1
EXHIBIT 10.6
When recorded, return to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxxx Xxxxxxxx & Xxxxxx
5400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
FIFTH AMENDMENT AND MODIFICATION AGREEMENT
This FIFTH AMENDMENT AND MODIFICATION AGREEMENT ("Agreement") is made
as of the 30th day of September, 1996, by and among NATIONSBANK OF TEXAS, N.A.
("Lender"), a national banking association, CELEBRITY, INC. ("Borrower"), a
Texas corporation, and the hereinafter described Trustee.
W I T N E S S E T H :
WHEREAS, Lender and Borrower have entered into various documents
relating to loans (collectively, the "Loans") made by Lender to Borrower and
evidenced by the following promissory notes: (i) that certain Promissory Note
in the original principal amount of $1,800,000.00, dated April 22, 1993,
executed by Borrower and payable to the order of Tyler Bank & Trust, N.A., and
assigned and endorsed to Lender (as heretofore modified, "Note A"); (ii) that
certain Promissory Note in the original principal amount of $2,290,409.98,
dated March 21, 1994, executed by Borrower and payable to the order of Lender
(as heretofore modified, "Note B"); (iii) that certain Promissory Note in the
original principal amount of $1,800,000.00, dated March 21, 1994, executed by
Borrower and payable to the order of Lender (as heretofore modified, "Note C");
and (iv) that certain Promissory Note in the original principal amount of
$455,550.00, dated February 9, 1996, executed by Borrower and payable to the
order of Lender (as heretofore modified, "Note D") (Note A, Note B, Note C and
Note D are collectively referred to as the "Notes," and the Notes, together
with all other agreements, documents and instruments relating thereto or now or
hereafter executed in connection therewith or evidencing, securing or relating
to the obligations of Borrower to Lender, as the same may be amended or
modified from time to time, are hereinafter referred to as the "Loan
Documents").
WHEREAS, Lender and Borrower executed that certain Loan Agreement
dated March 21, 1994, by and between Borrower and Lender, as amended by that
certain Amendment to Loan Agreement dated December 21, 1994, that certain
Second Amendment to Loan Agreement dated March 20, 1995, that certain Third
Amendment to Loan Agreement dated February 9, 1996, and that certain Fourth
Amendment and Modification Agreement dated as of May 15, 1996 (as amended, the
"Loan Agreement").
WHEREAS, the Borrower executed and delivered those certain Deeds of
Trust described on Exhibit "A" hereto (as same may have been heretofore
amended, the "Deeds of Trust") to Xxxxxxx X. Xxxx as Trustee (the "Trustee"),
covering the real property described in Exhibit "B"
MODIFICATION AGREEMENT - Page 1
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attached hereto and incorporated herein for all purposes, together with all
improvements, appurtenances, other properties (whether real or personal),
rights and interests described in and encumbered by the Deeds of Trust
(collectively, the "Property"), to secure the payment of the Notes and
performance by Borrower of the other obligations set forth in the Loan
Documents; and
WHEREAS, the Borrower caused to be issued by the title companies
("Title Companies") described on Exhibit "C" hereto those certain Mortgagee
Policies of Title Insurance described on Exhibit "C" hereto (collectively, the
"Policies"), insuring the dignity and priority of the lien created and
evidenced by the Deeds of Trust; and
WHEREAS, the Borrower caused Star Wholesale Florist, Inc., Magicsilk,
Inc., India Exotics, Inc., and The Xxxxxx Corporation (whether one or more, the
"Guarantor") to execute and deliver to Lender those certain Continuing and
Unconditional Guaranties (collectively, the "Guaranty") dated February 9, 1996,
guaranteeing payment of the Notes and all the other monetary obligations
contained in the Loan Documents and performance by Borrower of the other
obligations as set forth in the Loan Documents; and
WHEREAS, the Lender and Borrower now propose to modify certain of the
terms and provisions of the Loan Agreement, the Notes, the Deeds of Trust and
the other Loan Documents.
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Lender and Borrower hereby agree as follows:
1. Definitions. Capitalized terms used in this Agreement, to
the extent not otherwise defined herein, shall have the same meanings as in the
Loan Agreement, as amended hereby. From and after the date hereof, this
Agreement shall be a Loan Document.
2. Existing Defaults. Borrower hereby acknowledges, confirms,
and agrees that Defaults exist which entitle Lender to exercise all rights and
remedies available to it under the Loan Documents as a result of Borrower's
breach of paragraphs 9.a, 9.b, 9.j, 10.d, and 11.g of the Loan Agreement
(collectively, the "Existing Defaults"). Subject the terms and conditions of
this Agreement, and in reliance upon the representations, warranties, and
covenants of Borrower herein, Lender hereby agrees to waive the Existing
Defaults from the date hereof until 5:00 p.m. Dallas, Texas time on January 31,
1997. After 5:00 p.m. Dallas, Texas time on January 31, 1997, Lender's waiver
herein shall terminate automatically without further action on the part of
Lender, and if the Existing Defaults or any other Default then exists, Lender
shall be entitled to exercise any and all rights and remedies available under
the Loan Documents, in this Agreement, at law, in equity, or otherwise, without
any further lapse of time, expiration of applicable grace periods, or
requirements of notice, all of which are hereby expressly waived by Borrower
and Guarantor.
