EXHIBIT 2.1
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT (this "Agreement") is made and entered
into effective for all purposes and all respects as of the 1st day of January,
1995 by ▇▇▇▇▇▇▇▇▇▇ CORPORATION, a Delaware corporation, whose address is ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Pledgor"), and THE A.J. 1989
TRUST, whose address is c/o Mentmore Holdings, Corp., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Secured Party").
WHEREAS, Secured Party has indicated to Pledgor that it may consider
loaning in the future, in its sole and absolute discretion, funds to Pledgor, up
to a maximum aggregate amount of One Million Dollars ($1,000,000.00), pursuant
to the form of Promissory Note (Line of Credit) attached hereto as Exhibit A and
made a part hereof (such form, as executed, and/or any renewal, replacement,
substitution thereto, as any of the foregoing may be amended from time to time,
shall hereinafter be referred to as the "Credit Note"), subject to the terms and
conditions hereinafter set forth, for the purpose of acquiring in the future
from time to time shares of Common Stock of Texfi Industries, Inc. (such shares
and/or the stock certificate(s) representing such shares shall hereinafter be
referred to as the"Stock"), a Delaware corporation ("Texfi");
WHEREAS, as a material inducement to Secured Party to make (or otherwise
consider making) such loans to Pledgor hereunder and as collateral for the
payment of principal, interest and other sums due under such loans, Pledgor has
agreed to grant Secured Party a security interest in and to the Stock.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
herein contained and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Indebtedness.
(a) At any time or from time to time prior to December 31, 2001, Secured
Party agrees to consider loaning, in its sole and absolute discretion, funds to
Pledgor, up to a maximum aggregate amount of One Million Dollars
($1,000,000.00), subject to the provisions provided herein (any such funds
advanced or readvanced hereunder being hereinafter referred to collectively as
the "Indebtedness").
(b) Nothing herein shall grant to Pledgor (or any other party) any right to
demand Secured Party to make any loans hereunder, and it is expressly understood
and agreed that Secured Party has the sole and absolute discretion to decide
whether or
not to advance any funds pursuant to this Agreement and can unilaterally impose
any condition or requirement not stated in this Agreement as an additional
condition for making any such loans.
(c) It is understood and agreed that, as funds are advanced from time to
time to Pledgor by Secured Party, such Indebtedness shall be evidenced by the
Credit Note payable to Secured Party and secured by the "Collateral" (as defined
below).
2. Grant of Security Interests.
(a) Pledgor hereby grants, pledges, assigns and transfers unto Secured
Party a security interest in and to all of Pledgor's right, title and interest
in and to the Stock (including, but not limited to, Pledgor's account numbered
▇▇▇- ▇▇▇-▇▇-▇▇ at ▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇ ▇▇▇▇▇▇"), whose business address is ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, or any subsequent account
wherein the Stock is held for the account of Pledgor), together with all right,
title and interest of Pledgor in and to any proceeds, increases, substitutions,
replacements, additions and accessions thereof and thereto (hereinafter
collectively referred to as the "Collateral").
(b) As additional security for the payment of principal, interest and other
sums due under the Credit Note, the Collateral is hereby absolutely,
unconditionally and irrevocably granted, pledged and assigned to Secured Party.
(c) In furtherance of and not in limitation of the foregoing, any and all
income, proceeds and/or distributions with respect to the Stock and/or the
Collateral shall be immediately paid over to Secured Party upon receipt by
Pledgor and, in connection therewith, Secured Party shall have the right to
instruct the respective payor thereunder to make any and all such payments
directly to Secured Party until the Indebtedness (including, any and all
interest, fees and expenses) is repaid in full.
(d) Pledgor hereby covenants and agrees that, upon the acquisition of any
Stock, Pledgor shall immediately (i) provide the Secured Party with written
notice of such acquisition and (ii) deliver or cause to be delivered to Secured
Party (A) (1) possessions of the Stock and (2) a duly executed Collateral
Assignment Separate From Certificate (Stock Power) in the form attached hereto
as Exhibit B and made a part hereof, and/or (B) any pledge, escrow or other
security agreement which is satisfactory to Secured Party and, if necessary,
entered into by ▇▇▇▇▇ ▇▇▇▇▇▇ [or any other subsequent holder of the Stock for
Pledgor's account (such holder being hereinafter referred to as "Broker")], if
it appears necessary or advisable in the opinion of Secured Party to establish,
maintain and/or continuously
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perfect a valid and enforceable first priority security interest in the Stock
(it being understood, however, that any such delivery shall be deemed to have
been made and be effective immediately upon Pledgor's acquisition of the Stock,
directly or by and through Broker, which Stock shall be deemed to be held in
constructive trust by Pledgor (or such Broker, as the case may be) for the
benefit of Secured Party until such possession and/or delivery actually occurs);
provided, however, that, no such pledge of the Stock hereunder shall be deemed
to have accrued or be deemed effective until such Stock has been acquired by
Pledgor.
