AGREEMENT FOR ASSIGNMENT OF PROMISSORY NOTE, UCC FINANCING
STATEMENT AND RELATED COLLATERAL DOCUMENTS AND INTERESTS
THIS AGREEMENT FOR ASSIGNMENT OF PROMISSORY NOTE. UCC FINANCING STATEMENT
AND RELATED COLLATERAL DOCUMENTS AND INTERESTS ("Agreement") is made and entered
into this 26th day of August, 2005 by and between U.S. Bank, N.A. ("the Bank")
and Xxxxx X. XxXxxxx and Xxxx Xxxx XxXxxxx ("Purchasers"). The Bank and
Purchasers are sometimes hereinafter referred to as ("the Parties").
Recitals
A. On or about February 24, 2004, Image Software, Inc. ("Borrower") and
the Bank entered into a lending agreement (the "Loan") evidenced by that
Revolving Credit Note of said date in the original principal sum of $200,000.00
(the "Note").
B. The full and faithful performance of the Note is secured by that
certain Business Security Agreement ("Security Agreement") dated February 24,
2004 executed and delivered by Image Software, Inc., for the benefit of the
Bank. The Business Security Agreement security interest is reflected in a UCC
Financing Statement which Statement was recorded on March 5, 2004 in the records
of the Secretary of State as reception number 2004F023558 (the "UCC Financing
Statement).
C. The Note, Security Agreement, Debt and Security Interest Subordination
Agreement and UCC Financing Statement are hereinafter collectively referred to
as the "Agreement Documents."
D. WHEREAS, Purchasers desire to purchase from the Bank, and the Bank
desires to sell to Purchasers, without recourse, all of the Bank's rights, title
and interest, in and to the Agreement Documents on the terms described below.
NOW, THEREFORE, the parties agree as follows:
1. Preamble; Preliminary Recitals. The preamble and preliminary recitals
set forth above are by this reference incorporated in and made a part of this
Agreement,
2. Purchase of Assets. Subject to the provisions of this Agreement,
Purchasers agree to purchase, and The Bank agrees to sell, without recourse, all
of the Bank's rights, title and interest, in and to: (a) the Agreement Documents
as defined above; (b) all indebtedness under the Agreement Documents, and (c)
all causes of action related to the Agreement Documents (all of which are
hereinafter, collectively referred to as the "Purchased Assets"). The Purchased
Assets do not include any other assets of the Bank and specifically exclude: (i)
cash; (ii) any accounting related books and records, whether written or
electronically recorded; (iii) causes of action not related to the Purchased
Assets; (iv) deposits and (v) any personal property interests subject to any
security interest in favor of a third party.
3. Purchase Price. The purchase price for the Purchased Assets shall be
One Hundred Forty Nine Thousand One Hundred Thirty Five and 43/100ths Dollars
($149,135.43) ("Purchase Price"). The Purchase Price is payable upon the date
and at the time of Closing.
4. Closing. The consummation of the purchase and sale of the Purchased
Assets (the "Closing") shall be held on August 26, 2005 or sooner by mutual
agreement of the parties at the Bank's branch office located at Denver Tech
Center Office, 0000 X. Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000. At Closing,
Purchasers shall pay to the Bank the Purchase Price, in Good Funds.
5. Delivery and Condition of the Purchased Assets.
a. Immediately upon the delivery to the Bank of Good Funds in the
amount of the Purchase Price by Purchasers at the Closing, the Bank shall
deliver to Purchaser an original Allonge assigning the Note in the form attached
hereto as Exhibit A. Additionally, after the closing, the Bank will obtain the
original Note and deliver the original Note to Purchasers. Upon the execution
and delivery of the aforesaid Allonge and original documents, the Bank shall be
deemed to have fully and completely transferred to Purchasers all its rights,
title and interest in, as well as possession, custody and control of the
Purchased Assets. The Bank shall not be liable or responsible for any
liabilities or obligations of any kind or nature whatsoever arising out of,
under, or related to the Purchased Assets from and after the Closing.
b. The Bank represents to Purchasers, as the Bank's sole
representation in connection with this Agreement, is as follows:
The Bank is the holder of the Agreement Documents and has not transferred
any interest therein to any other person or entity.
c. Purchasers agree that they are purchasing and shall take possession,
except as otherwise provided herein, of the Purchased Assets in their AS IS,
WHERE IS condition and acknowledges that it has previously been given the
opportunity to and has conducted such investigations and inspections of the
Purchased Assets, and the transactions underlying the Purchased Assets, as it
has deemed necessary or appropriate for the purposes of this Agreement.
