AMENDMENT TO SECURITY AGREEMENT
EXHIBIT
10.90
AMENDMENT
TO SECURITY AGREEMENT
THIS
AMENDMENT TO SECURITY AGREEMENT ("Amendment") is made as of this 6th
day of February, 2008, by and between CMARK INTERNATIONAL, INC. (f/k/a Commercial Marketing Corporation and Commercial
Marketing Corp.), a South Carolina corporation (the "Borrower") and STERLING MANAGEMENT GROUP, INC.
(f/k/a Sterling Management, LLC or Sterling Management, Inc.),
a Minnesota corporation (the "Secured Party").
RECITALS:
WHEREAS, the Secured Party and the Borrower are
parties to that certain Promissory Note dated as of August 25, 2005 under which
the Secured Party agreed to extend a loan to Borrower in the original principal
amount of $750,000 (the "Note"); and
WHEREAS, as a condition precedent to the Note,
Secured Party required Borrower to execute and deliver to Secured Party that
certain Security Agreement made effective as of August 25, 2005 (the "Security
Agreement"); and
WHEREAS, Borrower and Secured Party desire to
amend the Security Agreement, subject to the terms and conditions set forth
below.
NOW, THEREFORE, in consideration of the
premises, the mutual covenants and agreements hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
Section
1.
Defined Terms. The following terms
are hereby amended and modified in their entirety
to read as follows:
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(a)
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"Secured
Party": "Secured Party"
shall mean Sterling Management Group, Inc., a Minnesota corporation, and
its affiliates, designates and successors, and including without
limitation, Xxxxx and Xxxxxx
XxXxxxx
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(b)
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"Obligation”: "Obligation"
shall mean all of the interest, principal and other amounts payable under
that certain promissory note dated August 25, 2005, payable by Borrower to
Secured Party in the original principal amount of $750,000, bearing
interest at 18% per annum, if timely paid, and obligations under various
promissory notes issued by Borrower to Xxxxx and Xxxxxx
XxXxxxxx.
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Section
2. Borrower
Covenants and Acknowledgments. By execution hereof,
Borrower acknowledges
and agrees:
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(a)
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Financial
Account Consent Agreement. Borrower
hereby expressly
acknowledges and agrees that the Financial Account Consent Agreement dated
as of December 18, 2007 by and between Borrower, Secured Party and
Community Resource Bank extends to all Obligations, as
amended.
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(b)
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Authorization: Borrower hereby
expressly acknowledges and agrees that (i) this Amendment has been duly
authorized by Borrower, (ii) the signature appearing below is the
authentic signature of an officer of Borrower who has been duly elected to
and now holds the office opposite his/her name, and (iii) this Amendment
constitutes the legal and binding obligation of the Borrower, enforceable
according to its terms by Secured Party free of any claim, defense or
offset.
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(c)
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Financing
Statement: Borrower
consents to the amendment and continuation of any and all financing
statements reflecting the agreements contained
herein.
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Section
3. Binding Nature of Documents. Borrower and
Secured Party acknowledge and agree that the terms, conditions and provisions of
the Note, Security Agreement, and any and all other documents executed and
delivered by it in connection therewith (collectively the "Loan Documents") are
fully binding and enforceable agreements, and are not subject to any defense,
counterclaim, set off or other claim of any kind or nature. Borrower hereby
reaffirms and restates its agreements, duties, obligations and liability under
the Loan Documents. Borrower acknowledges that the delivery of this Amendment
and the representations, acknowledgments, covenants and agreements contained in
this Amendment is a specific condition to Secured Party's agreement to extend
the Note.
Section 4. Scope
of
Amendment. Except as amended
hereby the terms, conditions and provisions
of the Loan Documents shall remain unchanged and shall be of full force and
effect.
Section
5. Counterparts. This
Amendment may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all of which shall constitute one and the same
instrument. Any executed counterpart of this Amendment delivered by facsimile or
other electronic transmission to a party hereto shall constitute an original
counterpart of this Amendment.
Section
5. Recitals. The recitals
to this Amendment are hereby incorporated into and made a part of
this Amendment as if fully set forth herein.
IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed and
delivered by their duly authorized representatives as of the day and year first
set forth above.
| BORROWER: | |||
| CMARK INTERNATIONAL, INC., | |||
| a South-Carolina corporation | |||
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By:
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/s/ Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | ||
| Its: | President | ||
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| SECURED PARTY: | |||
| STERLING MANAGEMENT GROUP, INC., | |||
| a Minnesota corporation | |||
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By:
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/s/ Authorized Person | |
| Name: | Authorized Person | ||
| Its: | Representative | ||
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PROMISSORY NOTE
ACKNOWLEDGEMENT
THIS PROMISSORY NOTE ACKNOWLEDGEMENT
("Acknowledgement') is made as of this 6th
day of February, 2008, by and between CMARK INTERNATIONAL, INC, (f/k/a
Commercial Marketing Corp.), a South Carolina
corporation ("Borrower") and STERLING MANAGEMENT GROUP, INC., (f/k/a Sterling Management, LLC and Sterling
Management, Inc.), a Minnesota corporation ("Lender").
WHEREAS, the Borrower has executed and
delivered to Lender its Promissory Note dated as of August 25, 2005 in the
original principal amount of $750,000 (the "Note");
WHEREAS, Borrower and Lender have changed their
names and desire to acknowledge their respective name changes;
NOW, THEREFORE, in consideration of the
premises, the mutual covenants and agreements hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree and acknowledge as follows:
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(a)
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"Sterling
Management, LLC" or "Sterling Management, Inc." shall be deleted and
replaced with "Sterling Management Group, Inc.", a Minnesota corporation,
and its affiliates, designees and successors, and including without
limitation, Xxxxx and Xxxxxx XxXxxxxx ("Sterling")". All subsequent
references in the Note to "Sterling Management, LLC" or "Sterling
Management, Inc." are hereby amended to read
"Sterling".
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(b)
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"Commercial
Marketing Corp." shall be deleted and replaced with "CMARK International,
Inc." All subsequent references in the Note to "Commercial Marketing
Corp." are hereby amended to read
"CMARK".
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(c)
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The
final maturity date of the Note shall be extended to June 30, 2008 (the
"Maturity Date") at which time all unpaid principal and accrued interest
shall be due and payable.
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(d)
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The
Note shall bear interest at the rate of sixteen percent (16%) per annum
on
the unpaid principal balance thereof and all accrued but unpaid
interest.
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(e)
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Upon
execution hereof, Borrower shall make a payment to Lender in the amount of
Twenty-five Thousand Dollars ($25,000), which payment shall be applied to
principal.
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(f)
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Commencing
on February 29, 2008, Borrower shall make monthly payments of Nine
Thousand and No/100 Dollars ($9,000.00) and continuing thereafter on the
same calendar day of each succeeding month until the Maturity Date at
which time a final payment of all unpaid principal and accrued interest
shall be due. All payments shall be applied first to accrued interest and
the balance remaining, if any, to unpaid
principal.
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(g)
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Except
as amended hereby, the terms, conditions and provisions of the Note shall
remain unchanged and shall be of full force and
effect.
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IN WITNESS WHEREOF, the parties hereto have
caused this Acknowledgement to be executed and delivered as of the day and year
first set forth above.
| BORROWER: | |||
| CMARK INTERNATIONAL, INC., | |||
| a South Carolina corporation | |||
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By:
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/s/ Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | ||
| Its: | President | ||
| LENDER: | |||
| STERLING MANAGEMENT GROUP, INC., | |||
| a Minnesota corporation | |||
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By:
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/s/ Authorized Person | |
| Name: | Authorized Person | ||
| Its: | Representative | ||
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AMENDMENT
TO CONTINUING GUARANTY & WAIVER
THIS AMENDMENT,TO CONTINUING GUARANTY & WAIVER
("Amendment") is made as of this 6th day
of February, 2008, by and between,
Sterling Management Group, Inc. and XXXXXXX X. XXXXX, XX., an individual
residing in the State of South Carolina.
RECITALS:
WHEREAS, CMARK International,
Inc. (Vida Commercial Marketing Corporation and Commercial Marketing Corp.), a
South Carolina corporation (the "Company") and Sterling Management Group, Inc.
(f/k/a Sterling Management, LLC) a Minnesota corporation (the "Lender") are
parties to that certain Promissory Note dated as of August 25, 2005 under which
the Lender agreed to extend a loan to Company in the original principal amount
of $750,000 (the "Note"); and
WHEREAS, as a condition precedent to the Note,
Lender required Guarantor to execute and deliver to Lender his Continuing
Guaranty & Waiver dated as of August 25, 2005 (the "Guaranty");
and
WHEREAS, Company and Lender desire to amend the
Guaranty, subject to the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the
premises, the mutual covenants and agreements hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
Section
1. Defined
Terms. The following terms
are hereby amended and modified in their entirety
to read as follows:
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(a)
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"Sterling
Management, LLC" Sterling
Management, LLC shall be deleted and
replaced with "Sterling Management Group, Inc.", a Minnesota corporation,
and its affiliates, designees and successors, and including without
limitation, Xxxxx and Xxxxxx XxXxxxxx ("Sterling")". All subsequent
references in the Guaranty to "Sterling Management, LLC" are hereby
amended to read "Sterling".
