AMENDMENT TO LOAN AGREEMENT AND NOTE
AMENDMENT
TO LOAN AGREEMENT AND NOTE
This
amendment (the "Amendment',
dated
as
of the date specified below, is by and between the borrower (the "Borrower'
and
the
bank (the "Bank'
identified
below.
RECITALS
A.
The
Borrower and the Bank have executed a Loan Agreement (the "Agreements
dated
DECEMBER
2, 2004
and the
Borrower has executed
a Note (the "Note'),
dated
DECEMBER
2, 2004,
either
or both which may have been amended and replaced from time to time, and the
Borrower (and if applicable, certain third parties) have executed the collateral
documents which may or may not be identified in the Agreement and certain other
related documents (collectively the "Loan
Documents"), setting
forth the terms and conditions upon which the Borrower may obtain loans from
the
Bank
from
time to time in the stated amount of $ 750,000.00 may
be
amended from time to time.
B.
The
Borrower has requested that the Bank permit certain modifications to the
Agreement and Note as described below.
C.
The
Bank has agreed to such modifications, but only upon the terms and conditions
outlined in this Amendment.
TERMS
OF AGREEMENT
In
consideration of the mutual covenants contained herein, and for other xxxx
and
valuable consideration, the Borrower and the Bank agree as follows:
x Change
in Maturity Date. If checked
here, any references in the Agreement or Note to the maturity date or date
of
final payment are hereby deleted and replaced with " - NOVEMBER
30, 2008
q
Change in Maximum Loan Amount. If
checked here, all references in the Agreement and in the Note (whether or not
numerically) to the maximum loan amount are hereby deleted and replaced with
"$ ,
which
evidences an additional $________________________
available to be advanced subject to the terms and conditions of the Agreement
and Note.
qTemporary
Increase in Maximum Loan Amount.
If checked here, notwithstanding the maximum principal amount that may be
borrowed from time to time under the Agreement and Note, the maximum principal
amount that may be borrowed thereunder shall increase from $to
$effective
__ through_________________________
annually.
On_____________________________ through____________
annually, the maximum principal amount that may be borrowed thereunder shall
revert to $ _____________________ and any loans outstanding in excess of that
amount will be immediately due and payable without further demand by the
Bank.
qChange
in
Multiple Advance
Termination Date. If
checked here, all references in the Agreement and in the Note to the termination
date for multiple advances are hereby deleted and replaced
with
"______________________”.
q
Change in Payment Schedule. If
checked here, effective upon the date of this Amendment, any payment terms
are
amended as follows:
Page
1 of 3
q Change
In Late Payment Fee. If
checked here, subject to applicable law, if any payment is not made on or before
its due date, the Bank may collect a delinquency charge of_.%
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.
q Change
in Closing Fee. If
checked here and subject to applicable law, the Borrower will pay the Bank
a
closing fee of $
(apart
from any prior closing fee) contemporaneously with the execution of this
Amendment. This fee is in addition to all other fees, expenses and other amounts
due hereunder.
q Change
in Paid-In-Full Period. If checked
here, all revolving loans under the Agreement and the Note must be paid in
full
for a period of at least consecutive
days during each fiscal year. Any previous Paid-in-Full provision is hereby
replaced with this provision.
Default
Interest Rate. 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.
Effectiveness
of Prior Documents. Except
as
specifically amended hereby, the Agreement, the Note and the other Loan
Documents shall remain in full force and effect in accordance with their
respective terms. All warranties and representations contained in the Agreement
and the other Loan Documents are hereby reconfirmed as of the date hereof.
All
collateral previously provided to secure the Agreement and/or Note continues
as
security, and all guaranties guaranteeing obligations under the Loan Documents
remain in full force and effect. This is an amendment, not a
novation.
Preconditions
to Effectiveness. This
Amendment shall only become effective upon execution by the Borrower and the
Bank, and approval by any other third party required by the Bank.
No
Waiver of Defaults; Warranties. This
Amendment shall not be construed as or be deemed to be a waiver by the Bank
of
existing defaults by the Borrower, whether known or undiscovered. All
agreements, representations and warranties made herein shall survive the
execution of this Amendment.
Counterparts.
This
Amendment may be signed in any number of counterparts, each of which shall
be
considered an original, but when taken together shall constitute one
document.
Authorization.
The
Borrower represents and warrants that the execution, delivery and performance
of
this Amendment and the documents referenced herein are within the authority
of
the Borrower and have been duly authorized by all necessary action.
Transferable
Record. The
agreement and note, as amended, is a "transferable record" as defined in
applicable law relating to electronic transactions. Therefore, the holder of
the
agreement and note, as amended, may, on behalf of Borrower, create a microfilm
or optical disk or other electronic image of the agreement and note, as amended,
that is an authoritative copy as defined in such law. The holder of the
agreement and note, as amended, may store the authoritative copy of such
agreement and note, as amended, 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.
Attachments.
All documents attached hereto, including any appendices, schedules, riders,
and
exhibits to this Amendment, are hereby expressly incorporated herein by
reference.
[SIGNATURE(S)
ON NEXT PAGE]
Page
2 of 3
Dated
as
of November
13, 2007
Borrower
name (Organization)
Itex
Corporation
a
Nevada
Corporation
|
By:
|
/s/
Xxxxxx Xxxxx
|
|
|
Name
and Title Xxxxxx X. Xxxxx, Chairman of the
Board
|
||
Agreed
to:
U.S.
BANK
N.A.
|
By:
|
/s/
Xxxxxxx X. Xxxxx
|
|
|
Name
and Title Xxxxxxx X. Xxxxx, Vice
President
|
||
Page
3 of 3
