CHANGE IN TERMS AGREEMENT
| Principal | Loan Date | Maturity | Loan No | Call/Coll | Account | Officer | Initials | |||||||
| $2,000,000.00 | 09-16-2010 | 09-16-2011 | XXXXXX | 150/40 | XXXXXX | RDH | ||||||||
| References in the boxes above are for Xxxxxx’s use only and do not limit the applicability of
this document to any particular loan or item. Any item above containing “***” has been omitted due to text length limitations. |
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Borrower:
|
Xxxxxx Management, LLLP 000 Xxxxx Xxxx., #000 Xxxxxxxx, XX 00000-1557 |
Lender: | Citywide Banks PO Box 128 Aurora, CO 80040-0128 (000) 000-0000 |
Principal Amount: $2,000,000.00
|
Date of Agreement: September 16, 2010 |
DESCRIPTION OF EXISTING INDEBTEDNESS. Original Promissory Note in the amount of $2,000,000.00
dated September 16, 2009.
DESCRIPTION OF COLLATERAL. 1st Deed of Trust on property located at 0000
X. Xxxxx Xxx., Xxxxxx, XX 00000-0000.
1st Deed of Trust on property located at 0000 X. Xxxxxxxx Xxx., Xxxxxxxx, XX 00000-0000.
DESCRIPTION OF CHANGE IN TERMS. Effective September 16, 2010, the term of the Note is extended to
September 16, 2011. Effective September 16, 2010, the interest rate is modified as described in the VARIABLE INTEREST RATE section below.
PROMISE TO PAY. Xxxxxx Management, LLLP (“Borrower”) promises to pay to Citywide Banks (“Lender”),
or order, in lawful money of the United States of America, the principal amount of Two Million &
00/100 Dollars ($2,000,000.00) or so much as may be outstanding, together with interest on the
unpaid outstanding principal balance of each advance. Interest shall be calculated from the date of
each advance until repayment of each advance.
PAYMENT. Borrower will pay this loan in one payment of all outstanding principal plus all accrued
unpaid interest on September 16, 2011. In addition. Borrower will pay regular monthly payments of
all accrued unpaid interest due as of each payment date, beginning October 16, 2010, with all
subsequent interest payments to be due on the same day of each month after that. Unless otherwise
agreed or required by applicable law, payments will be applied first to any accrued unpaid
interest; then to principal; then to any unpaid collection costs; and then to any late charges.
Borrower will pay Lender at Xxxxxx’s address shown above or at such other place as Lender may
designate in writing.
VARIABLE INTEREST RATE. The interest rate on this loan is subject to change from time to time based
on changes in an index which is the Bank Base Rate (the “Index”). The Index is not necessarily the
lowest rate charged by Lender on its loans and is set by Lender in its sole discretion. If the
Index becomes unavailable during the term of this loan, Lender may designate a substitute index
after notifying Borrower. Lender will tell Borrower the current Index rate upon Xxxxxxxx’s request.
The interest rate change will not occur more often than each Day. Borrower understands that Lender
may make loans based on other rates as well. The Index currently is 4.000% per annum. Interest on
the unpaid principal balance of this loan will be calculated as described in the “INTEREST
CALCULATION METHOD” paragraph using a rate of 0.500 percentage points over the Index, adjusted if
necessary for any minimum and maximum rate limitations described below, resulting in an initial
rate of 6.000% per annum based on a year of 360 days. NOTICE: Under no circumstances will the
interest rate on this loan be less than 6,000% per annum or more than the maximum rate allowed by
applicable law.
INTEREST CALCULATION METHOD. Interest on this loan is computed on a 365/360 basis; that is, by
applying the ratio of the interest rate over a year of 360 days, multiplied by the, outstanding
principal balance, multiplied by the actual number of days the principal balance is outstanding. All
interest payable under this loan is computed using this method.