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(b)
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"Commercial
Marketing Corp.": All references
in the Guaranty to "Commercial Marketing, Corp." are hereby amended to
read "CMark International".
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(c)
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"Communications
Network": All
references in the Guaranty to "Communications
Network" are hereby amended to read
"Sterling".
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Section
2. Guarantor
Covenants and Acknowledgements By
execution hereof, Guarantor acknowledges and agrees:
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(a)
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Amendment to
Security Agreement. Guarantor
hereby expressly acknowledges that the Security Agreement between Company
and Lender dated as of August 25, 2005, is being amended by that certain
Amendment to Security Agreement executed
contemporaneously herein to include the Company's obligations to Xxxxx and
Xxxxxx XxXxxxxx as secured
Obligations.
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(b)
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Guaranty
of XxXxxxxx
Obligations. Guarantor
hereby expressly acknowledges and agrees that this Amendment to Continuing
Guaranty & Waiver results in his unequivocal guaranty of the Company's
obligations to Xxxxx and Xxxxxx
XxXxxxxx.
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(c)
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Authority
and Enforceability. Guarantor
acknowledges and agrees (i) he has due capacity to execute this Amendment
and (ii) this Amendment constitutes the legal and binding obligation of
Guarantor, enforceable according to its terms by Lender free of any claim,
defense or offset.
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Section
2. Binding
Nature of Documents. Guarantor
acknowledges and agrees that the terms, conditions and provisions of the Note,
Security Agreement, Continuing Guaranty & Waiver (each as amended) and any
and all other documents executed and delivered in connection therewith
(collectively the "Loan Documents") are fully binding and enforceable
agreements, and are not subject to any defense, counterclaim, set off or other
claim of any kind or nature. Guarantor hereby reaffirms and restates his
agreements, duties, obligations and liability under the Loan Documents.
Guarantor acknowledges that the delivery of this Amendment and the
representations acknowledgments, covenants and agreements contained in this
Amendment is a specific condition to Lender's agreement to extend the
Note.
Section
3. Scope of
Amendment. Except as amended
hereby, the terms, conditions and provisions
of the Guaranty shall remain unchanged and shall be of full force and
effect.
Section
4. Recitals. The recitals
to this Amendment are hereby incorporated into and made a part of
this Amendment as if fully set forth herein.
IN WITNESS WHEREOF, Guarantor has caused this
Amendment to be executed and delivered as of the day and year first set forth
above.
| GUARANTOR: | |||
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By:
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/s/ Xxxxxxx X. Xxxxx, Xx. | |
| Name: Xxxxxxx X. Xxxxx, Xx. | |||
| Xxxxxxx: | |||
0
Xxxxxxxx
0, 0000
XXXXX
International, Inc. – Commercial Marketing
c/o Xxxx
Xxxxxxxxxxxxx and Xxxxxxx X. Xxxxx
0000 Xxx
Xxxxx Xxxx, Xxxxx 0
Xxxxxxxx,
Xxxxx Xxxxxxxx 00000
Gentlemen:
The
purpose of this letter is to amend the terms outlined in our prior extension
letter dated September 21, 2007 ("2007 Extension Letter") under with Sterling
Management Group, Inc. (f/k/a Sterling Management, Inc.) ("Sterling') extended
the maturity date of the Promissory Note dated August 25, 2005 due from CMARK
International, Inc. (f/k/a Commercial Marketing Corp.) ("CMARK") (the
"Note").
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1.
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CMARK
will execute and deliver to Sterling the Promissory Note Acknowledgement,
a true and correct copy of which is attached as Exhibit
A.
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2.
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CMARK
will execute and deliver to Sterling the Amendment to Security Agreement,
a true and
correct copy of which is attached as Exhibit
B.
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3.
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CMARK
will execute and deliver to Sterling the Amendment to Continuing Guaranty
& Waiver, a true and correct copy of which is attached as Exhibit
C.
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4.
