafter owe to Secured Party (whether
such debt, liability or obligation now exists or is hereafter created or
incurred, and whether it is or may be direct or indirect, due or to become
due, absolute or contingent, primary or secondary, liquidated or
unliquidated, or joint, several or joint and several; all such debts,
liabilities and obligations being herein collectively referred to as the
"Obligations"),
[ ] the debt, liability or obligation of _________________ ("Debtor") to
Secured Party evidenced by or arising under the following:
___________________, and any extensions, renewals or replacements thereof
(herein referred to as the "Obligations"),
Pledgor hereby grants Secured Party a security interest (herein called the
"Security Interest") in (check one):
[ ] all property of any kind now or at any time hereafter owned by Pledgor,
or in which Pledgor may now or hereafter have an interest, which may now be
or may at any time hereafter come into the possession or control of Secured
Party or into the possession or control of Secured Party's agents or
correspondents, whether such possession or control is given for collateral
purposes or for safekeeping, together with all proceeds of and other rights
in connection with such property (herein called the "Collateral").
[X] the property owned by Pledgor and held by Secured Party that is
described as follows: ASSIGNMENT OF LIFE INS. POLICY #0352046 I/A/0
$250,000.00, together with all rights in connection with that property
(herein called the "Collateral").
2. Representations, Warranties and Covenants. Pledgor represents, warrants and
covenants that:
(a) Pledgor will duly endorse, in blank, each and every instrument
constituting Collateral by signing on said instrument or by signing a separate
document of assignment or transfer, if required by Secured Party.
(b) Pledgor is the owner of the Collateral free and clear of all liens,
encumbrances, security interests and restrictions, except the Security Interest
and any restrictive legend appearing on any instrument constituting Collateral:
(c) Pledgor will keep the Collateral free and clear of all liens,
encumbrances and security interests, except the Security Interest.
(d) Pledgor will pay, when due, all taxes and other governmental charges
levied or assessed upon or against any Collateral.
(e) At any time, upon request by Secured Party, Pledgor will deliver to
Secured Party all notices, financial statements, reports or other communications
received by Pledgor as an owner or holder of the Collateral.
(f) Pledgor will upon receipt deliver to Secured Party in pledge as
additional Collateral all securities distributed on account of the Collateral
such as stock dividends and securities resulting from stock splits,
reorganizations and recapitalizations.
3. Rights of Secured Party. Pledgor agrees that Secured Party may at any time,
whether before or after the occurrence of an Event of Default and without
notice or demand of any kind, (i) notify the obligor on or issuer of any
Collateral to-make payment to Secured Party of any amounts due or
distributable thereon, (ii) in Pledgor's name or Secured Party's name
enforce collection of any Collateral by suit or otherwise, or surrender,
release or exchange all or any part of it, or compromise, extend or renew
for any period any obligation evidenced by the Collateral, (iii) receive
all proceeds of the Collateral, and (iv) hold any increase or profits
received from the Collateral as additional security for the Obligations,
except that any money received from the Collateral shall, at Secured
Party's option, be applied in reduction of the Obligations, in such order
of application as Secured Party may determine, or be remitted to Debtor.
THIS WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
THIS AGREEMENT CONTAINS ADDITIONAL PROVISIONS SET FORTH ON PAGE 2 HEREOF,
ALL OF WHICH ARE MADE A PART HEREOF.
XXXX X. XXXXXX
---------------------------
Pledgor's Name
By ________________________
Title:_____________________
By_________________________
Title:_____________________
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MODIFICATION AND EXTENSION AGREEMENT
THE STATE OF TEXAS )
COUNTY OF XXXXXX )
This MODIFICATION AND EXTENSION AGREEMENT ("Agreement") is executed
this 20TH day of DECEMBER, 2000, but effective as of the 16TH day of NOVEMBER,
2000 by and between FAITH WALK DESIGNS, INC. ("Borrower"), whose address for
notice hereunder is identified below, and STERLING BANK, a Texas banking
corporation;
WITNESSETH:
WHEREAS, Lender loaned to Borrower, and Borrower borrowed from Lender
$200,000.00 ("Loan") such Loan being evidenced, in part, by the following
instruments:
(a) Promissory Note ("Note") dated FEBRUARY 18, 2000 executed by
Borrower, payable to the order of Lender, in the original principal amount of
$200,000.00, upon which there remains unpaid a principal balance of $197,777.78,
and upon which interest has been paid to NOVEMBER 16, 2000;
(b) Deed of Trust and Security Agreement ("Deed of Trust") of even date
with the Note, executed by XXXX XXXXXX AND XXXXX X. XXXXXX in favor of Xxxxxxx
Xxx, Trustee, and Lender, as "Beneficiary," and being recorded under Clerk's
File No. U264334 in the Real Property Records of Xxxxxx County, Texas, covering
the property described as A 5.9231 ACRE TRACT OF LAND (258.012 SQUARE FEET), AS
RECORDED UNDER XXXXXX COUNTY CLERK'S FILE NO. S193785, LOCATED IN THE XXXX X.
