EXHIBIT 10.29
SECURITY AGREEMENT
THIS SECURITY AGREEMENT is entered into effective as of the 25th day of
September 2001, by and between Xxxxx Xxxxx, an individual with his principal
residence in the state of New York (hereinafter referred to as "Debtor"), and
Overhill Corporation, a Nevada Corporation with its principal place of business
at 0000 Xxxxxxxx, Xxxxx X, Xxxxxxx, Xxxxx 75001(hereinafter "OVH").
WHEREAS, Debtor and OVH have entered into that certain Promissory Note
of even date herewith, pursuant to which Debtor has exercised options to
purchase Two Hundred Seventy Six Thousand Five Hundred (276,500) shares of OVH
Common Stock. Payment of the purchase price of Two Hundred Seven Thousand Three
Hundred Seventy Five Dollars ($207,375) for said stock is to be made pursuant to
that certain Promissory Note of even date herewith.
WHEREAS, as of the date of execution of the Promissory Note and this
Security Agreement ("Effective Date"), Debtor shall obtain full and complete
ownership of aforementioned stock for all purposes relating thereto, including
all shareholder voting rights and rights to receive dividends.
WHEREAS, Debtor and OVH hereby agree recourse by OVH as to any
obligations of Debtor arising pursuant to the Promissory Note shall not be
recourse as to any shares of stock purchased and paid for, and shall be recourse
only as to those shares of stock for which options have been exercised, but not
paid for. OVH shall have no recourse as to shares purchased and paid for
pursuant to the terms herein described.
NOW THEREFORE, the undersigned Debtor hereby grants to OVH, a security
interest in any shares of OVH Common Stock purchased by Debtor with the proceeds
of that certain Promissory Note of even date herewith, subject to all applicable
conditions contained herein:
The undersigned Debtor hereby grants to the above named Secured Party a
Security Interest, under the Uniform Commercial Code, in the following described
property (hereinafter referred to as "Collateral") subject to all applicable
conditions contained herein and including all proceeds, products and accessions
thereto:
1. All shares of OVH Common Stock for which Debtor has exercised
options remitting payment therefore with the proceeds of that certain
Promissory Note of even date herewith, being Two Hundred Seventy Six
Thousand Five Hundred (276,500) shares of Overhill Corporation common
stock
DEBTOR WARRANTS, REPRESENTS, AND AGREES:
1. The Debtor will not allow the Collateral to be the subject of any
other security interest from and after the date of the execution hereof
without the express written consent of the Secured Party.
2. The Debtor has all requisite authority to execute this Agreement and
grant the security interest created hereby.
3. The execution hereof and performance hereunder by the Debtor shall
not constitute a breach or violation by Debtor under any other
agreement to which Debtor is a party.
4. Debtor has or shall acquire in a contemporaneous transaction
unencumbered title to the assets pledged hereunder. The security
interest created hereby shall be a FIRST priority lien position.
SECURED OBLIGATION:
This Security Interest will secure the payment of that certain
Promissory Note of even date herewith, executed by the Debtor as Maker thereof
and payable to the order of the Secured Party, for the payment of the aggregate
principal amount of Two Hundred Seven Thousand Three Hundred Seventy Five
Dollars ($207,375) plus interest, plus all other obligations of Debtor pursuant
to this Agreement, specifically including attorney's fees and collection costs,
subject to the terms and conditions as outlined therein.
PARTIAL RELEASE OF SECURITY INTEREST:
The purchase price for the Two Hundred Seventy Six Thousand Five
Hundred (276,500) shares of OVH common stock, as provided in the Stock Option
Agreement, is Two Hundred Seven Thousand Three Hundred Seventy Five Dollars
($207,375), constituting a price per share of ($0.75). Upon payment of any
amount made pursuant to the Note, which is credited toward the Principal Balance
thereof as a Principal Reduction. Debtor shall have been deemed to pay for one
share of OVH common stock for each ($0.75) so paid. In the event of default,
OVH's recourse, pursuant to this Security Agreement shall only be to the number
of shares for which payment has not been made, to be calculated by dividing the
Principal Amount outstanding under the Note by ($0.75) for each share.
EVENT OF DEFAULT:
The occurrence of any of the following events shall constitute a
Default:
1. Failure of Debtor, or of any co-maker, endorser, surety or guarantor
to pay when due, by acceleration or otherwise, any amount payable under
the Promissory Note;
2. Failure to perform any agreement of Debtor contained herein as
relating to this Agreement, or that certain Promissory Note of even
date herewith;
3. Debtor becomes insolvent or unable to pay his debts as they mature
or any proceeding is commenced by or against Debtor alleging that he is
insolvent or unable to pay his debts as they mature;
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Whenever a Default shall exist, OVH may, at its option but only after
providing Debtor ten (10) days written notice, declare all or any part of the
unpaid balance under the Promissory Note immediately due and payable.