3. Pledgor's Representations, Warranties and Covenants. Pledgor represents,
warrants and covenants, which representations, warranties, and covenants shall
survive execution and delivery of this Agreement, as follows:
(a) Use of Proceeds. Pledgor shall use the Indebtedness solely for the
purpose of, and to the fullest extent necessary to, acquire the Stock.
(b) Enforceability; Priority. Pledgor is the legal and beneficial
owner of the Collateral and has the full, absolute and entire right, power
and authority to execute and deliver this Agreement and to grant the
security interest in the Collateral hereunder. The security interest
granted to Secured Party hereunder in and to the Collateral constitutes a
valid and enforceable first priority security interest therein and is
subject to no mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), preference, priority
or other security agreement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC
of any jurisdiction, or any other similar recording or notice statute, and
any lease having substantially the same effect as any of the foregoing)
(the "Liens") that have been created by or are arising through Pledgor,
except for the Liens expressly set forth in this Agreement. Secured Party
is entitled to all the rights, priorities, benefits and remedies of a
secured party afforded by the Uniform Commercial Code of the State of
Florida or any other applicable jurisdiction (the "UCC").
(c) No Liens. Except for the Liens expressly set forth in this
Agreement, Pledgor shall not grant to any individual, partnership, joint
venture, firm, corporation, association, trust, or other enterprise or any
government or political subdivision or any agency, department, or
instrumentality thereof (a "Person") any lien or otherwise pledge or
encumber the Collateral, nor shall Pledgor sell, assign, transfer or
otherwise dispose of the Collateral, without the
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express written consent of Secured Party exercised in its sole discretion.
(d) Further Actions. Pledgor agrees, at its sole cost and expense, to
acknowledge, execute and deliver to Secured Party and, if appropriate,
record such financing statements and such other instruments, documents
and/or notices as Secured Party may from time to time reasonably request or
as are necessary in the opinion of Secured Party to establish, maintain
and/or continuously perfect a valid and enforceable security interest in
the Collateral as provided herein and the other rights and security
contemplated herein [including, but not limited to, any pledge, escrow or
other security agreement which is satisfactory to Secured Party and entered
into by Broker (or any other subsequent holder of the Stock for Pledgor's
account)] all in accordance with the UCC and all other applicable laws as
enacted in any and all relevant jurisdictions or any other relevant law.
Pledgor will pay any applicable filing fees and related expenses.
(e) Attorney-in-Fact. So long as this Agreement remains in existence,
Secured Party is absolutely, irrevocably and unconditionally constituted
and appointed the true and lawful attorney-in-fact, in Pledgor's name or
otherwise, to pursue and enforce all and any rights of Pledgor in and to
the Collateral, such power of attorney being coupled with an interest so
long as this Agreement shall remain in effect.
(f) Absolute Rights. This Agreement shall be construed as absolute,
continuing and unlimited with respect to the covenants, conditions and
obligations contained herein, without regard to regularity, validity,
enforceability or any change, modification or amendment of any liability or
obligation of Secured Party. Further, Secured Party may exercise its rights
with respect to the Collateral without any necessity on its part or on the
part of the holder of any obligation secured hereby first to realize upon
or enforce any of the security now or hereafter held for any such
obligation, and Pledgor hereby waives (i) any right to require Secured
Party to proceed against any person or to pursue any other remedy and (ii)
all suretyship defenses or other defenses in the nature thereof.
