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EXHIBIT 10.52
ASSUMPTION AGREEMENT
THE STATE OF TEXAS )
) KNOW ALL MEN BY THESE PRESENTS THAT:
COUNTY OF BEXAR )
THIS ASSUMPTION AGREEMENT (this "Agreement") dated as of the 6th day
of April, 1998, by and between NATIONWIDE LIFE INSURANCE COMPANY, an Ohio
corporation ("Nationwide"), and EMPLOYERS LIFE INSURANCE COMPANY OF WAUSAU, a
Wisconsin corporation ("Employers") (Nationwide and Employers being
collectively "Lender"), SOLO SERVE CORPORATION, a Delaware corporation
("Maker"), XXXXXX/XXXXXXX 1, LTD., a Texas limited partnership ("Borrower"),
XXXXXX/XXXXXXX, LLC, a Texas limited liability company (the "General Partner")
and XXXX X. XXXXXX ("Xxxxxx") (the General Partner and Xxxxxx being
collectively "Indemnitors");
W I T N E S S E T H T H A T:
WHEREAS, Lender has made a loan to Maker in the amount of $5,940,000
(the "Loan"), and in connection with the Loan, Maker has executed and delivered
to Lender one certain Mortgage Note A dated November 20, 1992, payable to the
order of Nationwide in the original principal sum of $4,940,000, with interest
and principal payable as therein provided, which Mortgage Note A has been
modified by that certain Loan Modification Agreement (the "Modification") dated
July 18, 1995, executed by Maker and Lender, recorded in Volume 6568, Page 1548
in the Official Public Record of Real Property of Bexar County, Texas (Mortgage
Note A as modified by the Modification, "Note A") and one certain Mortgage Note
B dated November 20, 1992, payable to the order of Employers in the original
principal sum of $1,000,000, with interest and principal payable as therein
provided, which Mortgage Note B has been modified by the Modification (Mortgage
Note B as modified by the Modification, "Note B") (Note A and Note B being
collectively the "Note"), the payment of which Note is secured by Deed of Trust,
Mortgage and Security Agreement dated of even date with the Note from Maker to
M. Xxxxxxxx Xxxxx, Xx., Trustee, recorded in Volume 5504, Page 720, of the Real
Property Records of Bexar County, Texas, covering certain real property
described therein (the "Property"), including without limitation, the land
described in Exhibit A attached hereto and made a part hereof, which Deed of
Trust, Mortgage and Security Agreement has been modified by the Modification
(the Deed of Trust, Mortgage and Security Agreement as modified by the
Modification, the "Deed of Trust"), reference being here made to the Deed of
Trust and the record thereof for all purposes;
WHEREAS, in connection with the Loan, Maker has also executed (i) an
Assignment of Leases, Rents and Profits dated of even date with the Note from
Maker to Lender, recorded in Volume 5504, Page 765, of the Real Property
Records of Bexar County, Texas, providing a source of future payment of the
Loan, which Assignment of Leases and Rents has been modified by the
Modification (the Assignment of Leases, Rents and Profits as modified by the
Modification, the "Assignment of Leases and Rents"), reference being here made
to the Assignment of Leases and Rents and the record thereof for all purposes,
and (ii) that certain Indemnity Agreement (the "Indemnity Agreement") dated of
even date with the Note executed by Maker in favor of Lender (the Note, the
Deed of Trust, the Assignment of Leases and Rents, the Indemnity Agreement and
all other documents executed by Maker or any other parties in connection with
or securing or evidencing the Loan are herein collectively called the "Loan
Documents");
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WHEREAS, the Deed of Trust provides that the indebtedness secured
thereby may, at the option of the holder of same, be accelerated if Maker or
any assignee of Maker sells or conveys any or all of the Property without the
consent of Lender;
WHEREAS, Lender has been requested to consent to the conveyance of the
Property to Borrower and Lender is willing so to consent upon compliance with
the terms and provisions of this Agreement; and
WHEREAS, Lender is the owner and holder of the Note and Borrower is
the owner of the legal and equitable title to the Property;
NOW, THEREFORE, for and in consideration of the mutual covenants
contained herein and for other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Conveyance of Property. Maker has concurrently herewith
conveyed title to the Property to Borrower. Borrower hereby acknowledges and
agrees that title to the Property and its interest therein, is encumbered by
and subject to the liens, security interests, assignments and other terms,
covenants, restrictions and provisions of the Loan Documents.