PREPAYMENT; MINIMUM INTEREST CHARGE. Xxxxxxxx agrees that all loan fees and other prepaid finance
charges are earned fully as of the date of the loan and will not be subject to refund upon early
payment (whether voluntary or as a result of default), except as otherwise required by law. In any
event, even upon full prepayment of this Agreement, Borrower understands that Lender is entitled to
a minimum interest charge of $25.00. Other than Borrower’s obligation to pay any minimum interest
charge, Borrower may pay without penalty all or a portion of the amount owed earlier than it is
due. Early payments will not, unless agreed to by Xxxxxx in writing, relieve Xxxxxxxx of Xxxxxxxx’s
obligation to continue to make payments of accrued unpaid interest. Rather, early payments will
reduce the principal balance due. Xxxxxxxx agrees not to send Lender payments marked “paid in
full”, “without recourse”, or similar language. If Borrower sends such a payment, Xxxxxx may accept
it without losing any of Xxxxxx’s rights under this Agreement, and Borrower will remain obligated
to pay any further amount owed to Lender. All written communications concerning disputed amounts,
including any check or other payment instrument that indicates that the payment constitutes
“payment in full” of the amount owed or that is tendered with other conditions or limitations or as
full satisfaction of a disputed amount must be mailed or delivered to: Citywide Banks, PO Box 128,
Aurora, CO 80040-0128.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged 5.000% of the regularly scheduled payment.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, at Lender’s
option, and if permitted by applicable law, Lender may add any unpaid accrued interest to principal
and such sum will bear interest therefrom until paid at the rate provided in this Agreement
(including any increased rate). Upon default, the interest rate on this loan shall be increased to
21.000% per annum based on a year of 360 days. However, in no event will the interest rate exceed
the maximum interest rate limitations under applicable law.
DEFAULT. Each of the following shall constitute an Event of Default under this Agreement:
| Payment Default. Borrower fails to make any payment when due under the Indebtedness. | |||
| Other Defaults. Borrower fails to comply with or to perform any other term, obligation, covenant or condition contained in this Agreement or in any of the Related Documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower. | |||
| Default in Favor of Third Parties. Any guarantor or Borrower defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of any guarantor’s or Borrower’s property or ability to perform their respective obligations under this Agreement or any of the Related Documents. | |||
| False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or on Borrower’s behalf under this Agreement or the Related Documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter. | |||
| Death or Insolvency. The dissolution or termination of Xxxxxxxx’s existence as a going business or the death of any partner, the insolvency of Xxxxxxxx, the appointment of a receiver for any part of Xxxxxxxx’s property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower. | |||
| Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower or by any governmental agency against any collateral securing the Indebtedness. This includes a garnishment of any of Borrower’s accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Xxxxxxxx as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower gives Xxxxxx written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute. | |||
| Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the Indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness evidenced by this Note. | |||
| Events Affecting General Partner of Borrower. Any of the preceding events occurs with respect to any general partner of Borrower or any general partner dies or becomes incompetent. | |||
| Change In Ownership. The resignation or expulsion of any general partner with an ownership interest of twenty-five percent (25%) or more in Borrower. | |||
| Adverse Change. A material adverse change occurs in Borrower’s financial condition, or Xxxxxx believes the prospect of payment or performance of the Indebtedness is impaired. | |||
| Insecurity. Lender in good faith believes itself insecure. |
LENDER’S RIGHTS. Upon default, Xxxxxx may declare the entire unpaid principal balance under this
Agreement and all accrued unpaid interest immediately due, and then Borrower will pay that amount.
ATTORNEYS’ FEES; EXPENSES. Lender may hire or pay someone else to help collect this Agreement if
Borrower does not pay. Borrower will pay Lender the reasonable costs of such collection. This
includes, subject to any limits under applicable law. Xxxxxx’s attorneys’ fees and Xxxxxx’s legal
expenses, whether or not there is a lawsuit, including without limitation attorneys’ fees and legal
expenses for bankruptcy
| Loan No: XXXXXX | (Continued) | Page 2 |
proceedings (including efforts to modify or vacate any automatic stay or injunction), and
appeals. If not prohibited by applicable law, Xxxxxxxx also will pay any court costs, in addition
to all other sums provided by law.
JURY WAIVER. Xxxxxx and Xxxxxxxx hereby waive the right to any jury trial in any action,
proceeding, or counterclaim brought by either Xxxxxx or Borrower against the other.
GOVERNING LAW. This Agreement will be governed by federal law applicable to Lender and, to the
extent not preempted by federal law, the laws of the State of Colorado without regard to its
conflicts of law provisions. This Agreement has been accepted by Xxxxxx in the State of Colorado.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in
all Borrower’s accounts with Lender (whether checking, savings, or some other account). This
includes all accounts Borrower holds jointly with someone else and all accounts Borrower may open
in the future. However, this does not include any IRA or Xxxxx accounts, or any trust accounts for
which setoff would be prohibited by law. Borrower authorizes Xxxxxx, to the extent permitted by
applicable law, to charge or setoff all sums owing on the indebtedness against any and all such
accounts.