XXXXXX SURVEY, ABSTRACT NO. 375, XXXXXX COUNTY, TEXAS, AND BEING MORE
PARTICULARLY DESCRIBED IN METES AND BOUNDS IN ATTACHED EXHIBIT "A" (the
"Property");
(c) Security Agreement (the "Security Agreement") dsted NOVEMBER 16,
2000 executed by Borrower, as debtor, to Lender, as secured party, covering A
BLANKET ASSIGNMENT OF ANY AND ALL ACCOUNT, CONTRACT RIGHTS, CHATTEL PAPER,
INSTRUMENTS, GENERAL INTANGIBLES AND RIGHTS TO PAYMENTS OF EVERY KIND,
INVENTORY, EQUIPMENT, FURNITURE, TOGETHER WITH ALL SUBSTITUTIONS & REPLACEMENTS
THEREOF, ALL ACCESSIONS AND ATTACHMENTS THERETO OR USED IN CONNECTION WITH, NOW
OWNED OR HEREAFTER ACQUIRED, INCLUDING THE PROCEEDS THEREFROM WHEREVER LOCATED
AND AN ASSIGNMENT OF LIFE INSURANCE POLICY #0352046 VESTED IN THE NAME OF XXXX
X. XXXXXX ISSUED BY XXXXXXXXX XXXX FINANCIAL
(d) Guaranty Agreement (the "Guaranty Agreement") of even date with the
Note executed by Xxxx Xxxxxx, Xxxxx X. Xxxxxx AND ODD & ENDS, L.P.
("Guarantor");
WHEREAS, the Note, the Deed of Trust, the Assignment of Rents, the
Security Agreement, the Guaranty Agreement, and each and every other document
and instrument executed by Borrower or Guarantor for the benefit of Lender in
connection with the Loan (collectively, "Loan Documents") are incorporated by
this reference for all purposes to the same extent as if set out in this
Agreement; and
WHEREAS, Borrower and Lender desire to modify the Loan Documents.
NOW, THEREFORE, in consideration of the sum of Ten and NO/ 100 DOLLARS
($10.00) and other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, and in further consideration of
the terms, covenants and agreements contained in the Loan Documents and this
Agreement;
(1) Modification of Note. The Note is modified and amended as follows:
The unpaid balance of $197,777.78 due on the Note is due and payable in
installments and as herein provided, together with interest thereon from and
after NOVEMBER 16, 2000, until maturity at a varying rate per annum which is ONE
AND ONE-FOURTH percent (1.25%) per annum (hereinafter called the "Margin
Percentage"), above the Base Rate (hereinafter defined) established by Lender
from time to time (but in no event to exceed the Maximum Rate (hereinafter
defined), with adjustments in such varying rate to be made on the same date as
any change in the Base Rate and adjustments due to changes in the Maximum Rate
to be made on the effective date of any change in the Maximum Rate, payable as
it accrues on the
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maturity date of each of the installments described below, on the then unpaid
principal amount of the Note, as modified extended by this Agreement.
The unpaid balance due on the Note is due and payable in ELEVEN (11)
installments, each being in the amount of ONE THOUSAND ONE HUNDRED ELEVEN and
11/100 Dollars ($1,111.11), plus accrued interest each, and the final
installment being in the amount of the balance of principal and accrued interest
then due hereon. The first such installment is due and payable DECEMBER 16,
2000, and the remaining installments are due and payable in consecutive order on
the same day of each and every succeeding calendar month thereafter until all
sums called for hereunder have been paid in full.
Notwithstanding the payment schedule specified above, Lender may, at
its sole discretion and from time to time increase or decrease the payment
amounts specified above to a level sufficient to amortize the remaining balance
due on the Note at not more than its original rate of amortization for the
remaining term of this Agreement at the. interest rate then in effect by giving
prior written notice to Borrower, with such notice to be considered as given
when deposited in the United States mail, postage prepaid, addressed to Borrower
at the address specified above.]
