TERM PAYMENT AGREEMENT
Gross Amount: $1,760,993.00
Agreement Date: 10/16/00
Mossimo, Inc. ("Mossimo") located at 0000 Xxxxxxxx, Xxxxx Xxxxxx, XX 00000
promises to pay to the order of Xxxxx Xxxxx Enterprises, Inc. ("Xxxxx") c/o
International Management, Inc. located at IMG Center, 0000 Xxxx 0xx Xxxxxx,
Xxxxx 000, Xxxxxxxxx. OH 44114 the sum of $1,760,993.00 in lawful money of the
United States of America to settle and release any and all claims, whether known
or unknown, contingent, liquidated or disputed, secured or unsecured, it holds
or asserts against Mossimo, its officers, directors or agents.
The amount of $1,760,993.00 shall be payable as follows:
The amount of $325,000.00 payable upon receipt of signed agreement. The balance
of $1,435,993.00 will accrue interest at 12% per annum beginning 4/15/01 and be
paid in 12 equal monthly installments of $127,586.24 beginning 4/15/01 and
continuing on the 15th of each month thereafter until 3/15/02.
In the event Mossimo fails to make a payment as set forth above, Xxxxx shall
provide written notice of the default to Mossimo at the address stated above,
and Mossimo shall have fifteen. (15) days from the date of the notice of default
to cure the default. If the default is not cured within fifteen (15) days, then
Xxxxx may declare this Agreement and all amounts payable under this Agreement to
be forthwith due and payable, whereupon this Agreement, and. the entire unpaid
balance shall become due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by Mossimo.
Except as set forth herein, Xxxxx expressly releases, remits, acquits and
forever discharges Mossimo, its directors, officers, employees, or any of them
of from any and all claims, whether known or unknown, contingent, liquidated or
disputed, secured or unsecured, it holds or asserts. Xxxxx and Mossimo agree
that the agreement between them dated January 1, 2000, shall be terminated
effective November 1, 2000, and all the parties' obligations are set forth in
this Agreement.
Except as set forth herein, Xxxxxxx expressly releases, remits, acquits and
forever discharges Xxxxx, his heirs, successors, assigns or any of them from any
and all claims whether known or unknown, contingent, liquidated or disputed,
secured or unsecured, it bold or asserts.
Xxxxxxx authorizes any attorney-at-law to appear for Mossimo in any court of
record after this Agreement becomes due by declaration or otherwise and waive
the issuing and service of process and confess judgment against Xxxxxxx in favor
of Xxxxx for the amount then appearing due, together with costs of suit and
thereupon to waive all errors and all rights of appeal and stay of execution.
Xxxxxxx agrees that Duval's attorney may confess judgment pursuant to the
foregoing warrant of attorney. Xxxxxxx further agrees that the attorney
confessing judgment
pursuant to the foregoing warrant of attorney may receive a legal fee or other
compensation from Mossimo.
No failure on the part of Xxxxx to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by Law.
THE COMPANY AND THE PAYEE (BY ITS ACCEPTANCE HEREOF) EACH WAIVE ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT OR OTHERWISE, BETWEEN THE COMPANY AND THE PAYEE ARISING OUT OF THIS
AGREEMENT.
The undersigned acknowledges that it has been advised by legal counsel and is
familiar with the provisions of California Civil Code section 1542, which
follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR"
THE UNDERSIGNED, BEING AWARE OF SUCH CODE SECTION, HEREBY EXPRESSLY WAIVES ANY
RIGHTS IT MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW
PRINCIPLES OR SIMILAR EFFECT.
WARNING - BY SIGNING THIS AGREEMENT, YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
The undersigned represents and warrants that this agreement has been duly
executed, such execution was duly authorized and that this agreement constitutes
a legal, valid and binding obligation of this undersigned. The undersigned
hereby represents and warrant, that it has not assigned any or all of the claims
to any third party.
Accepted and Agreed: Xxxxx Xxxxx Enterprises, Inc.
Authorized By
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Signature: /s/ Xxxxx Xxxxx
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Title:
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Date: 12-11-00
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Accepted and Agreed: Mossimo, Inc.
Authorized By: XXXXXXX XXXXXXXXX
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Signature: /s/ Xxxxxxx Xxxxxxxxx
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Title: PRES. CEO
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Date: 11-14-00
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