2. Assumption by Borrower and Indemnitors.
(a) Borrower hereby acknowledges and agrees that it
hereby (i) assumes and promises to keep and perform all covenants and
obligations on Maker's part to be performed under the Loan Documents
from and after the conveyance and transfer of the Property to Borrower
and attributable to any act, omission, occurrence, event or
circumstance occurring after the conveyance and transfer of the
Property to Borrower to the same extent as if Borrower were the Maker
thereto and (ii) assumes and promises to pay the outstanding principal
balance of the Note, with interest thereon, and all other sums
required to be paid to Lender in accordance with the provisions of the
Note and other Loan Documents, and to perform, comply with and abide
by each and every one of the covenants, agreements and conditions
contained and set forth in the Loan Documents.
(b) Indemnitors hereby acknowledge and agree that they
hereby assume and promise to keep and perform all covenants and
obligations on Maker's part to be performed under the Indemnity
Agreement from and after the conveyance and transfer of the Property
to Borrower and attributable to any act, omission, occurrence, event
or circumstance occurring after the conveyance and transfer of the
Property to Borrower to the same extent as if Borrower and Indemnitors
were the Maker thereto.
(c) For purposes of this Agreement, the transfer of the
Property shall be deemed to have occurred simultaneously with the
recordation in the Real Property Records of Bexar County, Texas, of
the deed by which title to the Property is conveyed by Maker to
Borrower.
3. Conditions Precedent to Lender's Consent. Lender's consent
and approval as set forth in Paragraph 4 below is conditioned upon the
satisfaction of the following conditions precedent:
(a) Maker, Borrower and Indemnitors shall have executed
and delivered this Agreement to Lender.
(b) Maker or Borrower shall have paid a total transfer
fee of 1% of the outstanding principal balance of Note A and Note B at
the time of such transfer to Lender (which amount includes $3,000.00
previously paid to Lender) in connection with the transfer of the
Property and the assumption of the loan evidenced by the Note by
Borrower, and shall have reimbursed Lender for any and all costs and
expenses and third-party costs incurred by Lender for the processing
of said
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transfer, including, without limitation, counsel fees, recording and
transfer fees, and title insurance costs and premiums. Maker and
Borrower agree that should the Loan Documents contain any provision
defining or limiting a transfer fee or assumption fee, this paragraph
shall control and supersede such provision.
(c) Lender shall have received and approved such
partnership documents or other organizational documents of Borrower
and the General Partner as are requested by Lender.
(d) Borrower shall have, at its sole cost and expense,
obtained and delivered to Lender a mortgagee's title policy to be
issued simultaneously with Borrower's owner's policy insuring the lien
of the Deed of Trust in an amount equal to the loan balance assumed.
(e) Borrower shall have executed and delivered to Lender
a Certification of Non-Foreign Status in a form acceptable to Lender.
(f) Borrower shall have executed and filed financing
statements and/or financing statement amendments in form and substance
satisfactory to Lender in all places necessary in connection with the
perfection of Lender's security interest in the fixtures and other
property described in the Deed of Trust.
(g) Maker shall have executed and contemporaneously filed
of record, in the Real Property Records of Bexar County, Texas, a deed
in the form approved by Lender, pursuant to which title to the
Property shall be conveyed to Borrower.
(h) There shall be no secondary or subordinate financing
of the Property in connection with the conveyance and transfer of the
Property by Maker to Borrower and no other changes to the status of
title to the Property not approved by Lender.