LINE OF CREDIT. This Agreement evidences a revolving line of credit. Advances under this Agreement
may be requested either orally or in writing by Xxxxxxxx or as provided in this paragraph. All oral
requests shall be confirmed in writing on the day of the request, on forms acceptable to Lender.
All communications, instructions, or directions by telephone or otherwise to Lender are to be
directed to Xxxxxx’s office shown above. The following person or persons are authorized to request
advances and authorize payments under the line of credit until Xxxxxx receives from Borrower, at
Xxxxxx’s address shown above, written notice of revocation of such authority: Xxxx X. Xxxxxx,
President of Xxxxxx Investment Management, Inc , General Partner of Xxxxxx Management, LLLP.
Xxxxxxxx agrees to be liable for all sums either: (A) advanced in accordance with the instructions
of an authorized person or (B) credited to any of Xxxxxxxx’s accounts with Xxxxxx. The unpaid
principal balance owing on this Agreement at any time may be evidenced by endorsements on this
Agreement or by Xxxxxx’s internal records, including daily computer print-outs.
CONTINUING VALIDITY. Except as expressly changed by this Agreement, the terms of the original
obligation or obligations, including all agreements evidenced or securing the obligation(s), remain
unchanged and in full force and effect. Consent by Xxxxxx to this Agreement does not waive Xxxxxx’s
right to strict performance of the obligation(s) as changed, nor obligate Lender to make any future
change in terms. Nothing in this Agreement will constitute a satisfaction of the obligation(s). It
is the intention of Lender to retain as liable parties all makers and endorsers of the original
obligation(s), including accommodation parties, unless a party is expressly released by Xxxxxx in
writing. Any maker or endorser, including accommodation makers, will not be released by virtue of
this Agreement. If any person who signed the original obligation does not sign this Agreement
below, then all persons signing below acknowledge that this Agreement is given conditionally, based
on the representation to Lender that the non-signing party consents to the changes and provisions
of this Agreement or otherwise will not be released by it. This waiver applies not only to any
initial extension, modification or release, but also to all such subsequent actions.
PRIOR NOTE. Original Promissory Note in the amount of $2,000,000.00 dated September 16, 2009.
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this Agreement on transfer of
Xxxxxxxx’s interest, this Agreement shall be binding upon and inure to the benefit of the parties,
their successors and assigns. If ownership of the Collateral becomes vested in a person other than
Xxxxxxxx, Lender, without notice to Xxxxxxxx, may deal with Xxxxxxxx’s successors with reference to
this Agreement and the Indebtedness by way of forbearance or extension without releasing Borrower
from the obligations of this Agreement or liability under the Indebtedness.
NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES. Please notify us if
we report any inaccurate information about your account(s) to a consumer reporting agency. Your
written notice describing the specific inaccuracy(ies) should be sent to us at the following
address: Citywide Banks Operations Center PO Box 128 Aurora, CO 80040-0128.
MISCELLANEOUS PROVISIONS. If any part of this Agreement cannot be enforced, this fact will not
affect the rest of the Agreement. Lender may delay or forgo enforcing any of its rights or remedies
under this Agreement without losing them. Borrower and any other person who signs, guarantees or
endorses this Agreement, to the extent allowed by law, waive presentment, demand for payment, and
notice of dishonor. Upon any change in the terms of this Agreement, and unless otherwise expressly
stated in writing, no party who signs this Agreement, whether as maker, guarantor, accommodation
maker or endorser, shall be released from liability. All such parties agree that Lender may renew
or extend (repeatedly and for any length of time) this loan or release any party, partner, or
guarantor or collateral; or impair, fail to realize upon or perfect Lender’s security interest in
the collateral; and take any other action deemed necessary by Xxxxxx without the consent of or
notice to anyone. All such parties also agree that Xxxxxx may modify this loan without the consent
of or notice to anyone other than the party with whom the modification is made. The obligations
under this Agreement are joint and several.
PRIOR TO SIGNING THIS AGREEMENT, XXXXXXXX READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS AGREEMENT,
INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. XXXXXXXX AGREES TO THE TERMS OF THE AGREEMENT.
BORROWER:
XXXXXX MANAGEMENT, LLLP
| XXXXXX INVESTMENT
MANAGEMENT, INC, General Partner of Xxxxxx Management, LLLP |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Xxxx X. Xxxxxx, President of
Xxxxxx Investment Management, Inc |
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