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CMARK
will execute and deliver to Sterling the Amendment to Financial Account
Control Agreement,
a true and correct copy of which is attached as Exhibit
D.
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5.
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CMARK
will take such actions as are requested by Sterling or are necessary to
ensure that all extensions of credit or collateral by or on behalf of
Xxxxx and Xxxxxx XxXxxxxxx are used to support only the specific surety
bonds for the specific jobs for which such extensions of credit or
collateral are requested.
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6.
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Upon
execution hereof, CMARK shall deliver to Sterling a payment in the amount
of Twenty-five Thousand
Dollars ($25,000), which payment shall be applied to principal due under
the Note.
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7.
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CMARK
shall pay Sterling's costs and expenses in connection with the Note
extension, including but not limited to any and all legal fees and costs.
Any amount not paid by CMARK within ten (10) days of transmittal of an
invoice for same shall be added as principal to the Note on the date
payment from CMARK is due.
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The terms
set forth above are agreed to by:
| CMARK INTERNATIONAL, INC., | STERLING MANAGEMENT GROUP, INC., | ||||
| a South Carolina corporation | a Minnesota corporation | ||||
| By: |
/s/ Xxxxxxx X. Xxxxx
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By: |
/s/
Authorized Person
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| Name: |
Xxxxxxx
X. Xxxxx
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Name: |
Authorized
Person
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| Its: |
President
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Its: |
Representative
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AMENDMENT TO FINANCIAL
ACCOUNT CONSENT AGREEMENT
THIS AMENDMENT TO FINANCIAL
ACCOUNT CONSENT AGREEMENT ("Amendment") is made as of this 6th
day of February, 2008, by
and between COMMUNITY
RESOURCE BANK (the "Financial
Institution") CMARK INTERNATIONAL, INC., a South
Carolina corporation (the "Company''), and STERLING MANAGEMENT GROUP, INC. (f/k/a Sterling Management, LLC or Sterling Management,
Inc.), a Minnesota corporation (the "Secured Party").
RECITALS:
WHEREAS, the parties have executed and
delivered that certain Financial Account Consent Agreement dated as of December
18, 2007 (the "FACA"), which set forth certain terms and conditions with respect
to Financial Accounts. All terms not defined herein shall have the meaning
ascribed thereto in the FACA; and
WHEREAS, the parties desire to amend the FACA,
subject to the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the
premises, the mutual covenants and agreements hereinafter set forth, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
Section
1. Defined
Terms. The following term is
hereby amended and modified in its entirety to read
as follows:
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"Secured Party": "Secured Party"
shall mean Sterling Management Group, Inc., a Minnesota corporation, and
its affiliates, designees and successors, and including without
limitation, Xxxxx and Xxxxxx
XxXxxxxx.
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Section
2. Default
Under Note. In the event
Sterling is required to fully exercise its right under the FACA to collect
amounts due pursuant to that certain Promissory Note from Company to Sterling
dated August 25, 2005, in the original principal amount of $750,000 (the
"Note"), the Company shall pay to Sterling a penalty payment, which penalty
payment shall be equal to three percent (3%) of the unpaid principal balance due
and owing pursuant the Note at the time of exercise under the FACA.
Section
3. Scope of
Amendment. Except as amended
hereby, the terms, conditions and provisions
of the FACA shall remain unchanged and shall be of full force and
effect.
Section
4. Counterparts. This
Amendment may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same instrument. Any executed counterpart of this Amendment delivered by
facsimile or other electronic
transmission to a party hereto shall constitute an original counterpart of this
Amendment.
Section
5. Recitals. The recitals
to this Amendment are hereby incorporated into and made a part of
this Amendment as if fully set forth herein.
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IN WITNESS WHEREOF, the parties have caused
this Amendment to be executed and delivered by their duly authorized
representatives as of the day and year first set forth above.
| FINANCIAL INSTITUTION: | |||
| COMMUNITY RESOURCE BANK | |||
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By:
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/s/ Authorized Person | |
| Name: | Authorized Person | ||
| Its: | Representative | ||
| COMPANY: | |||
| CMARK INTERNATIONAL, INC., | |||
| a South Carolina corporation | |||
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By:
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/s/ Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | ||
| Its: | President | ||
| SECURED PARTY: | |||
| STERLING MANAGEMENT GROUP, INC., | |||
| a Minnesota corporation | |||
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By:
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/s/ Authorized Person | |
| Name: | Authorized Person | ||
| Its: | Representative | ||
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