4. Events of Default. The following shall constitute Events of Default
under this Agreement:
(a) Pledgor shall fail to pay to Secured Party any amount due Secured
Party under any term or provision of the Credit Note which has not been
cured within ten (10) days after written notice to Pledgor of such default;
(b) any representation, warranty or statement made by Pledgor herein
or in any certificate delivered pursuant hereto shall prove to be untrue in
any material respect on the date as
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of which made or being made which has not been (or cannot be) cured within
ten (10) days after written notice to Pledgor of such breach;
(c) Pledgor shall default in the performance or observance by it of
any other term, covenant or agreement contained in this Agreement, the
Credit Note or any other document executed in connection herewith or
otherwise securing the Indebtedness, and the same is not cured within ten
(10) days after written notice of such default is given to Pledgor or, with
respect to any default which cannot be reasonably cured within ten (10)
days, if Pledgor fails to proceed within ten (10) days to commence curing
such default and thereafter to proceed with all due diligence to
substantially cure such default within forty-five (45) days thereafter; or
(d) Pledgor shall commence a voluntary case concerning itself under
Title 11 of the United States Code entitled "Bankruptcy", as now or
hereafter in effect, or any successor thereto (the "Bankruptcy Code"); or
an involuntary case is commenced against Pledgor and the petition is not
controverted within ten (10) days, or is not dismissed within sixty (60)
days, after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or substantially
all of the property of Pledgor, or Pledgor commences any other proceeding
under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency, or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to Pledgor, or
there is commenced against Pledgor any such proceeding which remains
undismissed for a period of sixty (60) days, or Pledgor is adjudicated
insolvent or bankrupt; or any order of relief or other order approving any
such case or proceeding is entered; or Pledgor suffers any appointment of a
custodian or the like for it or any substantial part of its properties to
continue undischarged or unstayed for a period of sixty (60) days; or
Pledgor makes a general assignment for the benefit of creditors; or any
corporate action is taken by Pledgor for the purposes of effecting any of
the foregoing.
5. Remedies. Pledgor agrees that, if any Event of Default shall have
occurred and be continuing, then and in every such case, subject to (i) any
continuing rights of the holders of pre-existing Liens identified in this
Agreement and (ii) any mandatory requirements of applicable law then in effect,
Secured Party may avail itself of any legal or equitable rights or remedies of a
secured creditor under the UCC and/or any other applicable law now or hereafter
existing.
6. Waiver of Claims. Except as otherwise provided in this Agreement,
PLEDGOR HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NOTICE
AND JUDICIAL HEARING IN CONNECTION WITH
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SECURED PARTY'S TAKING POSSESSION OR SECURED PARTY'S DISPOSITION OF ANY OF THE
COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING
FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT WHICH PLEDGOR WOULD
OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR OF
ANY STATE, and Pledgor hereby further waives, to the fullest extent permitted by
law:
(a) all damage occasioned by such taking of possession except any
damages which are the direct result of Secured Party's gross negligence or
misconduct;
(b) all other requirements as to the time, place and terms of sale or
other requirements with respect to the enforcement of Secured Party's
rights hereunder; and
(c) all rights of redemption, stay, extension or moratorium now or
hereafter in force under any applicable law in order to prevent or delay
the enforcement of this Agreement or absolute sale of the Collateral or any
portion thereof, and Pledgor, for itself and all who may claim under him,
insofar as he now or hereafter lawfully may, hereby waives the benefit of
all such laws.
Any sale of, or the grant of options to purchase, or any other realization upon,
any Collateral shall operate to divest all right, title, interest, claim and
demand, either at law or in equity, of Pledgor therein and thereto, and shall be
a perpetual bar both at law and in equity against Pledgor and against any and
all Persons claiming or attempting to claim the Collateral so sold, optioned or
realized upon, or any part thereof, from, through and under Pledgor.
7. Application of Proceeds. The proceeds of any Collateral shall be applied
as follows:
(a) to the payment of any and all reasonable expenses and fees
(including reasonable attorneys' fees) incurred by Secured Party in
obtaining and disposing of Collateral;
(b) next, any surplus then remaining to the payment of the
Indebtedness; and
(c) if no part of the Indebtedness is outstanding and in default, any
surplus then remaining shall be paid to Pledgor, subject however, to the
rights of the holder of any then existing Lien of which Secured Party has
actual notice (without investigation);
it being understood that Pledgor shall remain liable to the extent of any
deficiency between the amount of the proceeds of the Collateral and the
aggregate amount of the sums referred to
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in clauses (a) and (b) of this Paragraph 7 with respect to Secured Party.