Purchasers represent and acknowledge that its decisions to enter into and close
this Agreement were and are based solely on Purchasers' own due diligence and
were not and are not the result of any reliance upon any representations of the
Bank, or any employee or agent thereof, except as are expressly set forth
herein.
d. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE BANK DOES NOT MAKE
ANY EXPRESS OR IMPLIED REPRESENTATIONS, STATEMENTS, WARRANTIES, OR CONDITIONS OF
ANY KIND OR NATURE WHATSOEVER CONCERNING THE AGREEMENT DOCUMENTS, INCLUDING
(WITHOUT LIMITING THE GENERALITY OF THE FOREGOING) ANY WARRANTIES REGARDING THE
CONDITION, QUANTITY AND/OR QUALITY OR VALUE OF ANY OR ALL OF THE AGREEMENT
DOCUMENTS AND ANY AND ALL IMPLIED WARRANTIES ARE HEREBY DISCLAIMED. FURTHER, THE
PURCHASERS EXPRESSLY ACKNOWLEDGE AND AGREE THAT NO REPRESENTATIONS HAVE BEEN
MADE BY THE BANK NOR HAVE PURCHASERS RELIED UPON ANY INFORMATION OTHER THAN ITS
OWN INVESTIGATION, IF ANY, AS TO THE PRIORITY OF ANY SECURITY INTEREST.
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ANY SALE, TRANSFER OR ASSIGNMENT OF THE AGREEMENT
DOCUMENTS PURSUANT TO THIS AGREEMENT IS WITHOUT RECOURSE.
6. Conditions Precedent to Closing. The obligation of performance by the
Purchasers under this Agreement is contingent upon the Purchasers' approval of
the Allonge attached hereto as Exhibit A, and such other due diligence as
determined by their sole discretion. The performance of Bank of its obligations
under this Agreement is further subject to the condition that the Bank has not,
on or before the Closing Date, received a tender of funds from or on behalf of
the parties obligated under the Agreement Documents sufficient to satisfy all
obligations thereunder.
7. Default by Bank. If the Bank fails to make the required deliveries at
the Closing or otherwise defaults under this Agreement, then Purchasers shall
have the right to terminate this Agreement and thereupon this Agreement shall he
null and void and of no legal effect whatsoever. If so terminated, each party
hereto shall suffer their own losses, costs, expenses or damages rising out of,
under or related to this Agreement.
8. Indemnity. Purchasers shall indemnify, defend and hold the Bank
harmless from and against any and all losses, liabilities, damages, costs and
obligations, or actions or claims in respect thereof including reasonable
counsel fees which the Bank may suffer or incur arising out of or based upon:
a. the breach of any representation, warranty, covenant or agreement
of Purchasers contained in this Agreement, and
b. the Purchasers' use of any of the Agreement Documents after the
Closing.
9. Miscellaneous. This Agreement may be executed by the parties hereto by
facsimile signature, any of which shall be deemed an original signature, and in
any number of separate counterparts all of which taken together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the Parties hereto have executed and delivered this
Agreement on the date first above written.
U.S. BANK, N.A.
By: /s/Xxxxx Xxxxx
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Xxxxx Xxxxx, as Vice President
/s/Xxxxx X. XxXxxxx
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Xxxxx X. XxXxxxx
/s/ Xxxx Xxxx XxXxxxx
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Xxxx Xxxx XxXxxxx
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ALLONGE
(Attached to and made a part of that certain Revolving Credit Note,
dated February 24, 2004, in the original principal amount of $200,000.00 from
Image Software, Inc. to U. S. Bank, N.A.)
Pay to the order of Xxxxx X. XxXxxxx and Xxxx Xxxx XxXxxxx, without
recourse or warranty in any event.