For the purposes of this Agreement, "Base Rate" means that variable rate of
interest per annum published in the Southwest Edition of The Wall Street Journal
from time to time as the "prime rate". This rate is a composite or the highest
of any range of rates set by financial institutions selected by the Wall Street
Journal. These financial institutions set their respective "prime rates" as a
general reference rate of interest, taking into account such factors as they may
deem appropriate, it being understood that many of their commercial or other
loans are priced in relation to such rate, that it is not necessarily the lowest
or best rate actually charged to any customer and that they and Lender may make
various commercial or other loans at rates of interest having no relationship to
such rate. If for any reason the Base Rate, as defined above, ceases to exist or
to be readily available, then Lender may replace and substitute the Base Rate
and the Margin Percentage, as defined above, with a different index and margin
percentage that historically has yielded or that Lender believes prospectively
will yield an interest rate on this note comparable to the Base Rate plus the
Margin Percentage, as defined above.
All payments of interest will be computed on the per annum basis of a
year of 360 days and for the actual number of days elapsed unless such
calculation would result in a usurious rate, in which case interest will be
calculated on the per annum basis of a year of 365 or 366 days, as the case may
be.
All other terms and provisions of the Note, except as expressly
modified and extended herein, remain the same.
(2) Modification of Liability. All references to the Note in the Deed
of Trust and in all of the other Loan Documents are amended to refer to the Note
as amended and modified by this Agreement.
(3) Reaffirmation of Liability. Borrower reaffirms to Lender each of
the representations, warranties, covenants and agreements in the Loan Documents,
with the same force and effect as if each were separately stated in this
Agreement and made as of the date of this Agreement. Borrower ratifies, affirms,
reaffirms, acknowledges, confirms and agrees that the Loan Documents, as
modified by this Agreement, represent the valid, binding and enforceable
obligations of Borrower. Borrower acknowledges that there are no existing
claims, defenses (personal or otherwise), or rights of setoff whatsoever with
respect to any of the Loan Documents. Borrower acknowledges and represents that
no event has occurred and no condition exists which would constitute a default
under any of the Loan Documents, or this Agreement, either with or without
notice or lapse of time, or both. This Agreement and all of the Loan Documents
are in full force and effect so that nothing in this Agreement may be construed
as modifying any of the Loan Documents, other than as specifically and expressly
modified by this Agreement.
(4) No Release of Borrower. This Agreement modifies the Loan Documents,
and in no way releases or relinquishes the liens, security interests and rights
("Liens") securing payment of the Note, including, without limitation, the Liens
created by the Deed of Trust. The Liens are renewed, extended, ratifed and
confirmed by Borrower in all respects, except to the extent that the Liens have
previously been released of record by Lender.
(5) Borrower's Business Plan. Borrower has relied and is relying upon
Borrower's expertise and business plan in all matters in connection with the
Property, the Loan Documents and this Agreement. Borrower has not relied and is
not relying on Lender's expertise or business acumen in any matter in connection
with the Property, the Loan Documents or this Agreement. The relationship
between Borrower and Lender is solely that of borrower and lender, and Lender
has no fiduciary or other special relationship with Borrower. No term or
condition of the Loan Documents or this Agreement shall be construed so as to
deem the relationship between Borrower and Lender to be other than that of
borrower and lender.
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(6) Release of Lender. Borrower releases, acquits and forever
discharges Lender, Lender's agents, servants and employees and all persons,
natural or corporate, in privity with them or any of them, from any and all
claims or causes of action of any kind whatsoever, at common law, statutory or
otherwise, which Borrower has now or might have in the future, known or unknown,
now existing or that might arise hereafter, directly or indirectly attributable
to the Property, the Loan Documents, or from any transaction or matter in
connection with the Loan Documents, or the Property, it being intended to
release all claims of any kind or nature that Borrower might have against those
hereby released whether asserted or not.
(7) Further Assurances. Borrower agrees to perform any further acts and
to execute and deliver any further documents that may be reasonably necessary in
the opinion of Lender or Lender's counsel to carry out the provisions of this
Agreement.
(8) Entire Agreement. This Agreement sets forth the entire agreement of
Lender and Borrower with respect to the subject matter of this Agreement. There
are no oral conditions, representations or agreements affecting this Agreement.
No extension or variation in the covenants to be performed under this Agreement
or in the terms of this Agreement and no release or satisfaction of this
Agreement will be binding on any party unless the same is in writing and signed
by the party or an authorized officer of any corporate party. Notwithstanding
anything to the contrary in this Agreement or implied by this Agreement or in
any other instrument executed by Borrower or Lender or in any other action or
conduct undertaken by Borrower or by Lender on or before the date of this
Agreement, the agreements, covenants and provisions contained in this Agreement
constitute the only evidence of Lender's consent to modify the terms and
provisions of the Loan Documents in the manner set forth in this Agreement.
