CHANGE IN TERMS AGREEMENT
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First
National Bank
of
Colorado
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Principal
$169,960.97
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Loan
Date
09-01-2006
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Maturity
10-01-2006
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Loan
No
8596443-101A
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Call
/ Coll
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Account
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Officer
00332
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Initials
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|
References
in the shaded area are for Lender'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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|||||||
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Borrower:
|
SUITESPEED,
INC.
0000
0XX XXXXXX, XXXXX X
XXXXXXXXXX,
XX 00000
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Lender:
|
First
National Bank of Colorado
Main
Office
0000
Xxxx Xxxxxx
Xxxxxxx,
XX 00000-9032
(000)
000-0000
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|
Principal
Amount: $169,960.97
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Initial
Rate: 9.250%
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Date
of Agreement: September 1,
2006
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DESCRIPTION
OF COLLATERAL. SECURITY
AGREEMENT DATED 6/30/2005 COVERING ALL ACCOUNTS RECEIVABLE.
DESCRIPTION
OF CHANGE IN TERMS. 30
DAY
EXTENSION OF THE EXISTING TERM LOAN.
PROMISE
TO PAY. SUITESPEED, INC. ("Borrower") promises to pay to First
National Bank of Colorado ("Lender"), or order, in lawful money of the United
States of America, the principal amount of One Hundred Sixty-nine Thousand
Nine
Hundred Sixty & 97/100 Dollars ($169,960.97), together with interest on the
unpaid principal balance from September 1, 2006, until paid in
full.
PAYMENT.
Borrower will pay this loan in one principal payment of $169,960.97 plus
interest on October 1, 2006. This payment due on October
1, 2006, will be for all principal and all accrued interest not yet paid. Unless
otherwise agreed or required by applicable law, payments will be applied first
to any accrued unpaid interest; then to principal; then to any late charges;
and
then to any unpaid collection costs. Interest on this loan is computed on a
365/360 simple interest basis; that is, by applying the ratio of the annual
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. 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 independent index which is the highest base rate on corporate
loans posted by at least 75% of the nation's 30 largest banks that The Wall
Street Journal publishes as the Prime Rate (the "Index"). The Index is not
necessarily the lowest rate charged by Lender on its loans. 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 8.250% per annum.
The interest rate to be applied to the unpaid principal balance during this
loan
will be at a rate of 1.000 percentage point over the Index, rounded to the
nearest 0.001 percent, resulting in an initial rate of 9.250% per
annum. NOTICE: Under no circumstances will the interest rate on this loan be
more than the maximum rate allowed by applicable law.
PREPAYMENT;
MINIMUM INTEREST CHARGE.
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 Xxxxxxxx's obligation to pay any minimum interest charge, Borrower may
pay
without
penalty ail 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 under the payment schedule.
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:
First National Bank of Colorado, Main Office, 0000 Xxxx Xxxxxx,
Xxxxxxx, XX 00000-0000.
LATE
CHARGE. If
a
payment is 10 days or more late, Borrower will be charged 5.000%
of the unpaid portion of the regularly scheduled payment
or $30.00, whichever is greater.
INTEREST
AFTER DEFAULT.
Upon default, including failure to pay upon final maturity, the interest rate
on
this loan shall be increased by adding a 5.000 percentage point margin ("Default
Rate Margin"). The Default Rate Margin shall also apply to each succeeding
interest rate change that would
have applied had there been no default. 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.
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 Borrower's property or Borrower's ability to
perform Borrower's 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.
Insolvency.
The
dissolution or termination of Xxxxxxxx's existence as a going business, 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 Xxxxxxxx'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, endorser,
surety, or accommodation party of
any of
the Indebtedness or any guarantor, endorser, surety, or accommodation party
dies
or becomes incompetent, or revokes or disputes
the validity of, or liability under, any Guaranty of the Indebtedness evidenced
by this Note. In the event of a death, Lender, at its option, may, but shall
not
be required to, permit the guarantor's estate to assume unconditionally the
obligations arising under the guaranty in a manner satisfactory to Lender,
and,
in doing so, cure any Event of Default.
Change
In Ownership. Any
change in ownership of twenty-five percent (25%) or more of the common stock
of
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 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.
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Loan
No: 8596443-101A
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(Continued)
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Page
2
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GOVERNING
LAW. This Agreement will be governed by federal law applicable to
Lender and, to the extent not preempted by federal law, the Jaws 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.
CHOICE
OF VENUE. If
there
is a lawsuit, Xxxxxxxx agrees upon Xxxxxx's request to submit to the
jurisdiction of the courts of Boulder County, 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 debt against any and all such
accounts, and, at Xxxxxx's option, to administratively freeze all such accounts
to allow Lender to protect Xxxxxx's charge and setoff rights provided in this
paragraph.
COLLATERAL.
Collateral
securing other loans with Lender may also secure this loan. To the extent
collateral previously has been given to Lender by any person which may secure
this Indebtedness, whether directly or indirectly, it is specifically agreed
that, to the extent prohibited by
law,
all such collateral consisting of household goods will not secure this
Indebtedness. In addition, if any collateral requires the giving of a
right
of
rescission under Truth in Lending for this Indebtedness, such collateral also
will not secure this Indebtedness unless and until all required notices
of that right have been given.
ARBITRATION.
