SUBORDINATED PROMISSORY NOTE PAYOFF AGREEMENT
THIS
PAYOFF AGREEMENT
(the
“Agreement”), dated effective as of the 21st
day of
April, 2008, by and among DECORIZE, INC. (“Borrower”) and XXX X. XXXXX
(“Creditor”).
WHEREAS,
on or
about January 30, 2004, Borrower executed and delivered to Creditor a
Subordinated Promissory Note (the “Note”) in the principal sum of Fifty-Six
Thousand Four Hundred Fifty-One Dollars ($56,451.00);
WHEREAS,
the
Note matured on December 31, 2004 and, pursuant to the terms of the Note, the
Company is indebted to the Creditor in the principal amount of $56,451.00 plus
accrued unpaid interest (the “Outstanding Debt”);
WHEREAS,
in
connection with certain financing transactions and debt modifications now being
contemplated by the Company, the Company has requested the Creditor to accept,
and the Creditor has agreed to accept, the Payoff Consideration (as defined
below) in full and complete satisfaction of the Outstanding Debt, on the terms
and subject to the conditions set forth in this Agreement.
NOW,
THEREFORE,
in
consideration of the payment of the Payoff Consideration, the terms and
conditions contained in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereby covenant and agree as follows:
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1.
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Payoff.
On, or prior to, April 30, 2008 (the “Payment Date”), the Borrower shall
pay Creditor Twenty Thousand Dollars ($20,000.00) (the “Payoff
Consideration”) in full satisfaction of the Outstanding
Debt.
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2.
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Note
Termination.
Upon delivery of the Payoff Consideration, the Creditor shall deliver
to
the Borrower the executed original Note (or, if not available, a
lost note
affidavit) and the Note shall be terminated effective as of the Payment
Date, and the parties shall have no further obligations with respect
to
the Note or liabilities related thereto. Any further rights, interests
or
claims related to the Note are waived and released effective upon
receipt
by Creditor of the Payoff
Consideration.
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3.
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Representations
and Warranties of the Borrower.
The Borrower hereby represents and warrants to the Creditor that
on and as
of the date hereof:
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a.
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The
Borrower has been duly incorporated and is validly existing and in
good
standing under the laws of Delaware, and has full power and authority
to
enter into and perform its obligations under this
Agreement.
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b.
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The
Borrower is not in violation of its certificate of incorporation
or bylaws
or in default under any agreement, indenture, document or instrument,
the
effect of which or default would have a material adverse effect on
the
ability of the Borrower to perform its obligations under this
Agreement.
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c.
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No
authorization, consent or approval of, or filing with, any court
or any
public body or authority and no consent or approval of any third
party or
parties is necessary on the part of the Borrower for the execution,
delivery and performance of this Agreement, other than those consents,
approvals or filings, if any, which have already been
obtained.
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4.
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Representations
and Warranties of the Creditor.
The Creditor hereby represents and warrants to the Borrower as
follows:
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a.
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The
Creditor has full power and authority to enter into and perform its
obligations under this Agreement.
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b.
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This
Agreement has been duly authorized and validly executed by the Creditor.
This Agreement constitutes a legal, valid, binding and enforceable
agreement of the Creditor.
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c.
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The
Creditor has not transferred the Note or any part of its interest
in the
Note, and the Creditor is the holder of the Note free and clear of
all
liens, pledges and security
interests.
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5.
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Indemnification.
The Borrower agrees to indemnify and hold harmless the Creditor from
and
against any and all actions, causes of action, suits, losses, liabilities
and damages, and all expenses in connection therewith, as incurred,
including without limitation, reasonable attorneys’ fees and
disbursements, incurred in the investigation and defense of claims
and
actions, incurred by the Creditor as a result of any matter arising
out of
or relating to this Agreement. The Creditor agrees to indemnify and
hold
harmless the Borrower from and against any and all actions, causes
of
action, suits losses, liabilities and damages, and all expenses in
connection therewith, as incurred, including without limitation,
reasonable attorneys’ fees and disbursements, incurred in the
investigation and defense of claims and actions incurred by the Borrower
as a result of any matter arising out of or relating to this
Agreement.
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6.
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Counterparts.
This Agreement may be executed in counterparts, each of which when
so
executed shall be deemed an original, but all such counterparts together
shall constitute but one and the same
instrument.
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7.
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General
Provisions.
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a.
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Headings.
The heading, captions and arrangements used in this agreement are,
unless
specified otherwise, for convenience only and shall not be deemed
to
limit, amplify or modify the terms of the Agreement, nor effect the
meaning hereof.
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b.
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Survival.
All agreements, covenants, undertakings, representations and warranties
made in this Agreement shall survive the execution
hereof.
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c.
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Governing
Law. This Agreement is being executed and delivered and is intended
to be
performed in the State of Missouri, and the substantive laws of such
state
shall govern the validity, construction, enforcement and interpretation
of
the Agreement.
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d.
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Attorney’s
Fees and Costs. In the event that any dispute arises between the
parties
hereto relating to the interpretation, enforcement or performance
of this
Agreement, and such matter is referred to an attorney for resolution,
the
prevailing party shall be entitled to collect from the losing party
any
attorney’s fees together with any costs and expenses in the event of
litigation.
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e.
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Assignment.
This Agreement shall be binding upon and inure to the benefit of
each
party hereto, and its respective successors and
assigns.
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8.
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Final
Agreement.
By signing this document each party represents and agrees that: (a)
this
document represents the final agreement between the parties with
respect
to the subject matter hereof, (b) this document supersedes any term
sheet
or other written outline of the terms and conditions relating to
the
subject matter hereof, unless such term sheet or other written outline
of
terms and conditions expressly provides to the contrary, (c) there
are no
unwritten oral agreements between the parties, and (d) this document
may
not be contradicted by evidence of any prior, contemporaneous, or
subsequent oral agreements or understandings of the
parties.
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This
Agreement is executed as of the date stated at the beginning of this
Agreement.
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XXX
X. XXXXX
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(“Borrower”)
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(“Creditor”)
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By:
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/s/
Xxxxx Xxxxxxx
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By:
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/s/
Xxx X. Xxxxx
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Name:
Xxx X. Xxxxx
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Title:
President
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