MODIFICATION AGREEMENT - Page 2
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3. Appraisals and Environmental Report. At Borrower's cost and
expense, Lender shall order and shall receive promptly after the date hereof,
(i) an appraisal (the "1996 Appraisals") of each Property prepared by an
independent third party acceptable to Lender and conforming to the Uniform
Standards of Professional Appraisal Practice as promulgated by the Appraisal
Foundation, and (ii) an environmental report addressed to the Lender and
prepared by an independent third party acceptable to Lender certifying that the
Property and the Borrower's operations thereon comply with all environmental
laws, that the Property is free of hazardous materials, and that the Property
and any structures thereon are free of any conditions that present indoor or
outdoor air hazards.
4. Loan to Value Ratio. Effective upon receipt of the 1996
Appraisals, if at any time the outstanding principal balance of the Notes
exceeds eighty percent (80%) of the aggregate fair market value of the Property
as determined by the 1996 Appraisals, then Borrower shall immediately upon
demand by Lender prepay the Notes by an amount sufficient to cause the
outstanding principal balance of the Notes to be less than or equal to eighty
percent (80%) of the aggregate fair market value of the Property as determined
by the 1996 Appraisals.
5. Current Note Balance. On September 30, 1996, the aggregate
principal amount advanced by Lender and unpaid under Note A was $1,259,590.01,
under Note B was $1,946,848.48, under Note C was $1,413,960.00, and under Note
D was $426,294.48.
6. Modification of Maturity. The maturity date of the Notes is
hereby modified to be January 31, 1998, when the unpaid principal balance of
the Notes, together with all accrued and unpaid interest thereon, shall be due
and payable. The Borrower hereby modifies the Notes and the liens, security
interests and assignments created and evidenced by the Deeds of Trust and other
Loan Documents, and in this regard all of the Loan Documents are hereby
modified by modifying the maturity date thereof as set forth above. Borrower
covenants to observe, comply with and perform each of the terms and provisions
of the Loan Documents, as modified hereby. Except as expressly set forth
herein, all repayment terms of the Notes shall remain effective.
7. Rate of Interest. Commencing on January 31, 1997, interest
on the unpaid principal balance from day to day remaining under the Notes shall
be payable at a rate of interest which shall from day to day be at the annual
rate equal to the lesser of (a) the Maximum Lawful Rate (as defined herein), or
(b) the sum of three percent (3%) plus the Prime Rate (hereinafter defined),
calculated on the basis of a 360-day year and the actual number of days
elapsed; provided, however, if at any time a rate of interest specified in
clause (b) above would exceed the Maximum Lawful Rate, thereby causing the
interest on the indebtedness evidenced by the Notes to be limited to the
Maximum Lawful Rate, then any subsequent reduction in the Prime Rate shall not
reduce the rate of interest on the indebtedness evidenced by the Notes below
the Maximum Lawful Rate until the total amount of interest accrued on the
indebtedness evidenced by the Notes equals the amount of interest which would
have accrued on the indebtedness evidenced by the Notes if the rate specified
in clause (b) above had at all times been in effect. Each change in the rate
of interest charged hereunder shall become effective, without notice to Maker,
on the effective date of each change in the Prime Rate or Maximum Lawful Rate.
As used herein, the term "Maximum Lawful Rate" means at any time the maximum
rate of interest
MODIFICATION AGREEMENT - Page 3
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permitted by applicable law, including as to Article 5069-1.04, Texas Revised
Civil Statutes Annotated (and as amended), but otherwise without limitation,
that rate based upon the "Indicated (weekly) Rate Ceiling," calculated on the
basis of a 365- or 366-day year, as applicable, after taking into consideration
all sums paid or agreed to be paid to Lender outside the provisions of the
Notes for the use, forbearance or detention of the indebtedness of Borrower
evidenced by the Notes, and all other charges constituting interest on the
indebtedness of Borrower evidenced by the Notes. As used herein, the term
"Prime Rate" means at any time the rate of interest per annum then most
recently established by Lender as its prime rate. The term Prime Rate is not
intended nor shall it be implied to mean the lowest rate of interest available
to the most creditworthy borrowers of Lender. Unpaid principal and interest,
after maturity thereof, shall bear interest at the Maximum Lawful Rate until
paid or, if no such rate is designated under applicable law then at the annual
rate equal to the sum of six percent (6%) plus the Prime Rate, calculated on
the basis of a 360-day year and the actual number of days elapsed.
8. Title Insurance. Contemporaneously with the execution and
delivery hereof, the Borrower shall cause the Title Companies to issue with
respect to the Policies, the standard Texas Form T-38 Endorsement pursuant to
Rule P-9b(3) of the Basic Manual of Rules, Rates and Forms for the Writing of
Title Insurance in the State of Texas ("Title Manual") or such comparable
endorsement as may be appropriate in the State of North Carolina with respect
to Tract C, acceptable to Lender, confirming that the Policies have not been
reduced or terminated by virtue of the terms and provisions hereof.