Accordingly, no express or implied consent to any further modifications of the
Loan or the Loan Documents, whether any such modifications involve any of the
matters contained in this Agreement or otherwise, may be inferred or implied
from Lender's execution of this Agreement unless evidenced by an express written
agreement executed by Lender. Further, Lender's execution of this Agreement is
not a waiver (either express or implied) of the requirement that any further
modification of the Loan or any of the Loan Documents requires the express
written approval of Lender, no such approval (either express or implied) having
been given as of the date of this Agreement.
(9) Borrower's Signature. Borrower, or if Borrower is an entity the
undersigned individual signing for and on behalf of Borrower, represents and
warrants that he or she is duly authorized and empowered to execute this
Agreement; that he or she has read this Agreement and fully understands this
Agreement to be a compromise, settlement and release of all claims, known or
unknown, present or future, which Borrower has or may have against the parties
released, arising out of the matters described; that he or she is of legal age
and legally competent to execute this Agreement, and that he or she does so of
his or her own free will and accord, without threat or duress, and without
reliance on any representation of any kind or character not expressly set forth
in this Agreement.
(10) Survival. All representations, warranties, covenants and
agreements of Lender and Borrower made in this Agreement survive the execution
and delivery of this Agreement, until such time as all of the obligations of the
signatories to this Agreement have lapsed in accordance with their respective
terms or have been discharged in full.
(11) Legal Fees and Expenses. All reasonable costs and expenses
incurred by Lender as a result of or in connection with the negotiation,
preparation, performance and enforcement of this Agreement and all transactions
pursuant to this Agreement will be paid by Borrower, including, without
limitation, Lender's attorneys fees and expenses.
(12) Parties Bound. This Agreement is binding on and inures to die
benefit of Lender, Borrower, and their respective heirs, executors,
administrators, legal representatives, successors and assigns.
(13) Governing Law. This Agreement is executed, delivered and
performable at Lender's banking quarters in Houston, Xxxxxx County, Texas, and
is to be construed under and in accordance with the laws of the State of Texas
and federal law.
(14) Conflicts. In the event of any conflict between any of the terns
and provisions of the Note or any of the other Loan Documents and the terms and
provisions of this Agreement, the terms and provisions of this Agreement
control.
(15) Executed Counterparts. This Agreement may be executed in two or
more counterparts, and it is not necessary that the signatures of all parties to
this Agreement be contained on any one counterpart of this Agreement. Each
counterpart of this Agreement is an original, all of which together constitute
one and the same instrument.
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THIS WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the dates of the acknowledgments set forth below, to be effective for all
purposes, however, as of the effective date if any, stated above.
BORROWER: FAITH WALK DESIGNS, INC. GRANTOR: XXXX XXXXXX
XXXXX X. XXXXXX
-------------------------------- ------------------------------
XXXX XXXXXXX XXXXXX, PRESIDENT XXXX XXXXXX
------------------------------
XXXXX X. XXXXXX
Address:
00000 XXXXXX XXXX, XXXXX X
XXXXXXX, XXXXX 00000
Loan Number:
21800034
LENDER:
STERLING BANK
By:
------------------------------
Name: XXXX X. XXXXX
Title: SENIOR VICE-PRESIDENT
THE STATE OF TEXAS )
COUNTY OF ___________ )
This instrument was acknowledged before me on the ______ day of
_______________, by _______________.
(SEAL)
_________________________________
Notary Public, State of Texas
My Commission Expires: Printed Name of Notary Public
_______________________ ______________________________
THE STATE OF TEXAS )
COUNTY OF ___________ )
This instrument was acknowledged before me on the ______ day of
_______________, by _______________.
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(SEAL)
_________________________________
Notary Public, State of Texas
My Commission Expires: Printed Name of Notary Public
_______________________ ______________________________
THE STATE OF TEXAS )
COUNTY OF ___________ )
This instrument was acknowledged before me on the _______________ day
of _____________, _____, by _______________________, ____________________ of
STERLING BANK, for and on behalf of said Texas banking corporation.
(SEAL)
_________________________________
Notary Public, State of Texas
My Commission Expires: Printed Name of Notary Public
_______________________ ______________________________
AFTER RECORDING RETURN TO:
Sterling Bank
X.0. Xxx 000000
Xxxxxxx, Xxxxx 00000-0000.
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