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EXHIBIT 10.14
PROMISSORY NOTE MODIFICATION AGREEMENT
This Promissory Note Modification Agreement (the "Agreement") is made
and entered into on February 15, 2001 (the "Agreement Date"), to be effective as
of February 15, 2001 (the "Effective Date"), by and between Electronic
Tele-Communications, Inc. (if more than one, jointly and severally,
("Borrower"), and Bank One, Wisconsin ("Lender").
RECITALS
A. Borrower has executed a promissory note in the amount of
$4,000,000.00 and dated June 30, 2000, in favor of Lender, as the same may have
been amended or modified from time to time (the "Note").
B. The Note has at all times been, and is now, continuously and without
interruption, outstanding in favor of Lender.
C. Borrower has requested that the Note be modified to the limited
extent as hereinafter set forth, and Lender has agreed to such modification.
AGREEMENT
NOW, THEREFORE, by mutual agreement of the parties and in mutual
consideration of the agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree that the Note is modified as hereinafter indicated.
1. ACCURACY OF RECITALS. Borrower acknowledges the accuracy of the Recitals,
stated above.
2. MODIFICATION OF PROMISSORY NOTE. The following provisions are deemed to be
part of the Note, and any contrary provisions in the Note are deemed to be
modified hereby:
2.1 From and after the Effective Date, the amount of the Note, and
the maximum principal amount that may at any time be
outstanding thereunder, is hereby decreased to $2,500,000.00.
2.2 Each of the Loan Documents is modified to provide that it shall
be a default or an event of default thereunder if Borrower
shall fail to comply with any of the covenants of Borrower
herein or if any representation or warranty by Borrower herein
or by any guarantor of the Loan or third-party pledgor of
collateral securing the Loan in any Acknowledgement and Consent
attached to this Agreement is materially incorrect or
misleading on the Agreement Date. As used in this Agreement,
"Loan Documents" shall include the Note, this Agreement and all
other documents executed by Borrower or others in connection
with the Loan that is evidenced by the Note.
2.3 Each reference in any Loan Document to that or any other Loan
Document shall be deemed to be a reference to such Loan
Document, as modified herein.
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3. RATIFICATION OF LOAN DOCUMENTS AND COLLATERAL. The Loan Documents are
ratified and affirmed by Borrower and shall remain in full force and effect. Any
property, and rights to or interests in property, that were granted as security
in the Loan Documents shall remain as security for the Loan and the obligations
of Borrower in the Loan Documents.
4. BORROWER REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to
Lender that, as of the later of the Agreement Date and the Effective Date:
4.1 No default or event of default under any of the Loan Documents as
modified hereby, nor any event that, with the giving of notice or the
passage of time or both, would be a default or an event of default
under the Loan Documents, has occurred and is continuing.
4.2 There has been no material adverse change in the financial
conditions of Borrower or any other person whose financial statement
has been delivered to Lender in connection with the Note from the most
recent financial statement received by Lender.
4.3 All representations and warranties of Borrower in the Loan
Documents are accurate.
4.4 Borrower has no claims, counterclaims, defenses, or set-offs with
respect to the Loan or the Loan Documents.
4.5 The Note and the other Loan Documents executed by Borrower are the
legal, valid, and binding obligation of Borrower, enforceable against
Borrower in accordance with their terms.
4.6 Borrower, if not an individual, is validly existing under the laws
of the state of its formation or organization and has the requisite
power and authority to execute and deliver this Agreement and to
perform the Loan Documents. The execution and delivery of this
Agreement and the performance of the Loan Documents have been duly
authorized by all requisite action by or on behalf of Borrower.
5. BORROWER OBLIGATIONS. Contemporaneously with the execution and delivery of
this Agreement, Borrower:
5.1 Agrees to promptly execute, deliver, and provide to Lender such
additional agreements, documents, and instruments as are reasonably
required by Lender to effectuate the intent of this Agreement.
5.2 Fully, finally, and forever releases and discharges Lender and its
successors, assigns, directors, officers, employees, agents, and
representatives from any and all of Borrower's actions, causes of
action, claims, debts, demands, liabilities, obligations, and suits, of
whatever kind or nature, in law or equity, whether now known or unknown
to Borrower, (i) in respect of the Loan, the Loan Documents, or the
actions or omissions of Lender with respect to the Loan or the Loan
Documents and (ii) arising from events occurring prior to the Agreement
Date.
6. EXECUTION AND DELIVERY OF AGREEMENT BY LENDER. Lender shall not be bound by
this Agreement until (i) Lender has executed and delivered this Agreement, (ii)
Borrower has performed all of the obligations of Borrower under this Agreement
to be performed contemporaneously with the execution and delivery of this
Agreement, (iii) each guarantor of the Loan and each third-party pledgor of
collateral securing the Loan has executed the Acknowledgement and Consent
attached to this Agreement and (iv) if required in writing by Lender, Borrower
and each guarantor of the Loan and each third-party
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pledgor of collateral securing the Loan have executed and delivered to Lender an
arbitration resolution, an environmental questionnaire, and an environmental
certification and indemnity agreement in Lender's standard forms.
7. INTEGRATION, ENTIRE AGREEMENT, CHANGE, DISCHARGE, TERMINATION, OR WAIVER. The
Loan Documents as modified herein contain the complete understanding and
agreement of Borrower and Lender with respect to the Loan and supersede all
prior representations, warranties, agreements, arrangements, understandings, and
negotiations. No provision of the Loan Documents may be changed, discharged,
supplemented, terminated, or waived, except in a writing signed by the parties
thereto.
8. BINDING EFFECT. The Loan Documents shall be binding upon and shall inure to
the benefit of Borrower and Lender and their successors and assigns, as well as
the executors, legal administrators, personal representatives, heirs, devisees,
and beneficiaries of Borrower, provided, however, that Borrower may not assign
any rights nor delegate any obligations under the Loan Documents, and any
purported assignment or delegation thereof shall be void.
9. CHOICE OF LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Wisconsin, without giving effect to
conflicts of law principles.
10. COUNTERPART EXECUTION. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same document. Signature pages may be
detached from the counterparts and attached to a single copy of this Agreement
to form one physical document.
11. NOT A NOVATION. This Agreement is a modification only and not a novation.
Except for the modifications expressly set forth in this Agreement, the Note and
each other Loan Document, and all the terms and conditions thereof, shall be and
remain in full force and effect, with the changes herein deemed to be
incorporated therein. This Agreement is to be considered attached to the Note
and made a part thereof. This Agreement shall not release or affect the
liability of any guarantor, surety or endorser of the Note or the Loan, or
release any owner of collateral securing the Note or the Loan. The validity,
priority and enforceability of the Promissory Note shall not be impaired hereby.
IN WITNESS WHEREOF, Borrower has executed and delivered this Promissory Note
Modification Agreement on the Agreement Date, with effect as of the Effective
Date.
ELECTRONIC TELE-COMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, President
LENDER'S ACKNOWLEDGMENT AND AGREEMENT:
The foregoing Promissory Note Modification Agreement is hereby acknowledged and
agreed to this 16th day of February, 2001.
BANK ONE, WISCONSIN
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Vice President
