MODIFICATION OF PROMISSORY NOTE AND SECURITY AGREEMENT
Exhibit 10.4 - Modification of Promissory Note and Agreements thereto.
MODIFICATION OF PROMISSORY NOTE
AND SECURITY AGREEMENT
THIS MODIFICATION TO PROMISSORY NOTE AND SECURITY AGREEMENT ("Modification") is made and entered into this 23rd day of September, 2004, by and between Tri-State Media Corporation, a Utah corporation, and E. Xxxxxx Xxxxxxx, Jr., ("Borrowers"), and US Capital, Incorporated, a Colorado corporation ("Lender"), whose mutual covenants and representations ate herein set forth.
RECITALS:
A Borrowers executed and delivered to Lender a Promissory Note dated July 23, 2004 in the principal amount of Three Hundred Sixty Five Thousand Five Hundred and No/100 Dollars ($365,500.00) (the “Note”), which Note is due and payable in full on July 23, 2005.
B The principal amount currently owing under the Note is $365,500.00 as of the date of this Modification.
C Borrowers have requested that Lender advance additional funds, in. the amount of $209,000, on the Note.
D Subject to Borrowers' compliance with the terms set forth herein, Lender has agreed to increase the principal balance on the loan.
E The Note is secured by a Security Agreement, dated July 23, 2004, and a Guaranty Agreement and a Guaranty and Security Agreement, each dated July 23, 2004, by Legacy Communications Corporation and Diamond Broadcasting Corporation, respectively.
IT IS HERBY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS:
1. Payment of Lender's Expenses and Fees. In consideration for Lender's advance of additional funds on the Note, Borrowers agree to pay Lender's expenses and fees as itemized on the Loan Advance Settlement Statement of even date herewith.
2. Increase of Principal Balance. The principal balance owing on the Note, as of the date of this Modification, is increased to Five Hundred Seventy Four Thousand Five Hundred and No/100 Dollars ($574,500.00).
Modification of Promissory
Now and Security Agreement
Page 2 of 5
3. Additional Collateral. In consideration for Lender's increasing the principal balance of the Note, as set forth above, Xxxxx X. Xxxxxx agrees to execute, for the benefit of Lender and Borrowers, a 2nd Trust Deed, together with an Assignment of Rents, encumbering the real property legally described as follows:
ALL OF XXX 00, XXXX “X”, XXXX XXXXX ACRES EAST SUBDIVISION, AMERICAN FORK, UTAH, ACCORDING TO THE OFFICIAL PLAT THEREOF ON FILE IN THE OFFICE OF THE RECORDER OF UTAH COUNTY, UTAH. | |
(otherwise known as: 00 Xxxx 0000 Xxxxx, Xxxxxxxx Xxxx, XX00000) |
as additional collateral for the Note.
4. Principal Paydown. Borrowers agree to make a principal paydown, in the amount of $209,000, on or before November 24, 2004. Failure to make said payment of principal will constitute an event of default under the Promissory Note.
5. Evidence of Deposit. Borrowers agree to provide written evidence to Lender, on or before Tuesday, October 28, 2004, of the fact that a $209,000 deposit was made to the proper FCC account, relating to Auction Number 37 by the FCC, by Intermountain Media LLC. Failure to provide written evidence will constitute an event of default under the Promissory Note.
6. Estoppel. Borrowers and Guarantors hereby represent that Lender has in no way defaulted under the terms of the Promissory Note or the Security Agreement, and that there exists no offset, clam of offset, set off, or defense to the enforcement of the Promissory Note or the Security Agreement, and that no condition exists as of the date hereof which condition would give rise to any such claim of offset, set off, or defense.
7. Miscellaneous. Except as specifically set forth herein, the Promissory Note and Security Agreement, as well as the Guaranty Agreement and the Guaranty and Security Agreement, and all terms therein shall continue in full force and effect, unmodified and unaltered.
[SIGNATURES ON FOLLOWING PACES.]
Modification of Promissory
Note and Security Agreement
Page 3 of 5
BORROWERS:
Tri-State Media Corporation, a
Utah corporation
By:
/s/ E. Xxxxxx Xxxxxxx, Jr.
EV President
State of Utah
County of Washington
The foregoing instrument was acknowledged and subscribed before me this 23rd day of September, 2004 by E. Xxxxxx Xxxxxxx, as EV President of Tri-State Media Corporation.
My commission expires: 5/21/2005
/s/ Notary
{seal}
/s/ E. Xxxxxx Xxxxxxx, Jr.
E. Xxxxxx Xxxxxxx, Jr.
State of Utah
County of Washington
The foregoing instrument was acknowledged and subscribed before me this 23rd day of September, 2004 by E. Xxxxxx Xxxxxxx, Jr.
My commission expires: 5/21/2005
/s/ Notary
{seal}
Modification of Promissory
Note and Security Agreement
Page 4 of 5
GUARANTORS ACKNOWLEDGE AND AGREE that their guaranties, previously executed on July 23, 2004, shall attach to this Modification and specifically, without limitation, cover the increased principal amount totaling $574,500.
Legacy Communications Corporation, a
Utah corporation
By:
/s/ E. Xxxxxx Xxxxxxx, Jr.
President
State of Utah
County of Washington
The foregoing instrument was acknowledged and subscribed before me this 23rd day of September, 2004 by E. Xxxxxx Xxxxxxx, as President of Legacy Communications Corporation, a Utah corporation.
My commission expires: 5/21/2005
/s/ Notary
{seal}
Diamond Broadcasting Corporation, a
Utah corporation
By:
/s/ E. Xxxxxx Xxxxxxx, Jr.
President
State of Utah
County of Washington
The foregoing instrument was acknowledged and subscribed before me this 23rd day of September, 2004 by E. Xxxxxx Xxxxxxx, as President of Diamond Broadcasting Corporation, a Utah corporation.
My commission expires: 5/21/2005
/s/ Notary
{seal}
Modification of Promissory
Note and Security Agreement
Page 5 of 5
LENDER:
US Capital, Incorporated, a
Colorado corporation
By: /s/
Xxx X Xxxxxxxxx, President
State of Utah
County of Washington
The foregoing instrument was acknowledged and subscribed before me this ____ day of ________, 2004 by Xxx X Xxxxxxxxx, as President of US Capital, Incorporated, a Colorado corporation.
My commission expires: ___________
Notary
