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 "Agreement”) datedNOVEMBER
4, 2009 and the Borrower has executed
a Note (the "Note”),
dated NOVEMBER
4, 2009, 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 $ 2,500,000.00
____________ 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, 2011__”.
x 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 "$ 3,000,000.00 “,
which evidences an additional $ 500,000.00
available to be advanced subject to the terms and conditions of the Agreement
and Note.
¨ Temporary 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.
o
Change 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
"_________________________”.
¨
Change in Payment Schedule. If checked here, effective upon the
date of this Amendment, any payment terms are amended as
follows:
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¨ 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.
o
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.
¨ 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]
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Dated as
of November 19,
2010
Borrower
name (Organization)
Itex
Corporation
a Nevada
Corporation
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By:
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/s/ Xxxxxx Xxxxx
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Name
and Title Xxxxxx X. Xxxxx, Chairman of the Board
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||
Agreed
to:
U.S. BANK
N.A.
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By:
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/s/ Xxxxxxx X. Xxxxx
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Name
and Title Xxxxxxx X. Xxxxx, Vice President
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||
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