CHANGE IN TERMS AGREEMENT
Exhibit
4.2
Principal Amount: $1,500,000.00 Initial Rate: 8.500% Date of Agreement: August 12, 2005
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Principal
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Loan
Date
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Maturity
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Loan
No.
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Call
/ Coll
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Account
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Officer
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Initials
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$1,500,000
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08-12-2006
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11-12-2006
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2299001
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4
/ 15
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G001097
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BC
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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 the text length
limitations.
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Borrower:
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XXXXXXX
TECHNOLOGIES, LLC
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Lender:
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NEBRASKA
STATE BANK OF OMAHA
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0000
X. 000XX XX
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XXXXXXXX
XXXXXX
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XXXXX,
XX 00000
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00000
XXXXXXXX XXXXX XXX
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XXXXX,
XX 00000
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(000)
000-0000
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Principal
Amount: $1,500,000.00 Initial
Rate: 10.250% Date
of Agreement: August 12, 2006
DESCRIPTION
OF EXISTING INDEBTEDNESS.
A
Promissory Note dated August 12, 2005, in the principal amount of
$1,500,000.000.
DESCRIPTION
OF COLLATERAL.
Existing collateral remains as described in the original promissory note in
addition to other collateral that may secure this indebtedness, all the terms
and conditions of which are hereby incorporated and made part of the
Agreement.
DESCRIPTION
OF CHANGE IN TERMS.
The
maturity date on the Promissory Note has been extended to November 12, 2006,
at
which time all outstanding principal and accrued interest shall be due and
payable in full.
PAYMENT.
Borrower
will pay this loan in full immediately upon Lender’s demand. If no demand is
made, Borrower will pay this loan in one payment of all outstanding principal
plus all accrued unpaid interest on November 12, 2006. In addition, Borrower
will pay regular monthly payments of all accrued unpaid interest due as of
each
payment date, beginning September 12, 2006, with all subsequent interest
payments to be due on the same day of each month after that.
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 National Prime Rate as published
in
the Money Section of the Wall Street Journal (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 Borrower’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 2.000 percentage
points over the Index, resulting in an initial rate of 10.250% per annum.
NOTICE:
Under no circumstances will the interest rate on this loan be more than the
maximum rate allowed by applicable law.
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 Lender to this
Agreement does not waive Lender’s right to strict performance of the
obligation(s) as changed, no obligate Lender to make any future change in terms.
Nothing in this Agreement will constitute a satisfaction of the obligations(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 Lender 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
TO SIGNING THIS AGREEMENT, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS
OF
THIS AGREEMENT, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES
TO THE TERMS OF THIS AGREEMENT.
BORROWER:
XXXXXXX
TECHNOLOGIES, LLC
XXXXXXX
TECHNOLOGIES CORP., Manager of XXXXXXX TECHNOLOGIES, LLC
By: /s/
Xxxxx X. Xxxxxxxxx
XXXXX
X.
XXXXXXXXX, President of XXXXXXX
TECHNOLOGIES
CORP.
LENDER:
NEBRASKA
STATE BANK OF OMAHA
x /s/
Xxxxx Xxxxxx
XXXXX
XXXXXX, Senior Vice President
PROMISSORY
NOTE
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Principal
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Loan
Date
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Maturity
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Loan
No.
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Call
/ Coll
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Account
|
Officer
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Initials
|
|
$1,500,000
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08-12-2005
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08-12-2006
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22990-01
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4
/ 15
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BC
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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 the text length
limitations.