8. Remedies Cumulative. No failure or delay on the part of Secured Party in
exercising any right, power or privilege hereunder and no course of dealing
between Pledgor and Secured Party shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, power, or privilege hereunder
preclude any other right, power or privilege hereunder or thereunder. The
rights, powers and remedies herein expressly provided are cumulative and not
exclusive of any rights, powers or remedies which Secured Party would otherwise
have.
9. Discontinuance of Proceedings. In case Secured Party shall have
instituted any proceeding to enforce any right, power or remedy under this
Agreement by foreclosure, sale or otherwise, and such proceeding shall have been
discontinued or abandoned for any reason or shall have been determined adversely
to Secured Party, then and in every such case Pledgor and Secured Party shall be
restored to their former positions and the rights hereunder with respect to the
Collateral subject to the security interest created under this Agreement, and
all rights, remedies and powers of Secured Party, shall continue as if no such
proceeding had been instituted.
10. Additional Rights. The rights of Secured Party under this Agreement
shall be in addition to all rights and benefits at law or in equity inuring to
Secured Party with respect to the Credit Note, the Indebtedness and any
documents relating thereto.
11. Notices. All notices to be given under this Agreement shall be deemed
given when delivered by hand, by facsimile or other similar transition, by a
nationally recognized overnight courier, or when sent by certified or registered
mail, return receipt requested, and addressed to the party's address set forth
opposite such party's signature below, or if sent otherwise be deemed given when
actually received. Either party may change its address for notices by delivery
and receipt of a notice thereof to the other party.
12. Waiver; Amendment. This Agreement may be changed, waived, discharged,
or terminated only by an instrument in writing signed by the party against whom
enforcement of such change, waiver, discharge or termination is sought.
13. Obligations Absolute. The obligations of Pledgor under this Agreement
shall be absolute and unconditional and shall remain in full force and effect
without regard to, and shall not be released, suspended, discharged, terminated
or otherwise affected by, any circumstances or occurrence whatsoever, including,
without limitation: (a) any renewal, extension, amendment or modification of, or
addition or supplement to or
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deletion from, any agreement or invoice relating to the Collateral or any other
instrument or agreement referred to therein, or any assignment or transfer of
any thereof; (b) any waiver, consent, extension, indulgence or other action or
inaction under or in respect of any such instrument or agreement or this
Agreement or any exercise or non-exercise of any right, remedy, power or
privilege under or in respect of this Agreement; (c) any furnishing of any
additional security to Secured Party or any acceptance thereof or any sale,
exchange, release, surrender or realization of or upon any security by Secured
Party; or (d) any invalidity, irregularity or unenforceability of all or part of
the Collateral.
14. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the respective successors and assigns of
the parties hereto; provided, however, that Pledgor may not assign or transfer
any of its rights or obligations hereunder without the prior written consent of
Secured Party. All agreements, statements, representations and warranties made
by Pledgor herein or in any certificate or other instrument delivered by Pledgor
or on its behalf under this Agreement shall be considered to have been relied
upon by Secured Party and shall survive the execution and delivery of this
Agreement regardless of any investigation made by Secured Party.
15. Headings Descriptive, Etc. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
16. Governing Law. This Agreement and the rights and obligations of the
parties hereunder shall at all times and in all respects be construed in
accordance with and be governed by the laws of the State of Florida.
17. Pledgor's Duties. It is expressly agreed, anything herein contained to
the contrary notwithstanding, that Pledgor shall remain liable to perform all of
the obligations, if any, assumed by it with respect to the Collateral, and
Secured Party shall not be required or obligated in any manner to perform or
fulfill any of the obligations of Pledgor under or with respect to any
Collateral.
18. Preamble; Exhibits. The preamble hereto is hereby incorporated herein
and, by this reference, made a part hereof. Similarly, Exhibits A and B are
hereby incorporated herein and, by this reference, made a part hereof.
[Signatures appear on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal as of the date set first set forth above.
PLEDGOR:
WITNESS/ATTEST: ▇▇▇▇▇▇▇▇▇▇ CORPORATION, a Delaware
corporation
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
President
[Corporate Seal]
SECURED PARTY:
WITNESS: THE A.J. 1989 TRUST
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
2
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EXHIBIT A
TO
LOAN AND SECURITY AGREEMENT
PROMISSORY NOTE (LINE OF CREDIT)
$1,000,000.00 District of Columbia
Date: January 1, 1995
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇▇▇▇▇ CORPORA- TION, a Delaware
corporation ("Maker"), hereby promises to pay to the order of THE A.J. 1989
TRUST ("Payee") the principal sum of ONE MILLION DOLLARS ($1,000,000.00), or so
much thereof as may be advanced and/or readvanced hereunder and remain unpaid,
together with accrued interest at the rate hereinafter set forth, on the unpaid
principal balance hereof from time to time outstanding (the "Principal
Balance"), at the rates applicable from time to time before maturity, as set
forth in this Promissory Note (this "Note").