(i) Borrower shall have executed and delivered an Escrow
and Security Agreement to Lender, in form and substance
satisfactory to Lender.
(j) Borrower and Maker shall have executed and delivered
to Lender a lease covering the Property, in form and substance
satisfactory to Lender.
(k) Borrower shall have executed and delivered a Notice
and Agreement to Lender, in form and substance satisfactory to
Lender.
(l) Borrower shall continue to escrow for real estate
taxes, assessments and insurance premiums pursuant to the Deed of
Trust.
(m) Borrower shall deliver to Lender in form and
substance satisfactory to Lender and Borrower's counsel, an opinion of
counsel to Borrower and Indemnitors, stating that, inter alia, (i)
Borrower is duly formed, legally existing and in good standing under
the laws of the State of its formation and authorized to do business
in Texas, (ii) the General Partner is duly formed, legally existing
and in good standing under the laws of the State of its formation and
authorized to do business in Texas, (iii) the execution of this
Agreement and the other documents in connection with the assumption of
the Loan have been duly authorized by Borrower and the General
Partner, (iv) Borrower has all requisite authority to
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own, lease and operate the Property and assume the obligations of
Maker under the Loan Documents, (v) Indemnitors have all requisite
authority to assume the obligations of Maker under the Indemnity
Agreement, and (vi) this Agreement and the other documents executed by
Borrower and Indemnitors in connection with the assumption of the Loan
have been duly executed and delivered by Borrower and Indemnitors and
are legal, valid, and binding obligations of Borrower and/or
Indemnitor, as the case may be, and enforceable against Borrower or
Indemnitor, as the case may be, in accordance with their terms.
(n) Maker or Borrower shall pay, or cause to be paid, all
costs and expenses incident to the preparation hereof and the
consummation of the transactions specified herein, including without
limitation title insurance policy premiums or endorsement charges,
fees and expenses of legal counsel to Lender and recording fees.
4. Consent to Transfer of Property and Release of Maker. Subject
to the conditions set forth in Paragraph 3 above and pursuant to Paragraph 33
of the Deed of Trust:
(a) Lender hereby consents to the sale and transfer of
the Property to Borrower, and hereby accepts Borrower as the owner of
the Property, without prejudice to its rights with respect to any
future conveyance of the Property (or any interest therein).
(b) Lender shall amend its records to indicate that
Borrower is the owner of the Property, and Lender shall indicate on
the Note that the Note is subject to the terms of this Agreement.
(c) From and after the conveyance of the Property, Lender
hereby releases, remises, acquits and forever discharges Maker,
together with its employees, agents, representatives, consultants,
attorneys, fiduciaries, servants, officers, directors, partners,
predecessors, successors and assigns, subsidiary corporations, parent
corporations, and related corporate divisions (all of the foregoing
hereinafter called the "Maker's Released Parties"), from any and all
actions and causes of action, judgments, executions, suits, debts,
claims, demands, liabilities, obligations, damages and expenses of any
and every character, known or unknown, direct and/or indirect, at law
or in equity, of whatsoever kind or nature, whether heretofore or
hereafter accruing under the Loan Documents, and/or for or because of
any matter or things done, omitted or suffered to be done by any of
the Maker's Released Parties, and in any way directly or indirectly
arising out of or in any way connected to the Note, the Deed of Trust,
the Assignment of Leases and Rents or any other Loan Document, or any
of the transactions associated therewith, or the Property, provided,
however, that the foregoing release shall not cover any obligation or
liability of Maker under the Loan Documents prior to the conveyance of
the Property or any of the representations, covenants and obligations
of Maker contained in this Agreement.