9. Acknowledgment by Borrower. Except as otherwise specified
herein, the terms and provisions hereof shall in no manner impair, limit,
restrict or otherwise affect the obligations of Borrower or any third party to
Lender, as evidenced by the Loan Documents. Borrower hereby acknowledges,
agrees and represents that (i) Borrower is indebted to Lender pursuant to the
terms of the Notes as modified hereby; (ii) the liens, security interests and
assignments created and evidenced by the Loan Documents are, respectively,
valid and subsisting liens, security interests and assignments of the
respective dignity and priority recited in the Loan Documents, and that
notwithstanding the provisions of Paragraph 7 of the Loan Agreement the grant
under the Deeds of Trust of a lien upon the Property to secure repayment of the
Notes, as the same may be renewed, extended or modified from time to time, is
hereby ratified and confirmed; (iii) there are no claims or offsets against, or
defenses or counterclaims to, the terms or provisions of the Loan Documents,
and the other obligations created or evidenced by the Loan Documents; (iv)
Borrower has no claims, offsets, defenses or counterclaims arising from any of
Lender's acts or omissions with respect to the Property, the Loan Documents or
Lender's performance under the Loan Documents or with respect to the Property;
(v) the representations and warranties contained in the Loan Documents are true
and correct representations and warranties of Borrower and Guarantors as of the
date hereof; and (vi) Lender is not in default and no event has occurred which,
with the passage of time, giving of notice, or both, would constitute a default
by Lender of Lender's obligations under the terms and provisions of the Loan
Documents. To the extent Borrower now has any claims, offsets, defenses or
counterclaims against Lender or the repayment of all or a portion of the Loan,
whether known or unknown, fixed or contingent, same are hereby forever
irrevocably waived and released in their entirety.
MODIFICATION AGREEMENT - Page 4
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10. No Waiver of Remedies. Except as may be expressly set forth
herein, nothing contained in this Agreement shall prejudice, act as, or be
deemed to be a waiver of any right or remedy available to Lender by reason of
the occurrence or existence of any fact, circumstance or event constituting a
default under the Note or the other Loan Documents.
11. Joinder of Guarantor. Contemporaneously with the execution
and delivery hereof, Borrower shall cause each Guarantor to execute and deliver
to Lender the signature page of this Agreement, (i) acknowledging and
consenting to the terms and provisions hereof, (ii) ratifying and confirming
the Guaranty, including all interest and costs of collection, to and for the
benefit of Lender, (iii) agreeing that the Guaranty is and shall remain in full
force and effect, and the terms of the Guaranty cover and pertain to the Loan,
Notes, Deeds of Trust, and other Loan Documents, (iv) acknowledging that there
are no claims or offsets against, or defenses or counterclaims to, the terms
and provisions of and the obligations created and evidenced by the Guaranty,
(v) certifying that the representations and warranties contained in the
Guaranty remain true and correct representations and warranties of Guarantor as
of the date hereof, and (vi) acknowledging that Lender has satisfied and
performed its covenants and obligations under the Guaranty and the Loan
Documents (if any), and that no prior action or failure to act by or on behalf
of, Lender has given rise to any cause of action or other claim against Lender
for breach of the Guaranty, the Loan Documents or otherwise.
12. Conditions. The effectiveness of this Agreement is subject to
the satisfaction of the following conditions precedent:
(a) Lender shall have received all of the following, each
dated (unless otherwise indicated) the date of this Agreement, in form
and substance satisfactory to Lender:
(1) Resolutions. Resolutions of the Board of
Directors of Borrower and each Guarantor certified by such
entity's Secretary or an Assistant Secretary which authorize
the execution, delivery, and performance of this Agreement and
the other Loan Documents to which such entity is or is to be a
party hereunder;
(2) Incumbency Certificate. A certificate of
incumbency certified by the Secretary or an Assistant
Secretary of Borrower and each Guarantor certifying the names
of the officers of such entities authorized to sign this
Agreement and each of the other Loan Documents to which each
such entity is or is to be a party hereunder (including the
certificates contemplated herein) together with specimen
signatures of such officers;
(3) Articles of Incorporation. The articles of
incorporation of Borrower and each Guarantor certified by the
appropriate government official of the state of incorporation
or the Secretary or an Assistant Secretary of such entities
within thirty (30) days prior to the date of this Agreement;
MODIFICATION AGREEMENT - Page 5
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(4) Bylaws. The bylaws of Borrower and each
Guarantor certified by the Secretary or an Assistant Secretary
of such entities;
(5) Governmental Certificates. Certificates of
the appropriate government officials of the state of
incorporation of Borrower and each Guarantor as to the
existence and good standing of such entities, each dated
within thirty (30) days prior to the date of this Agreement;
(6) Opinion of Counsel. A favorable opinion
of legal counsel to Borrower and each Guarantor, as to the
following matters and such other matters as Lender may
reasonably request:
(i) Borrower and each Guarantor is a
corporation duly organized, validly existing, and in
good standing under the laws of the state of its
incorporation.
(ii) The execution, delivery, and
performance by Borrower of the Agreement and the
other Loan Documents to which Borrower is a party and
the transactions thereunder have been duly authorized
by all necessary action on the part of Borrower and
do not and will not violate the articles of
incorporation or bylaws of Borrower or the provisions
of any law or any rule, regulation, or order of any
governmental authority and do not and will not result
in a breach or violation of, or constitute a default
under, or require any consent or result in the
creation of any lien, charge, or encumbrance upon any
of Borrower's properties, revenues, or assets under,
any agreement, instrument, or document to which
Borrower is a party or by which Borrower or any of
its properties may be bound.
(iii) The Agreement and the other Loan
Documents to which Borrower is a party have been duly
executed and delivered by Borrower and constitute the
legal, valid, and binding obligations of Borrower
enforceable against Borrower in accordance with their
respective terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar laws
relating to the enforcement of creditors' rights
generally.
(iv) The execution, delivery, and
performance by each Guarantor of the Agreement and
the other Loan Documents to which such Guarantor is a
party and the transactions thereunder have been duly
authorized by all necessary action on the part of
each Guarantor and do not and will not violate the
provisions of any law or any rule, regulation, or
order of any governmental authority and do not and
will not result in a breach or violation of, or
constitute a default under, or require any consent or
result in the creation of any lien, charge, or
encumbrance upon any of any Guarantor's properties,
revenues, or assets under, any agreement,
MODIFICATION AGREEMENT - Page 6
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instrument, or document to which any Guarantor is a
party or by which any Guarantor or any of its
properties may be bound.