1. Revolving Loan. This Note evidences a revolving loan. Advances and
readvances shall be made hereunder as provided in that certain Loan and Security
Agreement dated as of January 1, 1995 between Maker and Payee (the "Loan and
Security Agreement"). The entire unpaid principal balance, together with accrued
and unpaid interest thereon, and all other obligations of Maker hereunder, if
not sooner paid, shall be due and payable in full on December 31, 2001 (the
"Maturity Date").
2. Rate of Interest. This Note shall bear interest (computed on the basis
of the actual number of days elapsed over a 365-day year) until the Maturity
Date on the Principal Balance at a rate equal to nine percent (9%) per annum
(the "Interest Rate").
3. Payments. Interest only, commencing as of the date hereof and calculated
at the Interest Rate on the Principal Balance, shall be due and payable annually
on the thirty-first (31st) day of each December during the term of this Note
commencing on the thirty-first (31st) day of December, 1995, except that the
last such payment of interest only shall be due and payable on the Maturity
Date, and on each such interest payment date there shall be due and payable all
interest accrued to that date; provided, however, that Payee shall have the
absolute right (but not the obligation), in its sole discretion, to add to the
Principal Balance at any time or from time to time any accrued interest then due
and payable hereunder and treat the same as an advance under this Note, without
notice to or demand upon Maker. The entire Principal Balance hereof, and all
accrued but unpaid interest, if any, shall be due and payable in full on the
Maturity Date.
Payments made on account hereof shall, at Payee's option, be applied first (1st)
to the payment of any late charges accrued and due and other costs and expenses,
if any, then to accrued and unpaid interest, and the remainder of each payment
shall be applied to unpaid principal.
Maker may prepay the Principal Balance or any part thereof, with accrued
interest to the date of such prepayment, at any time, without penalty or
premium. Prepayments shall not postpone or reduce any regular payments of
interest, but shall be credited to installments of principal, if any, in their
order of maturity.
4. Guaranty. Maker hereby unconditionally guarantees the due performance
and prompt payment, whether on the Maturity Date or by acceleration or
otherwise, of the full principal balance of this Note, together with interest
calculated as aforesaid, and all reasonable legal or other costs incurred by
Payee in the enforcement thereof against Maker.
5. Event of Default. It is expressly agreed that time is of the essence for
all purposes of this Note. Either (i) the failure of Maker to make any payment
of the interest or the Principal Balance on this Note as and when due and
payable which failure is not fully cured within ten (10) days after written
notice thereof from Payee; (ii) the making by Maker of a general assignment for
the benefit of creditors; (iii) the appointment of a custodian for Maker; (iv)
the commencement of any proceeding by Maker for relief under any Federal
bankruptcy law or any state insolvency or similar law; (v) the commencement of
any proceeding against Maker under any Federal bankruptcy law or any state
insolvency or similar law, which proceeding is not dismissed within sixty (60)
days; or (vi) any Event of Default under the Loan and Security Agreement, shall
constitute an event of default hereunder (each, an "Event of Default"). Upon the
occurrence of an Event of Default, or at any time thereafter during the
continuance of any such Event of Default, Payee may, with or without notice to
Maker, declare this Note to be immediately due and payable, as to the unpaid
Principal Balance, any accrued interest, late charges and any expenses, costs
and/or damages provided for herein, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived.
6. Security Agreements. This Note is made pursuant to the Loan and Security
Agreement and is or may be secured by (i) financing statements by Maker, as
debtor, and Payee, as secured party, and (ii) any other instruments now or
hereafter executed by Maker in favor of Payee which in any manner constitute
additional security for this Note (the foregoing documents, including the Loan
and Security Agreement, are hereinafter collectively referred to as the "Loan
Documents"). All of the terms, covenants, conditions and provisions of the Loan
Documents are hereby incorporated in and
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made a part of this Note to the same extent as if herein set forth in full.