5. Representations, Warranties and Covenants to Lender.
(a) Maker, Borrower and Indemnitors hereby represent,
warrant, certify and covenant to Lender (EACH SUCH REPRESENTATION,
WARRANTY AND CERTIFICATION BEING MADE BY MAKER AS TO ITSELF, BY
BORROWER AS TO ITSELF AND BY INDEMNITORS AS TO THEMSELVES)
respectively that:
(i) Such party has not made an assignment for
benefit of creditors;
(ii) No application or petition has been filed for
the appointment of a custodian, trustee, receiver or agent to
take possession of any property of such party;
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(iii) Such party is generally paying its debts as
such debts become due;
(iv) Such party is not "insolvent" as that term is
defined in Section 101(31) of the "Bankruptcy Code" (Title 11
of the United States Code; 11 U.S.C. Sections 101, et seq.);
(v) Such party has not filed a petition with the
bankruptcy court under the Bankruptcy Code, or commenced any
proceeding relating to Borrower under any bankruptcy or
reorganization statute or under any arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any
jurisdiction;
(vi) No petition or application of the type
described in subparagraphs (ii) and (v) above, and no
proceeding of the type described in subparagraph (v) above,
has been filed or commenced against such party;
(vii) Execution and delivery of this Agreement by
such party and to the extent applicable, compliance by such
party with the provisions of the Loan Documents will not (A)
violate or result in any breach of any of the terms,
conditions or provisions of or constitute a default under any
deed of trust, loan agreement, indenture or other contract or
agreement to which such party is a party or by which such
party or any of its properties may be bound (nor would such
execution and delivery constitute such a default with the
passage of time or the giving of notice or both) and do not
violate or contravene any law, order, decree, rule or
regulation to which such party is subject, (B) result in the
creation of any lien, charge or encumbrance on the property or
assets of such party (other than the lien on the Property
created by the Loan Documents), or (C) violate the terms of
such party's organizational documents, to the extent
applicable or any order of any court or administrative agency
entered in any proceeding to which such party was or is a
party or to which such party may be subject or be bound;
(viii) This Agreement constitutes the legal, valid
and binding obligations of each such party, enforceable in
accordance with its terms;
(ix) The execution and delivery of, and
performance under this Agreement are within such party's power
and authority without the joinder or consent of any other
party and have been duly authorized by all requisite action;
(x) Each person executing this Agreement as a
representative of such party, and, to the extent applicable,
its general partner, has been duly authorized and has full
power to execute and deliver this Agreement on behalf of such
party, and to bind such party to the terms and conditions
hereof;
(xi) To its actual knowledge, such party is not in
violation of any Federal or State laws, including, but not
limited to, Federal securities laws, blue sky laws, and other
laws, or the rules or regulations of the Securities and
Exchange Commission with respect to the Property;
(xii) Such party is not engaged and has not been
engaged at any time since Maker's acquisition of the Property
in a "pattern of racketeering activity" within the meaning of
18 U.S.C. 1961, as amended, or engaged in any other pattern
of actions, the potential results of which might include
forfeiture of Maker's interest in the Property;
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(xviii) There are no law suits or legal proceedings
pending or to the actual knowledge of such party's knowledge
threatened in any court or before any governmental agency
involving such party or the Property, nor are there any
judgments outstanding against such party.
(b) Maker and Borrower hereby represent, warrant and
certify to Lender that, as of the date hereof, Maker or Borrower, as
the case may be and with respect to itself, has no knowledge of any
offsets, defenses or counterclaims to the payment of the indebtedness
evidenced by the Note, and Borrower hereby agrees that if Borrower
hereafter becomes aware of such defense to the payment of such
indebtedness based on facts or circumstances existing as of the date
hereof, the same will not be raised against Lender.
(c) The representations, warranties and certifications
set forth herein are given to induce Lender to grant the consent and
approvals set forth in Paragraph 4 above, with the knowledge that
Lender will rely upon the truth of the statements made herein.
(d) Maker, Borrower and Indemnitors each agree to
indemnify and hold Lender harmless against any loss, claim, damage,
liability or expense (including without limitation attorneys' fees)
incurred as a result of any representation or warranty made by it, but
not of any other of such parties, herein proving to be untrue in any
respect.