(v) The Agreement and the other Loan
Documents to which any Guarantor is a party have been
duly executed and delivered by such Guarantor and
constitute the legal, valid, and binding obligations
of such Guarantor enforceable against such Guarantor
in accordance with their respective terms, except as
the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium,
or other similar laws relating to the enforcement of
creditors' rights generally.
(vi) There are no legal or arbitral
proceedings, and no proceedings by or before any
governmental or regulatory authority or agency,
pending or, to our knowledge, threatened against or
affecting Borrower or any Guarantor or any properties
or rights of Borrower or any Guarantor, which if
adversely determined, would have a material adverse
effect on the financial condition or operations of
Borrower or any Guarantor.
(vii) No authorization, consent, approval,
license, filing or registration with any governmental
or regulatory authority or agency is required in
connection with the execution, delivery, or
performance of Borrower or any Guarantor of the
Agreement or the other Loan Documents thereunder to
which Borrower or Guarantor is a party.
(7) Additional Information. Lender shall have
received such additional documents, instruments and
information as Lender or its legal counsel, Xxxxxxxx Xxxxxxxx
& Xxxxxx P.C., may request.
(b) Lender shall have received a true and correct copy of
the waiver by National Canada Finance Corp. of any and all defaults
existing under that certain Loan Agreement dated as of May 10, 1993,
as amended.
(c) The representations and warranties contained herein
and in all other Loan Documents, as amended hereby, shall be true and
correct as of the date hereof as if made on the date hereof.
(d) Except for the Existing Defaults, no Default shall
have occurred and be continuing and no event or condition shall have
occurred that with the giving of notice or lapse of time or both would
be a Default.
(e) All corporate proceedings taken in connection with
the transactions contemplated by this Amendment and all documents,
instruments, and other legal matters incident thereto shall be
satisfactory to Lender and its legal counsel, Xxxxxxxx Xxxxxxxx &
Xxxxxx P.C.
MODIFICATION AGREEMENT - Page 7
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13. Notices. From and after the date hereof, all notices or other
communications required or permitted to be given pursuant to the Loan Documents
or hereto (except for notice of a foreclosure sale which shall be given in the
manner specifically set forth in the Deeds of Trust or by applicable law) shall
be in writing and shall be deemed served and given at the time of (i) deposit
in a depository receptacle under the care and custody of the United States
Postal Service, properly addressed to the designated address of the addressee
as set forth below, postage prepaid, registered or certified mail with return
receipt requested, (ii) delivery to the designated address of the addressee set
forth below by a third party commercial delivery service or (iii) receipt at
the facsimile or telex receiving facility of the addressee if transmitted by
facsimile transmission. Notice given in any other manner shall be effective
only if and when received by the addressee. For purposes of notices, the
addresses and facsimile numbers of the parties shall be as follows:
Lender: NationsBank of Texas, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Phone: (000) 000-0000
Attn: Xxxx X. Xxxxx
with a copy to: Xxxxxxx Xxxxxxx Xxxxxxx, Esq.
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
5400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Phone: (000) 000-0000
Borrower: Celebrity, Inc.
X.X. Xxx 0000
Xxxxx, XX 00000
Facsimile: (000) 000-0000
Phone: (000) 000-0000
Attn: Xxxxx X. Xxxxxxxx
with a copy to: Xxxx Xxxxxx, Esq.
Xxxxxxx & Xxxxxx, L.L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Phone: (000) 000-0000
Either party shall have the right to change its address and facsimile number
for notice hereunder and under the other Loan Documents to any other location
within the continental United States
MODIFICATION AGREEMENT - Page 8
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by notice to the other party of such new address at least (30) days prior to
the effective date of such new address.
14. Costs and Expenses. The Borrower hereby agrees to pay on
demand: (a) all costs and expenses of the Lender in connection with the
preparation, negotiation, execution, and delivery of this Agreement and the
other Loan Documents and any and all amendments, modifications, renewals,
extensions, and supplements thereof and thereto, including, without limitation,
the fees and expenses of legal counsel for the Lender, (b) all costs and
expenses of the Lender in connection with any Default and the enforcement of
this Agreement or any other Loan Document, including, without limitation, the
fees and expenses of legal counsel for the Lender, (c) all transfer, stamp,
documentary, or other similar taxes, assessments, or charges levied by any
governmental authority in respect of this Agreement or any of the other Loan
Documents, (d) all costs, expenses, assessments, and other charges incurred in
connection with any filing, registration, recording, or perfection of any
security interest or Lien contemplated by this Agreement or any other Loan
Document, and (e) all other costs and expenses incurred by the Lender in
connection with this Agreement or any other Loan Document, including, without
limitation, all costs, expenses, and other charges incurred in connection with
obtaining any mortgagee title insurance policy, survey, audit, environmental
report, or appraisal in respect of the Collateral.