|
|||||||
|
Borrower:
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XXXXXXX
TECHNOLOGIES, LLC
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Lender:
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NEBRASKA
STATE BANK OF OMAHA
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0000
X. 000XX XX
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XXXXXXXX
XXXXXX
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||
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XXXXX,
XX 00000
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00000
XXXXXXXX XXXXX XXX
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||
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XXXXX,
XX 00000
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|||
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(000)
000-0000
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Principal Amount: $1,500,000.00 Initial Rate: 8.500% Date of Agreement: August 12, 2005
PROMISE
TO PAY. XXXXXXX TECHNOLOGIES, LLC (“Borrower”) promises to pay to NEBRASKA STATE
BANK OF OMAHA (“Lender”), or order in lawful money of the United States of
America, the principal amount of One Million Five Hundred Thousand & 00/100
Dollars ($1,500,000.00) 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 full immediately upon Lender’s demand. If no
demand is made, Borrower will pay this loan in one payment of all outstanding
principal plus all accrued unpaid interest on August 12, 2006. In addition,
Borrower will pay regular monthly payments of all accrued unpaid interest due
as
of each payment date, beginning September 12, 2005, 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; and then to principal. The annual interest rate for
this Note is computed on a 365/360 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 Lender’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 National Prime Rate as published
in
the Money Section of the Wall Street Journal (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 Borrower’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 6.500% per annum. The interest rate to be applied to the
unpaid principal balance during this loan will be at a rate of 2.000 percentage
points over the Index, resulting in an initial rate of 8.500% 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 RATE CHARGE.
Borrower 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 Note, Borrower
understands that Lender is entitled to minimum interest charge of $7.50. 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 Lender in writing, relieve Borrower
or Borrower’s obligation to continue to make payments of accrued unpaid
interest. Rather, early payments will reduce the principal balance due. Borrower
agrees not to send Lender payments marked “paid in full”, “without recourse”, or
similar language. If Borrower sends such a payment, Lender may accept it without
losing any of Lender’s rights under this Note, 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: NEBRASKA STATE BANK OF
OMAHA, LAKESIDE BRANCH, 00000 XXXXXXXX XXXXX XXX, XXXXX, XX 00000.
INTEREST
AFTER DEFAULT. Upon
default, including failure to pay upon final maturity, Lender, at its option,
may, if permitted under applicable law, increase the variable interest rate
on
this Note to 25.000% per annum. The interest rate will not exceed the maximum
rate permitted by applicable law.
DEFAULT.
Each of
the following shall constitute and event of default (“Event of Default”) under
this Note:
Payment
Default.
Borrower fails to make any payment when due under this Note.
Other
Defaults.
Borrower fails to comply with or to perform any other term, obligation, covenant
or condition contained in this Note 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.
False
Statements.
Any
warranty, representation or statement made or furnished to Lender by Borrower
or
on Borrower’s behalf under this Note 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 of Borrower (regardless of whether election to continue is made),
any member withdraws from Borrower, or any other termination of Borrower’s
existence as a going business or the death of any member, the insolvency of
Borrower, the appointment of a receiver for any part of Borrower’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
loan.
This includes a garnishment of any Borrower’s accounts, including deposit
accounts, with Lender. However, this Event of Default shall not apply if there
is a good faith dispute by Borrower as to the validity of reasonableness of
the
claim which is the basis of the creditor or forfeiture proceeding and if
Borrower gives Lender 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 or 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. 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, an, in doing so, cure any Event of Default.
Adverse
Change.
A
material adverse change occurs in Borrower’s financial condition, or Lender
believes the prospect of payment or performance of this Note is
impaired.
Insecurity.
Lender
in good faith believes itself insecure.
Cure
Provision.
If any
default, other than a default in payment is curable and if Borrower has not
been
given notice of a breach of the same provision of this Note within the preceding
twelve (12) months, it may be cured if Borrower, after receiving written notice
from Lender demanding cure of such default: (1) cures the default within twenty
(20) days; or (2) if the cure requires more than twenty (20) days, immediately
initiates steps which Lender deems in Lender’s sole discretion to be sufficient
to cure the default and thereafter continues and completes all reasonable and
necessary steps sufficient to produce compliance as soon as reasonably
practical.
LENDER’S
RIGHTS.
Upon
default, Lender may declare the entire unpaid balance on this Note and all
accrued unpaid interest immediately due, and then Borrower’s will pay that
amount.
ATTORNEYS’
FEES; EXPENSES. Lender
may hire or pay someone else to help collect this Note if Borrower does not
pay.