7. Outstanding Principal Amount. The face amount of this Note is the
principal sum of One Million Dollars ($1,000,000.00). Each advance and readvance
by Payee hereunder shall be evidenced by this Note, and any repayments of
principal by Maker shall be credited against the Principal Balance due on this
Note, but shall not extinguish this Note in whole or in part. The Principal
Balance due on this Note may increase and decrease as advances, readvances and
payments are made hereunder, pursuant to the Loan and Security Agreement
(including amendments and supple- ments thereto) between Maker and Payee hereof,
and this Note shall evidence all of the indebtedness of Maker hereunder from
time to time existing pursuant to said Loan and Security Agreement, including
readvances of sums already paid. The aggregate principal advances and readvances
under this Note may exceed the face amount hereof, but the Principal Balance
hereunder at any given time shall not exceed the face amount hereof, it being
understood and agreed that Payee hereof does not intend to make any loans to
Maker that are not secured by the Loan and Security Agreement and that each and
every advance and readvance made at present or hereafter to Maker shall be
deemed to be a fully secured advance evidenced by this Note.
8. Waivers. Maker hereby waives demand, presentment for payment, notice of
dishonor, protest and notice of protest and diligence in collection or bringing
suit and agrees that Payee may accept partial payment without discharging the
obligations evidenced hereby.
9. Attorneys' Fees and Costs; Waiver of Jury Trial. Maker agrees to pay all
reasonable attorneys' fees and costs incurred by Payee in collecting or
attempting to collect this Note, whether by suit or otherwise. MAKER HEREBY
EXPRESSLY WAIVES ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL ACTION
BROUGHT BY PAYEE TO COLLECT THIS NOTE.
10. Applicable Law; Assigns. This Note shall be governed by, and construed
in accordance with, the laws of the State of Florida. As used herein, Maker and
Payee shall be deemed to include their respective successors, legal
representatives and assigns, whether by voluntary action of the parties or by
operation of law.
11. Default Rate of Interest. Any late payment of interest or the Principal
Balance (whether on the Maturity Date or by acceleration of this Note as
provided in Section 5) shall bear interest from the due date of such payment
until paid at the Interest Rate plus five percent (5%) (the "Default Rate of
Interest").
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12. Highest Lawful Rate. Anything herein to the contrary notwithstanding,
the obligations of Maker hereunder shall be subject to the limitation that to
the extent that contracting for or receipt of interest at the Default Rate of
Interest hereunder would be contrary to provisions of any law applicable to
Payee limiting the highest rate of interest which may be lawfully contracted
for, charged or received by Payee, such amount which would exceed the highest
lawful rate shall be applied to the reduction of the Principal Balance due
hereunder and not to the payment of interest at the Default Rate of Interest.
13. Notices. Any notice to the parties provided for in this Note shall be
given hand delivered, with receipt thereof, or sent be certified or registered
mail, return receipt requested, and first-class postage prepaid, or by overnight
courier, to the address of the addressee party set forth in this paragraph 13,
unless notice of a change of address is given to all parties hereto pursuant to
the provisions of this paragraph 13. Notice shall be deemed effective upon
receipt. Notice shall be given to Maker at the following address:
▇▇▇▇▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and to Payee at the following address:
The A.J. 1989 Trust
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
c/o Mentmore Holdings Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
IN WITNESS WHEREOF, the undersigned has executed, sealed and delivered this
Note, intending to be bound legally, as of the date first above written.
MAKER:
WITNESS/ATTEST: ▇▇▇▇▇▇▇▇▇▇ CORPORATION, a
Delaware corporation
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
President
[Corporate Seal]
-4-
EXHIBIT B
TO
LOAN AND SECURITY AGREEMENT
STOCK POWER
COLLATERAL ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇▇▇▇▇ CORPORATION, a Delaware
corporation, does hereby grant, pledge, assign and transfer unto THE A.J. 1989
TRUST pursuant to that certain Loan and Security Agreement dated as of January
1, 1995 (as the same may be amended from time to time), the Stock Certificate(s)
representing _______________________________ (_____) shares of Common Stock of
Texfi Industries, Inc., a Delaware corporation (the "Corporation"), more fully
described below, standing in the undersigned's name on the books of the
Corporation, and does hereby irrevocably constitute and appoint any officer of
the Corporation the undersigned's attorney-in-fact and agent to transfer such
Stock Certificate(s) on the books of the Corporation with full power of
substitution in accordance with the foregoing.