(e) Borrower hereby represents, warrants and certifies to
Lender that:
(i) Borrower is duly organized and legally
existing under the laws of the State of Texas and is
authorized to own and operate the Property and/or otherwise
transact business in the State of Texas; and
(ii) Borrower understands and hereby acknowledges
all of the terms and provisions of the Loan Documents.
(f) General Partner hereby represents, warrants and
certifies to Lender that General Partner is duly organized and legally
existing under the laws of the State of Texas.
(g) Maker hereby represents, warrants and certifies to
Lender that to Maker's knowledge there exists no uncured default under
the Note, the Deed of Trust, the Assignment of Leases and Rents or any
of the other Loan Documents.
(h) Borrower and Indemnitors reaffirm to Lender each of
the covenants and agreements of Maker set forth in the Loan Documents
with the same force and effect as if each were separately stated
herein.
(i) It is specifically understood and agreed that each of
the representations, warranties, certifications and covenants made in
this Section 5 are made by such party as each applies to itself (and
not for any other party to this Agreement), and not to any other party
that may be making the same representations, warranty, certification
and/or covenant.
(j) Nothing contained herein shall be construed as an
acknowledgment, confirmation or reaffirmation by Borrower, the
Indemnitors or the General Partner of any of the representations and
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warranties made by Maker in the Loan Documents; it being understood
that the representations and warranties set forth in this Agreement
and/or such other loan documents specifically executed by Borrower,
Indemnitors or General Partner, as the case may be, are intended to be
inclusive of all representations and warranties made by Borrower,
Indemnitors or General Partner, with respect to the Loan Documents
assumed herein. This subsection 5(j) shall not be deemed to limit
Borrower's and Indemnitors' assumption of the covenants and agreements
under the Loan Documents as specifically provided in this Agreement.
6. Further Assurances. Borrower, upon request from Lender,
agrees to execute such other and further documents as may be reasonably
necessary or appropriate to consummate the transactions contemplated herein or
to perfect the liens and security interests intended to secure the payment of
the loan evidenced by the Note.
7. INDEMNIFICATIONS. BORROWER EXPRESSLY CONFIRMS AND AGREES THAT
THE INDEMNITY AGREEMENTS CONTAINED IN PARAGRAPHS 3 AND 26 OF THE DEED OF TRUST
AND IN PARAGRAPH 4 OF THE ASSIGNMENT OF LEASES AND RENTS APPLY TO EACH
INDEMNIFIED PARTY THEREUNDER WITH RESPECT TO CLAIMS, DEMANDS, LIABILITIES,
LOSSES, DAMAGES, CAUSES OF ACTION, JUDGMENTS, PENALTIES, COSTS AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, COURT COSTS AND ATTORNEYS' FEES) WHICH IN WHOLE
OR IN PART ARE CAUSED BY OR ARISE OUT OF THE NEGLIGENCE OF SUCH (AND/OR ANY
OTHER) INDEMNIFIED PARTY. HOWEVER, SUCH INDEMNITIES SHALL NOT APPLY TO ANY
INDEMNIFIED PARTY TO THE EXTENT THE SUBJECT OF THE INDEMNIFICATION IS CAUSED BY
OR ARISES OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED
PARTY.
8. RELEASES IN LOAN DOCUMENTS. BORROWER EXPRESSLY CONFIRMS AND
AGREES THAT THE RELEASE CONTAINED IN SECTION 1.E OF THE ASSIGNMENT OF LEASES
AND RENTS APPLIES TO LENDER WITH RESPECT TO ANY MATTER COVERED THEREBY WHICH IN
WHOLE OR IN PART IS CAUSED BY OR ARISES OUT OF THE NEGLIGENCE OF LENDER.
HOWEVER, SUCH RELEASE SHALL NOT APPLY TO LENDER TO THE EXTENT A MATTER COVERED
THEREBY IS CAUSED BY OR ARISES OUT OF THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF LENDER.