Borrower will pay Lender that amount. This includes, subject to any limits
under
applicable law, Lender’s attorneys’ fees and Lender’s legal expenses, whether or
not there is a lawsuit, including attorneys’ fees, expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic stay or
injunction), and appeals. If not prohibited by law, Borrower also will pay
any
court costs, in addition to all other sums provided by law.
GOVERNING
LAW. This
note will be governed by federal law applicable to Lender and, to the extent
not
preempted by federal law, the laws of the State of Nebraska without regard
to
its conflicts of law provisions. This Note has been accepted by Lender in the
State of Nebraska.
CHOICE
OF VENUE. If
there
is a lawsuit, Borrower agrees upon Lender’s request to submit to the
jurisdiction of the courts of XXXXXXX County, State of Nebraska.
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 XXX or Xxxxx accounts, or any trust accounts for which setoff would be
prohibited by law. Borrower authorizes Lender, to the extent permitted by
applicable law, to charge or setoff all sums owing on the indebtedness against
any and all such accounts.
COLLATERAL.
Borrower
acknowledges this Note is secured by COMMERCIAL SECURITY AGREEMENT AND
GUARANTIES DATED AUGUST 12, 2005.
LINE
OF CREDIT. This
Note evidences a revolving line of credit. Advances under this Note may be
requested either orally or in writing by Borrower or
PROMISSORY
NOTE
Loan
No. 22990-01 (Continued) Page
2
as
provided in this paragraph. Lender may, but need not, require that all oral
requests be confirmed in writing. All communications, instructions, or
directions by telephone or otherwise to Lender are to be directed to Lender’s
office shown above. The following person currently is authorized to request
advances and authorize payments under the line of credit until Lender receives
from Borrower, at Lender’s address shown above, written notice of revocation of
his or her authority: XXXXX
X. XXXXXXXXX.
Borrower 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
Borrower’s accounts with Lender. The unpaid principal balance owing on this Note
at any time may be evidenced by endorsements on this Note or by Lender’s
internal reports, including daily computer print-outs. Lender will have no
obligation to advance funds under this Note if: (A) Borrower or any guarantor
is
in default under the terms of this Note or any agreement that Borrower or any
guarantor has with Lender, including any agreement made in connection with
the
signing of this Note; (B) Borrower or any guarantor ceases doing business or
is
insolvent; (C) any guarantor seeks, claims or otherwise attempts to limit/modify
or revoke such guarantor’s guarantee of this Note or any other loan with Lender;
(D) Borrower has applied funds provided pursuant to this Note for purposes
other
than those authorized by Lender; or (E) Lender in good faith believes itself
insecure.
SUCCESSOR
INTERESTS.
The
terms of this Note shall be binding upon Borrower, and upon Borrower’s heirs,
personal representatives, successors and assigns, and shall inure to the benefit
of Lender and its successors and assigns.
GENERAL
PROVISIONS.
This
Note is payable on demand. The inclusion of specific default provisions or
rights of Lender shall not preclude Lender’s right to declare payment of this
Note on its demand. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower and any other person
who
signs, guarantees or endorses this Note, to the extent allowed by law, waive
presentment, demand for payment, and notice of dishonor. Upon any change in
the
terms of this Note, and unless otherwise expressly stated in writing, no party
who signs this Note, 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
Lender’s security interest in the collateral; and take any other action deemed
necessary by Lender without the consent of or notice to anyone. All such parties
also agree that Lender 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 Note are joint and several.
PRIOR
TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS
NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE
TERMS OF THE NOTE.
BORROWER
ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY
NOTE.
BORROWER:
XXXXXXX
TECHNOLOGIES, LLC
XXXXXXX
TECHNOLOGIES CORP., Manager of XXXXXXX TECHNOLOGIES, LLC
By:
__________________________________________________________
XXXXX
X. XXXXXXXXX, President of XXXXXXX
TECHNOLOGIES
CORP.
LENDER:
NEBRASKA
STATE BANK OF OMAHA
X
________________________________________________
XXXXX
XXXXXX, Senior Vice President