This Collateral Assignment is made pursuant to the Loan and Security
Agreement.
Dated: _______________
Stock Certificate No.(s): [▇▇▇▇▇ ▇▇▇▇▇▇ Account #▇▇▇-▇▇▇-▇▇-▇▇]
Number of Shares: __________________
In the Presence of: ▇▇▇▇▇▇▇▇▇▇ CORPORATION, a
Delaware corporation
_________________________ By____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
President
[Corporate Seal]
SIGNATURE GUARANTY:
-10-
STOCK POWER
COLLATERAL ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇▇▇▇▇ CORPORATION, a Delaware
corporation, does hereby grant, pledge, assign and transfer unto THE A.J. 1989
TRUST pursuant to that certain Loan and Security Agreement dated as of January
1, 1995 (as the same may be amended from time to time), the Stock Certificate(s)
representing Sixty-Three Thousand (63,000) shares of Common Stock of Texfi
Industries, Inc., a Delaware corporation (the "Corporation"), more fully
described below, standing in the undersigned's name on the books of the
Corporation, and does hereby irrevocably constitute and appoint any officer of
the Corporation the undersigned's attorney-in-fact and agent to transfer such
Stock Certificate(s) on the books of the Corporation with full power of
substitution in accordance with the foregoing.
This Collateral Assignment is made pursuant to the Loan and Security Agreement.
Dated: January 31, 1995
Stock Certificate No.(s): [▇▇▇▇▇ ▇▇▇▇▇▇ Account #▇▇▇-▇▇▇-▇▇-▇▇]
Number of Shares: 63,000
In the Presence of: ▇▇▇▇▇▇▇▇▇▇ CORPORATION, a
Delaware corporation
_________________________ By____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
President
[Corporate Seal]
SIGNATURE GUARANTY:
-11-
STOCK POWER
COLLATERAL ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇▇▇▇▇ CORPORATION, a Delaware
corporation, does hereby grant, pledge, assign and transfer unto THE A.J. 1989
TRUST pursuant to that certain Loan and Security Agreement dated as of January
1, 1995 (as the same may be amended from time to time), the Stock Certificate(s)
representing Fifty-Five Thousand Three Hundred (55,300) shares of Common Stock
of Texfi Industries, Inc., a Delaware corporation (the "Corporation"), more
fully described below, standing in the undersigned's name on the books of the
Corporation, and does hereby irrevocably constitute and appoint any officer of
the Corporation the undersigned's attorney-in-fact and agent to transfer such
Stock Certificate(s) on the books of the Corporation with full power of
substitution in accordance with the foregoing.
This Collateral Assignment is made pursuant to the Loan and Security Agreement.
Dated: February 28, 1995
Stock Certificate No.(s): [▇▇▇▇▇ ▇▇▇▇▇▇ Account # ▇▇▇-▇▇▇-▇▇-▇▇]
Number of Shares: 55,300
In the Presence of: ▇▇▇▇▇▇▇▇▇▇ CORPORATION, a
Delaware corporation
_________________________ By____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
President
[Corporate Seal]
SIGNATURE GUARANTY:
-12-
STOCK POWER
COLLATERAL ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇▇▇▇▇ CORPORATION, a Delaware
corporation, does hereby grant, pledge, assign and transfer unto THE A.J. 1989
TRUST pursuant to that certain Loan and Security Agreement dated as of January
1, 1995 (as the same may be amended from time to time), the Stock Certificate(s)
representing Sixty-Three Thousand Five Hundred (63,500) shares of Common Stock
of Texfi Industries, Inc., a Delaware corporation (the "Corporation"), more
fully described below, standing in the undersigned's name on the books of the
Corporation, and does hereby irrevocably constitute and appoint any officer of
the Corporation the undersigned's attorney-in-fact and agent to transfer such
Stock Certificate(s) on the books of the Corporation with full power of
substitution in accordance with the foregoing.
This Collateral Assignment is made pursuant to the Loan and Security Agreement.
Dated: March 31, 1995
Stock Certificate No.(s): [▇▇▇▇▇ ▇▇▇▇▇▇ Account #▇▇▇-▇▇▇-▇▇-▇▇]
Number of Shares: 63,500
In the Presence of: ▇▇▇▇▇▇▇▇▇▇ CORPORATION, a
Delaware corporation
_________________________ By____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
President
[Corporate Seal]
SIGNATURE GUARANTY:
-13-