Dated: August 26, 2005
U.S. BANK, N.A.
By:/s/ Xxxxx Xxxxx
-----------------------------
Xxxxx Xxxxx, as Vice President
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For Bank Use Only Reviewed by ______________
Due FEBRUARY 24, 2005
Customer # 7521406900 Loan # __________
REVOLVING CREDIT NOTE
$ 200,000.00 FEBRUARY 24, 2004
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FOR VALUE RECEIVED, the undersigned borrower (the "Borrower"), promises to
pay to the order of U.S. BANK N.A. (the "Bank"), the principal sum of TWO
HUNDRED THOUSAND AND NO/1 0 Dollars ($ 200,000.00 ) payable FEBRUARY 24, 2005
(the "Maturity Date").
Interest.
The unpaid principal balance will bear interest at an annual rate equal to
1.750% plus the prime rate announced by the Bank.
The interest rate hereunder will be adjusted each time that the prime rate
changes.
Payment Schedule.
Interest is payable beginning MARCH 24, 2004, and on the same date of each
CONSECUTIVE month thereafter (except that if a given month does not have
such a date, the last day of such month), plus a final interest payment
with the final payment of principal.
Interest will be computed for the actual number of days principal is
unpaid, using a daily factor obtained by dividing the stated interest rate by
360.
Notwithstanding any provision of this Note to the contrary, upon any
default or at any time during the continuation thereof (including failure to pay
upon maturity), the Bank may, at its option and subject to applicable law,
increase the interest rate on this Note to a rate of 5% per annum plus the
interest rate otherwise payable hereunder. Notwithstanding the foregoing and
subject to applicable law, upon the occurrence of a default by the Borrower or
any guarantor involving bankruptcy, insolvency, receivership proceedings or an
assignment for the benefit of creditors, the interest rate on this Note shall
automatically increase to a rate of 5% per annum plus the rate otherwise payable
hereunder.
In no event will the interest rate hereunder exceed that permitted by
applicable law. If any interest or other charge is finally determined by a court
of competent jurisdiction to exceed the maximum amount permitted by law, the
interest or charge shall be reduced to the maximum permitted by law, and the
Bank may credit any excess amount previously collected against the balance due
or refund the amount to the Borrower,
Subject to applicable law, if any payment is not made on or before its due
date, the Bank may collect a delinquency charge of 0.00 % of the unpaid amount.
Collection of the late payment fee shall not be deemed to be a waiver of the
Bank's right to declare a default hereunder.
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Without affecting the liability of any Borrower, endorser, surety or
guarantor, the Bank may, without notice, renew or extend the time for payment,
accept partial payments, release or impair any collateral security for the
payment of this Note, or agree not to xxx any party liable on it.
This Revolving Credit Note constitutes the Note issued under a Revolving
Credit Agreement dated as of the date hereof between the Borrower and the Bank,
to which Agreement reference is hereby made for a statement of the terms and
conditions under which loans evidenced hereby were or may be made and a
description of the terms and conditions upon which the maturity of this Note may
be accelerated, and for a description of the collateral securing this Note.
This Note is a "transferablerecord" as defined in applicable law relating
to electronic transactions. Therefore, the holder of this Note may, on behalf of
Borrower, create a microfilm or optical disk or other electronic image of this
Note that is an authoritative copy as defined in such law. The holder of this
Note may store the authoritative copy of such Note in its electronic form and
then destroy the paper original as part of the holder's normal business
practices. The holder, on its own behalf, may control and transfer such
authoritative copy as permitted by such law.
All documents attached hereto, including any appendices, schedules,
riders, and exhibits to this Revolving Credit Note, are hereby expressly
incorporated by reference.
The Borrower hereby acknowledges the receipt of a copy of this Note.
(Individual Borrower) IMAGE SOFTWARE, INC.
-----------------------------------------
Borrower Name (Organization)
a COLORADO corporation
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By: /s/ XXXXX X. XXXXXXX
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Borrower Name N/A Xxxxx X. XxXxxxx, President
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Name and Title AUTHORIZED SIGNER, TITLE
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By
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Borrower Name N/A Name and Title
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