9. Remedies. If Borrower or Indemnitors shall fail to keep or
perform any of the covenants or agreements contained herein or if any
statement, representation or warranty contained herein is false, misleading or
erroneous in any material respect as each applies to itself, Borrower shall be
deemed to be in default under the Deed of Trust and Lender shall be entitled at
its option to exercise any and all of the rights and remedies granted pursuant
to the Deed of Trust, the Assignment of Leases and Rents or any other Loan
Document or which Lender may otherwise be entitled, whether at law or in
equity. Nothing contained in this Section 9 or otherwise in this Agreement
shall be construed to create any obligation or agreement of Borrower or
Indemnitors, as the case may be, to perform any duties or obligations of the
other party under the Loan Documents which are not specifically assumed herein.
10. Lien Status. Maker and Borrower hereby acknowledge and agree
that the liens and security interests created and evidenced by the Deed of
Trust and the assignment created and evidenced by the Assignment of Leases and
Rents are valid and subsisting and further acknowledge and agree that there are
no offsets, claims or defenses to the Note, the Deed of Trust, the Assignment
of Leases and Rents or any other Loan Documents.
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11. Other Provisions Unchanged. Notwithstanding anything to the
contrary contained in the Deed of Trust (i)it is understood that Borrower
and/or any tenant of Borrower permitted under the Loan Documents shall have the
right to make alterations, additions, and improvements to the interior or
exterior of the "Building" comprising part of the Property and the parking
areas adjacent to such Building equal to or less than Five Thousand and No/100
Dollars ($5,000.00) without the prior consent of Lender and (ii) it is
understood that Sanwa Business Credit Corporation and MetLife Capital
Corporation currently have a lien on certain non-movable trade fixtures,
equipment and personal property owned and/or utilized by Maker, Borrower's
tenant, in connection with the Property, which non-movable trade fixtures,
equipment and personal property do not comprise part of the Property (as
defined in the Deed of Trust) under the Loan Documents. Except for the
foregoing sentence, the terms and provisions of the Loan Documents shall remain
unchanged and shall remain in full force and effect. The Loan Documents are
hereby ratified and confirmed in all respects. All liens, security interests,
mortgage and assignments granted or created by or existing under the Deed of
Trust, the Assignment of Leases and Rents and the other Loan Documents remain
unchanged and continue, unabated, in full force and effect, to secure
Borrower's obligation to repay the Note.
12. Merger. This Agreement supersedes and merges all prior and
contemporaneous promises, representations and agreements. No modification of
any of the Loan Documents, or any waiver of rights under any of the foregoing,
shall be effective unless made by supplemental agreement, in writing, executed
by Lender and Borrower. Lender, Maker, and Borrower further agree that this
Agreement may not in any way be explained or supplemented by a prior, existing
or future course of dealings between the parties or by any prior, existing, or
future performance between the parties pursuant to this Agreement or otherwise.
13. Notices. Any notice or communication required or permitted
hereunder or under the Loan Documents shall be given in writing, sent by (a)
personal delivery, or (b) expedited delivery service with proof of delivery, or
(c) United States mail, postage prepaid, registered or certified mail, or (d)
prepaid telegram, telex or telecopy, addressed as follows:
To Borrower: Xxxxxx/XxXxxxx 1, Ltd.
000 Xxxxxxx Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxx 00000
To Nationwide: Nationwide Life Insurance Company
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000-0000
Attn: Real Estate Investments 34-T
To Employers: Employers Life Insurance Company of Wausau
c/o Nationwide Life Insurance Company
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000-0000
Attn: Real Estate Investments 34-T
To Maker: Solo Serve Corporation
0000 Xxxxxxxxx Xxxx.
Xxx Xxxxxxx, Xxxxx 00000-0000
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To Indemnitors: Xxxxxx/XxXxxxx, LLC
000 Xxxxxxx Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxx 00000
Xxxx X. Xxxxxx
000 Xxxxxxx Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxx 00000
or to such other address or to the attention of such other person as hereafter
shall be designated in writing by the applicable party sent in accordance
herewith. Any such notice or communication shall be deemed to have been given
either at the time of personal delivery or, in the case of delivery service or
mail, as of the date of first attempted delivery at the address and in the
manner provided herein, or in the case of telegram, telex or telecopy, upon
receipt; provided that, service of a notice required by Tex. Property Code
Section 51.002 shall be considered complete when the requirements of that
statute are met.