15. INDEMNIFICATION. THE BORROWER SHALL INDEMNIFY THE LENDER AND
EACH AFFILIATE THEREOF AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
ATTORNEYS, AND AGENTS FROM, AND HOLD EACH OF THEM HARMLESS AGAINST, ANY AND ALL
LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS, DISBURSEMENTS,
COSTS, AND EXPENSES (INCLUDING ATTORNEYS' FEES) TO WHICH ANY OF THEM MAY BECOME
SUBJECT WHICH DIRECTLY OR INDIRECTLY ARISE FROM OR RELATE TO (A) THE
NEGOTIATION, EXECUTION, DELIVERY, PERFORMANCE, ADMINISTRATION, OR ENFORCEMENT
OF ANY OF THE LOAN DOCUMENTS, (B) ANY OF THE TRANSACTIONS CONTEMPLATED BY THE
LOAN DOCUMENTS, (C) ANY BREACH BY THE BORROWER OF ANY REPRESENTATION, WARRANTY,
COVENANT, OR OTHER AGREEMENT CONTAINED IN ANY OF THE LOAN DOCUMENTS, (D) THE
PRESENCE, RELEASE, THREATENED RELEASE, DISPOSAL, REMOVAL, OR CLEANUP OF ANY
HAZARDOUS MATERIAL LOCATED ON, ABOUT, WITHIN, OR AFFECTING ANY OF THE
PROPERTIES OR ASSETS OF THE BORROWER OR ANY SUBSIDIARY, OR (E) ANY
INVESTIGATION, LITIGATION, OR OTHER PROCEEDING, INCLUDING, WITHOUT LIMITATION,
ANY THREATENED INVESTIGATION, LITIGATION, OR OTHER PROCEEDING, RELATING TO ANY
OF THE FOREGOING; BUT EXCLUDING LOSSES, LIABILITIES, CLAIMS, DAMAGES,
PENALTIES, JUDGMENTS, DISBURSEMENTS, COSTS, AND EXPENSES (INCLUDING ATTORNEYS'
FEES) ARISING AS A RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF
LENDER. WITHOUT LIMITING ANY PROVISION OF THIS AGREEMENT OR OF ANY OTHER LOAN
DOCUMENT, IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT EACH PERSON TO
BE INDEMNIFIED UNDER THIS SECTION SHALL BE INDEMNIFIED FROM AND HELD HARMLESS
AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES,
MODIFICATION AGREEMENT - Page 9
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PENALTIES, JUDGMENTS, DISBURSEMENTS, COSTS, AND EXPENSES (INCLUDING ATTORNEYS'
FEES) ARISING OUT OF OR RESULTING FROM THE SOLE OR CONTRIBUTORY NEGLIGENCE OF
SUCH PERSON.
16. Limitation of Liability. Neither the Lender nor any
affiliate, officer, director, employee, attorney, or agent of the Lender shall
have any liability with respect to, and the Borrower hereby waives, releases,
and agrees not to xxx any of them upon, any claim for any special, indirect,
incidental, or consequential damages suffered or incurred by the Borrower in
connection with, arising out of, or in any way related to, this Agreement or
any of the other Loan Documents, or any of the transactions contemplated by
this Agreement or any of the other Loan Documents. The Borrower hereby waives,
releases, and agrees not to xxx the Lender or any of the Lender's affiliates,
officers, directors, employees, attorneys, or agents for punitive damages in
respect of any claim in connection with, arising out of, or in any way related
to, this Agreement or any of the other Loan Documents, or any of the
transactions contemplated by this Agreement or any of the other Loan Documents.
17. No Duty. All attorneys, accountants, appraisers, and other
professional persons and consultants retained by the Lender shall have the
right to act exclusively in the interest of the Lender and shall have no duty
of disclosure, duty of loyalty, duty of care, or other duty or obligation of
any type or nature whatsoever to the Borrower or any of the Borrower's
shareholders or any other person.
18. Lender Not Fiduciary. The relationship between the Borrower
and the Lender is solely that of debtor and creditor, and the Lender has no
fiduciary or other special relationship with the Borrower, and no term or
condition of any of the Loan Documents shall be construed so as to deem the
relationship between the Borrower and the Lender to be other than that of
debtor and creditor.
19. Equitable Relief. The Borrower recognizes that in the event
the Borrower fails to pay, perform, observe, or discharge any or all of the
Obligations, any remedy at law may prove to be inadequate relief to the Lender.
The Borrower therefore agrees that the Lender, if the Lender so requests, shall
be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
20.A. RELEASE AND COVENANT NOT TO XXX. BORROWER (IN ITS OWN RIGHT
AND ON BEHALF OF ITS DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS,
ATTORNEYS AND AGENTS) AND EACH GUARANTOR (IN ITS OWN RIGHT AND ON BEHALF OF
THEIR RESPECTIVE DEBTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS,
ATTORNEYS AND AGENTS) (THE "RELEASING PARTIES") JOINTLY AND SEVERALLY RELEASE,
ACQUIT, AND FOREVER DISCHARGE LENDER AND ITS DIRECTORS, OFFICERS, EMPLOYEES,
INDEPENDENT CONTRACTORS, ATTORNEYS AND AGENTS, (THE "RELEASED PARTIES"), TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE STATE AND FEDERAL LAW, FROM ANY AND ALL
ACTS AND OMISSIONS OF THE RELEASED PARTIES, AND FROM ANY AND ALL CLAIMS,
MODIFICATION AGREEMENT - Page 10
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CAUSES OF ACTION, COUNTERCLAIMS, DEMANDS, CONTROVERSIES, COSTS, DEBTS, SUMS OF