Xxxxxxxx and Xxxxxx agree that all disputes, claims and controversies between
them whether individual, joint, or class in nature, arising from this Agreement
or otherwise, including without limitation contract and tort disputes, shall
be
arbitrated pursuant to the Rules
of the American Arbitration Association in effect at the time the claim is
filed, upon request of either party. No act to take or dispose of any Collateral
shall constitute a waiver of this arbitration agreement or be prohibited by
this
arbitration agreement. This includes, without limitation,
obtaining injunctive relief or a temporary restraining order; invoking a power
of sale under any deed of trust or mortgage; obtaining a writ
of attachment or imposition of a receiver; or exercising any rights relating
to
personal property, including taking or disposing of such property with or
without judicial process pursuant to Article 9 of the Uniform Commercial Code.
Any disputes, claims, or controversies concerning
the lawfulness or reasonableness of any act, or exercise of any right,
concerning any Collateral, including any claim to rescind, reform,
or otherwise modify any agreement relating to the Collateral, shall also be
arbitrated, provided however that no arbitrator shall have the right or the
power to enjoin or restrain any act of any party. Judgment upon any award
rendered by any arbitrator may be entered in any court having jurisdiction.
Nothing in this Agreement shall preclude any party from seeking equitable relief
from a court of competent jurisdiction. The statute
of limitations, estoppel, waiver, laches, and similar doctrines which would
otherwise be applicable in an action brought by a party shall be applicable
in
any arbitration proceeding, and the commencement of an arbitration proceeding
shall be deemed the commencement of an action
for these purposes. The Federal Arbitration Act shall apply to the construction,
interpretation, and enforcement of this arbitration provision.
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. PROMISSORY
NOTE 8596443-101A DATED 3/10/2004 IN THE AMOUNT OF $300,000.00.
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 Borrower, 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.
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 or guarantor or
collateral; or impair, fail to realize upon or perfect Xxxxxx'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.
CHANGE
IN TERMS SIGNERS:
SUITESPEED,
INC.
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By:
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/s/
Xxxxxxx X. Xxxxx
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XXXXXXX
X. XXXXX, President of SUITESPEED, INC.
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NOTICE
AND CONSENT TO CHANGE IN TERMS AGREEMENT BY GUARANTOR
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Principal
$169,960.97
|
Loan
Date
09-01-2006
|
Maturity
10-01-2006
|
Loan
No
8596443-101A
|
Call
/ Coll
|
Account
|
Officer
00332
|
Initials
|
|
References
in the shaded area are for Lender'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:
|
SUITESPEED,
INC.
0000
0XX XXXXXX, XXXXX X
XXXXXXXXXX,
XX 00000
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Lender:
|
First
National Bank of Colorado
Main
Office
0000
Xxxx Xxxxxx
Xxxxxxx,
XX 00000-9032
(000)
000-0000
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GUARANTOR:
XXXXXXX
X. XXXXX
0000
X
XXXXXXX XXXX XXXXX
SUPERIOR,
CO 80027
TRG
INCORPORATED
755
S HWY
105 #C
XXXXXX
LAKE, CO 80133
1. DEFINITIONS.
In this Notice, these terms have the following meanings:
A. Pronouns.
The pronouns "I", "me" and "my" refer to all persons or entities signing this
Notice, individually and together with their heirs, successors
and assigns. "You" and "your" refer to the Lender, with its participants or
syndicators, successors and assigns, or any person or company
that acquires an interest in the Modification or Prior Obligation.
B. Change
in
Terms. Change in Terms refers to the Change in Terms Agreement dated 9/1/2006
and executed by you and the Borrower.
C. Prior
Obligation. Prior Obligation refers to the Borrower's existing agreement to
pay
you money, dated 3/10/2004.
D. Guaranty.
Guaranty refers to my previous agreement to absolutely and unconditionally
promise to pay you and guarantee to you the full and prompt payment of the
Prior
Obligation.
2. NOTICE
TO
GUARANTOR. I acknowledge that the Borrower has requested a Change in Terms
to the terms of the Prior Obligation and that you have agreed to modify the
Prior Obligation, subject to the terms and conditions contained in the Change
in
Terms Agreement.
3. CONSENT
BY GUARANTOR. I unconditionally consent to the Change in Terms Agreement.
Except to the extent that the Change in Terms Agreement
expressly modifies the terms and conditions of the Prior Obligation, I
acknowledge that the terms and conditions of the Prior Obligation
and the Guaranty continue in full force and effect.
SIGNATURES.
I agree to the terms contained in this Notice. I also acknowledge receipt of
a
copy of this Notice.
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GUARANTOR:
|
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/s/
Xxxxxxx X. Xxxxx
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|
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XXXXXXX
X XXXXX
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Individually
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TRG
INCORPORATED
|
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/s/
Xxxxxxx X. Xxxxx
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XXXXXXX
XXXXX, CEO.
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| |
First
National Bank
of
Colorado
|
000
00xx Xxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Tel
000.000.0000
xxx.xxxxxxxxx.xxx
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September
14, 2006
MikeWasik
RoomLinX
and/or Suitespeed Inc
0000
0xx Xxxxxx Xxxx X
Broomfield,
Colorado 80020
RE: Extension
of
existing Loan for RoomLinX and/or Suitespeed Inc #8596443-101
Dear
Xxxx,
This
letter is to inform you that the 1 year extension of the above referenced note
has been approved and we are working on the loan documentation currently. We
anticipate being able to close this extension prior to 9/30/2006.
The
basic
terms of the extension include a maturity date of 9/30/2007 with no other
changes in existing loan payment terms, covenants or interest rate structure.
If
you have any questions please feel free to contact me at
000-000-0000.
Sincerely,
/s/
Xxx
Xxxx
Xxx
Xxxx
Vice
President
Manager
Denver Corporate