14. Release of Lender. Maker, Borrower and Indemnitors each
hereby release, remise, acquit and forever discharge Lender, together with
their employees, agents, representatives, consultants, attorneys, fiduciaries,
servants, officers, directors, partners, predecessors, successors and assigns,
subsidiary corporations, parent corporations, and related corporate divisions
(all of the foregoing hereinafter called the "Released Parties"), from any and
all actions and causes of action, judgments, executions, suits, debts, claims,
demands, liabilities, obligations, damages and expenses of any and every
character, known or unknown, direct and/or indirect, at law or in equity, of
whatsoever kind or nature, whether heretofore or hereafter accruing, for or
because of any matter or things done, omitted or suffered to be done by any of
the Released Parties prior to and including the date hereof, and in any way
directly or indirectly arising out of or in any way connected to this
Agreement, the Note, the Deed of Trust, the Assignment of Leases and Rents or
any other Loan Document, or any of the transactions associated therewith, or
the Property, including specifically but not limited to claims of usury.
15. Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if all parties hereto had signed the same
document. All such counterparts shall be construed together and shall
constitute one instrument, but in making proof hereof it shall only be
necessary to produce one such counterpart.
16. Severability of Provisions. If any covenant, condition, or
provision herein contained is held to be invalid by final judgment of any court
of competent jurisdiction, the invalidity of such covenant, condition, or
provision shall not in any way affect any other covenant, condition or
provision herein contained.
17. Time of the Essence. It is expressly agreed by the parties
hereto that time is of the essence with respect to this Agreement.
18. Representation by Counsel. The parties acknowledge and
confirm that each of their respective attorneys have participated jointly in
the review and revision of this Agreement and that it has not been written
solely by counsel for one party. The parties hereto therefore stipulate and
agree that the rule of construction to the effect that any ambiguities are to
or may be resolved against the drafting party shall not be employed in the
interpretation of this Agreement to favor either party against the other.
19. Governing Law. This Agreement and the rights and duties of
the parties hereunder shall be governed for all purposes by the law of the
State of Texas and the law of the United States applicable to transactions
within said State.
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20. Successors and Assigns. The terms and provisions hereof shall
be binding upon and inure to the benefit of the parties hereto, their heirs,
personal representatives, successors and assigns.
21. Paragraph Headings. The paragraph headings set forth in this
Agreement are for the convenience of the parties only, and shall in no way
enlarge or limit the scope or meaning of the various and several paragraphs in
this Agreement.
IN WITNESS WHEREOF, this Agreement is executed on the dates of
acknowledgment below but is effective as of the date first above written.
BORROWER:
XXXXXX/XxXXXXX 1, LTD.,
a Texas limited partnership
By Xxxxxx/XxXxxxx, LLC, a Texas
limited liability company,
General Partner
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
-------------------------------
Title: President
------------------------------
MAKER:
SOLO SERVE CORPORATION, a
Delaware corporation
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
----------------------------------
Title: Executive Vice President
---------------------------------
INDEMNITORS:
XXXXXX/XxXXXXX, LLC, a
Texas limited liability company
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
----------------------------------
Title: President
---------------------------------
/s/ Xxxx X. Xxxxxx
------------------------------------------
XXXX X. XXXXXX
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LENDER:
NATIONWIDE LIFE INSURANCE COMPANY,
an Ohio corporation
By: /s/ Xxxxxx X. XxXxxxxxxx
----------------------------------------
Name: Xxxxxx X. XxXxxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
EMPLOYERS LIFE INSURANCE COMPANY OF
WAUSAU, a Wisconsin corporation
By: /s/ Xxxxxx X. XxXxxxxxxx
----------------------------------------
Name: Xxxxxx X. XxXxxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