MONEY, ACCOUNTS, RECKONINGS, BONDS, BILLS, DAMAGES, OBLIGATIONS, LIABILITIES,
OBJECTIONS, AND EXECUTIONS OF ANY NATURE, TYPE, OR DESCRIPTION WHICH THE
RELEASING PARTIES HAVE AGAINST THE RELEASED PARTIES, INCLUDING, BUT NOT LIMITED
TO, NEGLIGENCE, GROSS NEGLIGENCE, USURY, FRAUD, DECEIT, MISREPRESENTATION,
CONSPIRACY, UNCONSCIONABILITY, DURESS, ECONOMIC DURESS, DEFAMATION, CONTROL,
INTERFERENCE WITH CONTRACTUAL AND BUSINESS RELATIONSHIPS, CONFLICTS OF
INTEREST, MISUSE OF INSIDER INFORMATION, CONCEALMENT, DISCLOSURE, SECRECY,
MISUSE OF COLLATERAL, WRONGFUL RELEASE OF COLLATERAL, FAILURE TO INSPECT,
ENVIRONMENTAL DUE DILIGENCE, NEGLIGENT LOAN PROCESSING AND ADMINISTRATION,
WRONGFUL SETOFF, VIOLATIONS OF STATUTES AND REGULATIONS OF GOVERNMENTAL
ENTITIES, INSTRUMENTALITIES AND AGENCIES (BOTH CIVIL AND CRIMINAL),
RACKETEERING ACTIVITIES, SECURITIES AND ANTITRUST LAWS VIOLATIONS, TYING
ARRANGEMENTS, DECEPTIVE TRADE PRACTICES, BREACH OR ABUSE OF ANY ALLEGED
FIDUCIARY DUTY, BREACH OF ANY ALLEGED SPECIAL RELATIONSHIP, COURSE OF CONDUCT
OR DEALING, ALLEGED OBLIGATION OF FAIR DEALING, ALLEGED OBLIGATION OF GOOD
FAITH, AND ALLEGED OBLIGATION OF GOOD FAITH AND FAIR DEALING, WHETHER OR NOT IN
CONNECTION WITH OR RELATED TO THE LOAN DOCUMENTS AND THIS AGREEMENT, AT LAW OR
IN EQUITY, BY CONTRACT, IN TORT, OR OTHERWISE, KNOWN OR UNKNOWN, SUSPECTED OR
UNSUSPECTED (THE "RELEASED CLAIMS"). THE RELEASING PARTIES FURTHER AGREE TO
LIMIT ANY DAMAGES THEY MAY SEEK IN CONNECTION WITH ANY CLAIM OR CAUSE OF
ACTION, IF ANY, TO EXCLUDE ALL PUNITIVE AND EXEMPLARY DAMAGES, DAMAGES
ATTRIBUTABLE TO LOST PROFITS OR OPPORTUNITY, DAMAGES ATTRIBUTABLE TO MENTAL
ANGUISH, AND DAMAGES ATTRIBUTABLE TO PAIN AND SUFFERING, AND THE RELEASING
PARTIES DO HEREBY WAIVE AND RELEASE ALL SUCH DAMAGES WITH RESPECT TO ANY AND
ALL CLAIMS OR CAUSES OF ACTION WHICH MAY EXIST AS OF THE DATE HEREOF ANY OF THE
RELEASED PARTIES. THE RELEASING PARTIES REPRESENT AND WARRANT THAT NO FACTS
EXIST WHICH COULD PRESENTLY SUPPORT THE ASSERTION OF ANY OF THE RELEASED CLAIMS
AGAINST THE RELEASED PARTIES. THE RELEASING PARTIES FURTHER COVENANT NOT TO
XXX THE RELEASED PARTIES ON ACCOUNT OF ANY OF THE RELEASED CLAIMS, AND
EXPRESSLY WAIVE ANY AND ALL DEFENSES THEY MAY HAVE IN CONNECTION WITH THEIR
DEBTS AND OBLIGATIONS UNDER THE LOAN DOCUMENTS AND THIS AGREEMENT. THIS
PARAGRAPH IS IN ADDITION TO AND SHALL NOT IN ANY WAY LIMIT ANY OTHER RELEASE,
COVENANT NOT TO XXX, OR WAIVER BY THE RELEASING PARTIES IN FAVOR OF THE
RELEASED PARTIES.
20.B. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE
PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO
THE NOTES OR ANY RELATED NOTES OR
MODIFICATION AGREEMENT - Page 11
12
INSTRUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT,
SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF
PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF
J.A.M.S./ENDISPUTE OR ANY SUCCESSOR THEREOF ("J.A.M.S.") AND THE "SPECIAL
RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES
SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT
HAVING JURISDICTION. ANY PARTY TO THIS AGREEMENT MAY BRING AN ACTION,
INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY
CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING
JURISDICTION OVER SUCH ACTION.
(i) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED
IN THE CITY OF BORROWER'S DOMICILE AT THE TIME OF THIS AGREEMENT'S
EXECUTION AND ADMINISTERED BY J.A.M.S., WHO WILL APPOINT AN
ARBITRATOR. IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM
ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED
WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR
SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE
COMMENCEMENT OF SUCH HEARING FOR AN ADDITIONAL 60 DAYS.
(ii) RESERVATION OF RIGHTS. NOTHING IN THIS AGREEMENT
SHALL BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE
APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED
IN THIS AGREEMENT OR THE NOTES; OR (II) BE A WAIVER BY LENDER OF THE
PROTECTION AFFORDED TO IT BY 12 U.S.C. Section 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF LENDER
HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO)
SETOFF, OR (B) TO FORECLOSURE AGAINST ANY REAL OR PERSONAL PROPERTY
COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY
REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF
POSSESSION OR THE APPOINTMENT OF A RECEIVER. LENDER MAY EXERCISE SUCH
SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH
PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY
OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS NOTE. NEITHER
THE EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE
OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES
SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE
CLAIMANT IN SUCH
MODIFICATION AGREEMENT - Page 12
13
ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM
OCCASIONING RESORT TO SUCH REMEDIES.