If any notification of intended disposition of any of Collateral is
required by law, such notification shall be deemed reasonably and properly given
if mailed at least ten (10) days before such disposition, postage prepaid,
addressed to the Debtor at the address shown on the first page of this Security
Agreement.
OVH shall have the authority, but shall not be obligated to:
1. Place upon the collateral or OVH's books and records relating to the
shares covered by OVH's security interest granted hereby a notation or
legend stating that such shares are subject to OVH's security interest
held by OVH.
2. After any default and upon ten (10) days written notice, and take
possession of the Collateral for the satisfaction of the outstanding
obligations under the Promissory Note.
3. After any default and upon ten (10) days written notice, in the name
of the Debtor or otherwise, to demand, collect, receive and receipt
for, compound, compromise, settle and give acquittance for, and
prosecute and discontinue any suits or proceedings in respect of any or
all of the Collateral.
4. After any default and upon ten (10) days written notice, take any
action which OVH may deem necessary or desirable in order to realize on
the Collateral, including, without limitation, the power to perform any
contract, to endorse in the name of Debtor any checks, drafts, stock
powers, notes or other instruments or documents necessary to sell
transfer, convey or dispose of the Collateral.
GENERAL TERMS AND CONDITIONS:
1. Debtor will keep accurate books, records and accounts with respect
to the Collateral and will make the same available to the Secured Party
at its request for examination and inspection; and will make and render
to the Secured Party such reports, accountings and statements as the
Secured Party from time to time may request with respect to the
Collateral.
2. Debtor has or will acquire title to and will at all times keep the
Collateral free of all liens and encumbrances, except the Security
Interest created hereby Debtor has full power and authority to execute
this Security Agreement, to perform Debtor's obligations hereunder, and
to subject the Collateral to the Security interest created hereby.
3. Debtor shall pay and discharge all taxes assessed or levied on the
Collateral.
4. Debtor will at any time or times hereafter execute such financing
statements and other instruments and perform such acts as OVH may
request to establish and maintain a valid security interest in the
Collateral, and will pay all costs of filing and recording, or, when
legally permissible, Debtor authorizes OVH to execute and file on
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Debtor's behalf a financing statement or statements in those public
offices deemed necessary by OVH to protect its security interest in the
Collateral. Debtor shall pay all expenses, and upon request, take any
action reasonably deemed advisable by Secured Party to preserve the
Collateral or to establish, determine priority of, perfect, continue
perfected, terminate and/or enforce the Secured Party's Interest in it
or rights under this Agreement.
5. Upon Default by Debtor in any of the preceding warranties,
representations and agreements, OVH at its option may pay and discharge
any taxes, liens and encumbrances on the Collateral. All sums so
advanced or paid by OVH shaft be payable to Debtor on demand with
interest at the rate allowed by law and shall be a part of the
outstanding obligations under the Promissory Note.
In case any one or more of the provisions of this Agreement shall for
any reason be held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, and unenforceability shall not affect any other
provision of this Agreement
The singular when used herein shall include the plural and the meaning
of words shall apply to masculine and feminine as is appropriate. The internal
laws of the State of Nevada as pre-empted by federal law govern the validity,
construction, and enforcement of this Agreement. All terms not otherwise defined
have the meanings assigned to them by the Uniform Commercial Code. Invalidity or
unenforceability of any provision of this agreement shall not affect the
validity or enforceability of any other provisions.
A carbon, photographic or other reproduction of this Security Agreement
is sufficient as a financing statement, except where prohibited by law.
This Security Agreement or any other similar document may be filed by
OVH with any State or County agencies where the filing of security instruments
is allowed.
Upon actual receipt of the final payment of the Secured Indebtedness,
OVH hereunder agrees execute any written memorandum as required by the Debtor
hereunder to release and extinguish the security interest created hereby.
EXECUTED effective as of the day first above written.
Debtor
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Xxxxx Xxxxx
Secured Party:
Overhill Corporation
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By: Xxxxx Xxxxx
Its: President
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XXXXX XX XXXXX ss.
ss.
COUNTY OF DALLAS ss.
On this ____ day of ___________, 2001, before me, the undersigned
notary public, personally appeared Xxxxx Xxxxx, Debtor herein, who is an
individual, known to me or proven to me to be the person whose name is
subscribed to the foregoing instrument and acknowledged to me that he executed
the same for the purposes and consideration therein expressed.
SUBSCRIBED AND SWORN to before me on the date first written above.
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Notary Public in and for the State of ____________
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STATE OF _____________ ss.
ss.
COUNTY OF_____________ ss.
On this ____ day of __________________, 2001, before me, the
undersigned notary public, personally appeared Xxxxx Xxxxx, President of
Overhill Corporation, Secured Party herein, known to me, or proven to me to be
the person whose names is subscribed to the foregoing instrument and he
acknowledged to me that he executed the same for the purposes and consideration
therein expressed.
SUBSCRIBED AND SWORN to before me on the date first written above.
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Notary public in and for the State of ____________
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