21. Additional Documentation. From time to time, Borrower shall
execute or procure and deliver to Lender such other and further documents and
instruments evidencing, securing or pertaining to the Loan or the Loan
Documents as shall be reasonably requested by Lender so as to evidence or
effect the terms and provisions hereof.
22. Effectiveness of the Loan Documents. Except as expressly
modified by the terms and provisions hereof, each of the terms and provisions
of the Loan Documents are hereby ratified and shall remain in full force and
effect; provided, however, that any reference in any of the Loan Documents to
the Loan, the amount constituting the Loan, any defined terms, or to any of the
other Loan Documents shall be deemed, from and after the date hereof, to refer
to the Loan, the amount constituting the Loan, defined terms and to such other
Loan Documents, as modified hereby.
23. GOVERNING LAW. THE TERMS AND PROVISIONS HEREOF SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
24. Time. Time is of the essence in the performance of the
covenants contained herein and in the Loan Documents.
25. Binding Agreement. This Agreement shall be binding upon the
successors and assigns of the parties hereto; provided, however, the foregoing
shall not be deemed or construed to (i) permit, sanction, authorize or condone
the assignment of all or any part of the Property or any of Borrower's rights,
titles or interests in and to the Property, except as expressly authorized in
the Loan Documents, or (ii) confer any right, title, benefit, cause of action
or remedy upon any person or entity not a party hereto, which such party would
not or did not otherwise possess.
26. Headings. The section headings hereof are inserted for
convenience of reference only and shall in no way alter, amend, define or be
used in the construction or interpretation of the text of such section.
27. Construction. Whenever the context hereof so requires,
reference to the singular shall include the plural and likewise, the plural
shall include the singular; words denoting gender shall be construed to mean
the masculine, feminine or neuter, as appropriate; and specific enumeration
shall not exclude the general, but shall be construed as cumulative of the
general recitation.
28. Severability. If any clause or provision of this Agreement is
or should ever be held to be illegal, invalid or unenforceable under any
present or future law applicable to the terms hereof, then and in that event,
it is the intention of the parties hereto that the remainder of this Agreement
shall not be affected thereby, and that in lieu of each such clause or
provision of this Agreement that is illegal, invalid or unenforceable, such
clause or provision shall be judicially
MODIFICATION AGREEMENT - Page 13
14
construed and interpreted to be as similar in substance and content to such
illegal, invalid or unenforceable clause or provision, as the context thereof
would reasonably suggest, so as to thereafter be legal, valid and enforceable.
29. Counterparts. This Agreement may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
30. ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER DOCUMENTS, IF
ANY, HEREIN REQUIRED TO BE EXECUTED REPRESENT THE FINAL AGREEMENT OR AGREEMENTS
BETWEEN THE PARTIES AS TO THE SUBJECT MATTER HEREOF AND THEREOF, 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 INSTRUMENT MAY BE AMENDED ONLY BY AN INSTRUMENT IN WRITING
EXECUTED BY THE PARTIES HERETO.
MODIFICATION AGREEMENT - Page 14
15
EXECUTED as of the date first above written.
LENDER:
------
NATIONSBANK OF TEXAS, N.A.,
a national banking association
By:
------------------------------------
Name:
-----------------------------
Title:
-----------------------------
BORROWER:
--------
CELEBRITY, INC.,
ATTEST: a Texas corporation
[SEAL]
By:
--------------------------------- ------------------------------------
Name: Name:
----------------------------- ---------------------------------
Title: Title:
---------------------------- ---------------------------------
(Secretary or Assistant Secretary)
TRUSTEE:
(Seal)
-----------------------------------------
XXXXXXX X. XXXX, as Trustee
MODIFICATION AGREEMENT - Page 15
00
XXXXX XX XXXXX Xxxxxxx
Xxxxxxx
XXXXXX OF _________ Section
This instrument was ACKNOWLEDGED before me, on the _____ day of
________, 1996, by ________________________________, the __________________ of
NATIONSBANK OF TEXAS, N.A., a national banking association on behalf of said
association.
[ S E A L ]
-------------------------------------
Notary Public, State of Texas
My Commission Expires:
-------------------------------------
---------------------- Printed Name of Notary Public
STATE OF TEXAS Section
Section
COUNTY OF _________ Section
This instrument was ACKNOWLEDGED before me, on the _____ day of
________, 1996, by ________________________________, the __________________ of
CELEBRITY, INC., a Texas corporation, on behalf of said corporation.
[ S E A L ]
-------------------------------------
Notary Public, State of Texas
My Commission Expires:
-------------------------------------
---------------------- Printed Name of Notary Public
STATE OF TEXAS Section
Section
COUNTY OF _________ Section
This instrument was ACKNOWLEDGED before me, on the _____ day of
________, 1996, by Xxxxxxx X. Xxxx, Trustee.
[ S E A L ]
-------------------------------------
Notary Public, State of Texas
My Commission Expires:
-------------------------------------
---------------------- Printed Name of Notary Public
MODIFICATION AGREEMENT - Page 16
17
NORTH CAROLINA ACKNOWLEDGMENT FORM
STATE OF TEXAS Section
Section
COUNTY OF _________ Section
I, a Notary Public of the County and State aforesaid, certify that
______________, personally came before me this day and acknowledged that he is
_________ Secretary of CELEBRITY, INC., a Texas corporation, and that by
authority duly given and as the act of the corporation, the foregoing instrument
was signed in its name by its _______ President, sealed with its corporate seal
and attested by ___________ as its ___________ Secretary. Witness my hand and
official stamp or seal, this _____ day of __________, 1996.
[ S E A L ]
-------------------------------------
Notary Public, State of Texas
My Commission Expires:
-------------------------------------
---------------------- Printed Name of Notary Public
STATE OF TEXAS Section
Section
COUNTY OF _________ Section
I, a Notary Public of the County and State aforesaid, certify that
XXXXXXX X. XXXX, TRUSTEE, personally appeared before me this day and
acknowledged the execution of the foregoing instrument. Witness my hand and
official stamp or seal, this _____ day of _______, 1996.
[ S E A L ]
-------------------------------------
Notary Public, State of Texas
My Commission Expires:
-------------------------------------
---------------------- Printed Name of Notary Public
MODIFICATION AGREEMENT - Page 17
18
Each Guarantor hereby consents and agrees to this Agreement and agrees
that its respective Guaranty shall remain in full force and effect, shall
continue to be the legal, valid and binding obligation of such Guarantor
enforceable against such Guarantor in accordance with its terms, and shall
guarantee to Lender repayment of the Notes as modified hereby and as the same
may be further renewed, extended, or modified from time to time.
Guarantors:
----------
STAR WHOLESALE FLORIST, INC.
By:
-------------------------------------
Name:
--------------------------
Title:
--------------------------
MAGICSILK, INC.
By:
-------------------------------------
Name:
--------------------------
Title:
--------------------------
INDIA EXOTICS, INC.
By:
-------------------------------------
Name:
--------------------------
Title:
--------------------------
THE XXXXXX CORPORATION
By:
-------------------------------------
Name:
--------------------------
Title:
--------------------------
MODIFICATION AGREEMENT - Page 18
00
XXXXX XX XXXXX Xxxxxxx
Xxxxxxx
XXXXXX OF __________ Section
This instrument was ACKNOWLEDGED before me on ________, 1996, by
________________________________________________,
_______________________________ of STAR WHOLESALE FLORIST, INC., a Texas
corporation, on behalf of said corporation.
[ S E A L ]
-------------------------------------
Notary Public, State of Texas
My Commission Expires:
-------------------------------------
---------------------- Printed Name of Notary Public
STATE OF TEXAS Section
Section
COUNTY OF __________ Section
This instrument was ACKNOWLEDGED before me on __________, 1996, by
________________________________________________,
_______________________________ of MAGICSILK, INC., a Texas corporation, on
behalf of said corporation.
[ S E A L ]
-------------------------------------
Notary Public, State of Texas
My Commission Expires:
-------------------------------------
---------------------- Printed Name of Notary Public
MODIFICATION AGREEMENT - Page 19
00
XXXXX XX XXXXX Xxxxxxx
Xxxxxxx
XXXXXX OF __________ Section
This instrument was ACKNOWLEDGED before me on __________, 1996, by
________________________________________________,
_______________________________ of INDIA EXOTICS, INC., a Texas corporation, on
behalf of said corporation.
[ S E A L ]
-------------------------------------
Notary Public, State of Texas
My Commission Expires:
-------------------------------------
---------------------- Printed Name of Notary Public
STATE OF TEXAS Section
Section
COUNTY OF __________ Section
This instrument was ACKNOWLEDGED before me on __________, 1996, by
________________________________________________,
_______________________________ of THE XXXXXX CORPORATION, a California
corporation, on behalf of said corporation.
[ S E A L ]
-------------------------------------
Notary Public, State of Texas
My Commission Expires:
-------------------------------------
---------------------- Printed Name of Notary Public
MODIFICATION AGREEMENT - Page 20
21
EXHIBIT "A"
Deeds of Trust
Date of Place of Date Subject Filing Secured
Instrument Recordation of Filing Property Information Obligations
---------- ----------- --------- -------- ----------- -----------
1. 4/22/93 Xxxxx Co., TX 4/22/93 Tract A Vol. 3354, Pg. 701 Note A
Modified 3/21/94 Vol. 3492, Pg. 849 &
3/21/94 Vol. 3492, Xx. 000
0. 3/21/94 Xxxxx Co., TX 3/21/94 Tract B (Also 2d Vol. 3492, Page 803 Notes A, B, C & D
lien on Tract A
and Tract B)
Modified 4/5/95 Vol. 3645, Page 511
3/20/95
3. 3/20/94 Forsyth Co., NC 3/21/94 Tract C Book 1818, Page 1197 Notes A, B, C & D
Modified 1/6/95 Book 1845, Page 2587
12/21/94
Modified 3/18/96 Book 1892, Page 0557
2/9/96
4. 2/9/96 Xxxxx Co., TX 2/12/96 Tract D (Also 2d Vol. 3759, Page 431 Notes A, B, C & D
lien on Tract A
and Tract B)
22
EXHIBIT "B"
Legal Description of Property
23
EXHIBIT "C"
Title Insurance
Policy Policy
Issuer Policy No. Date Amount Subject Property
------ ---------- ---- ------ ----------------
1. Xxxxx Abstract Co./Old TM1077368 3/21/94 $1,800,000 Tract A
Republic National Title
Insurance Company
2. Xxxxx Abstract Co./Old TM1130119 3/24/94 $2,290,409.98 Tract B
Republic National Title
Insurance Company
3. Lawyers Title of North 000-00-000000 3/21/94 $2,100,000 Tract C
Carolina/Lawyers Title
Insurance Corporation
4. Xxxxx County Abstract M-5842-227944 2/12/96 $455,550 Tract D
Company
