Note Modification Agreement
Exhibit 10.16
Exhibit 10.16 — Modification dated April 30, 2010 to Credit Agreement dated February 26, 2009
Note Modification Agreement
This agreement is dated as of April 30, 2010 (the “Agreement Date”), by and between U.S. GLOBAL
INVESTORS, INC. (the “Borrower”) and JPMorgan Chase Bank, N.A. (together with its successors and
assigns, the “Bank”). The provisions of this agreement are effective on the date that this
agreement has been executed by all of the signers and delivered to the Bank (the “Effective Date”).
WHEREAS, the Borrower executed a Line of Credit Note dated as of February 26, 2009 in the original
principal amount of One Million and 00/100 Dollars ($1,000,000.00), (as same may have been amended
or modified from time to time, the “Note ”) as evidence of an extension of credit from the Bank to
the Borrower, which Note has at all times been, and is now, continuously and without interruption
outstanding in favor of the Bank; and,
WHEREAS, the Borrower has requested and the Bank has agreed that the Note be modified to the
limited extent as hereinafter set forth in this agreement;
NOW THEREFORE, in mutual consideration of the agreements contained herein and for other good and
valuable consideration, the parties agree as follows:
1. ACCURACY OF RECITALS. The Borrower acknowledges the accuracy of the Recitals stated above.
2. DEFINITIONS. Capitalized terms used in this agreement shall have the same meanings as in the
Note, unless otherwise defined in this agreement
3. MODIFICATION OF NOTE.
3.1 From and after the Effective Date the provision in the Note captioned “Promise to Pay” is
hereby amended as follows: The date on which the entire balance of unpaid principal plus accrued interest shall be due
and payable immediately is hereby changed from May 31, 2010 to May 31, 2011.
3.2 Each of the Related Documents is modified to provide that it shall be a default or an event of default thereunder if the
Borrower shall fail to comply with any of the covenants of the Borrower herein or if any
representation or warranty by the Borrower herein or by any guarantor in any Related Documents is materially incomplete, incorrect, or
misleading as of the date hereof. As used in this agreement, the “Related Documents” shall include the Note and all applications for
letters of credit, loan agreements, credit agreements, reimbursement agreements, security agreements, mortgages, deeds of trust, pledge
agreements, assignments, guaranties, or any other instrument or document executed in connection with the Note or in connection with
any other obligations of the Borrower to the Bank.
3.3 Each reference in the Related Documents to any of the Related Documents shall be a reference to such document as
modified by this agreement.
4. RATIFICATION OF RELATED DOCUMENTS AND COLLATERAL. The Related Documents are ratified and
reaffirmed by the Borrower and shall remain in full force and effect as they may be modified by this
agreement. All property described as security in the Related Documents shall remain as security for the Note, as modified by this
agreement, and the Liabilities under the other Related Documents.
5. BORROWER REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants to the Bank that
each of the representations and warranties made in the Note and the other Related Documents and each of the
following representations and warranties are and will remain, true and correct until the later of maturity or the date on which
all Liabilities evidenced by the Note are paid in full:
5.1 No default, event of default or event that would constitute a default or event of default
but for the giving of notice, the lapse of time or both, has occurred and is continuing under any provision of the Note, as
modified by this agreement, or any other Related Document.
5.2 No event has occurred which may in any one case or in the aggregate materially and adversely affect the financial
condition, properties, business, affairs, prospects or operations of the Borrower or any
guarantor or any subsidiary of the Borrower.
5.3 To the best of its knowledge, the Borrower has no defenses or counterclaims, offsets or
adverse claims, demands or actions of any kind, personal or otherwise, that it could assert with respect to the Note or
any other Liabilities.
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5.4 The Note, as modified by this agreement, and the other Related Documents are the
legal, valid, and binding obligations of the Borrower and the other parties, enforceable against the Borrower and other parties in
accordance with their terms, except as may be limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors’
rights generally and by general principles of equity.
5.5 The Borrower, other than any Borrower who is a natural person, is validly existing under the laws of the State of its
formation or organization. The Borrower has the requisite power and authority to execute and
deliver this agreement and to perform
the obligations described in the Related Documents as modified herein. The execution and delivery of this agreement and the
performance of the obligations described in the Related Documents as modified herein have been
duly authorized by all requisite action by or on behalf of the Borrower. This agreement has been duly executed and delivered by
or on behalf of the Borrower.
6. BORROWER COVENANTS. The Borrower covenants with the Bank:
6.1 The Borrower shall execute, deliver, and provide to the Bank such additional agreements,
documents, and instruments as reasonably required by the Bank to effectuate the intent of this agreement.
6.2 The Borrower fully, finally, and forever releases and discharges the Bank, its successors,
and assigns and their respective directors, officers, employees, agents, and representatives (each a “Bank Party”) from any and
all causes of action, claims, debts, demands, and liabilities, of whatever kind or nature, in law or equity, of the Borrower,
whether now known or unknown to the Borrower, (i) in respect of the loan evidenced by the Note and the Related Documents, or of
the actions or omissions of any Bank Party in any manner related to the loan evidenced by the Note or the Related Documents and
(ii) arising from events occurring prior to the date of this agreement (“Claims”); provided, however, that the foregoing RELEASE SHALL
INCLUDE ALL CLAIMS ARISING OUT OF THE NEGLIGENCE OF ANY BANK PARTY, but not the gross negligence or willful
misconduct of any Bank Party.
6.3 To the extent not prohibited by applicable law, the Borrower shall pay to the Bank:
6.3.1 All the internal and external costs and expenses incurred (or charged by internal
allocation) by the Bank in connection with this agreement (including, without limitation, inside
and outside attorneys, appraisal, appraisal review, processing, title, filing, and recording
costs, expenses, and fees).
7. EXECUTION AND DELIVERY OF AGREEMENT BY THE BANK. The Bank shall not be bound by this agreement
until (i) the Bank has executed this agreement and (ii) the Borrower performed all of the
obligations of the Borrower under this agreement to be performed contemporaneously with the
execution and delivery of this agreement.
8. INTEGRATION, ENTIRE AGREEMENT, CHANGE, DISCHARGE, TERMINATION, OR WAIVER. The Note, as modified
by this agreement, and the other Related Documents contain the complete understanding and agreement
of the Borrower and the Bank in respect of any Liabilities evidenced by the Note and supersede all
prior understandings, and negotiations. If any one or more of the obligations of the Borrower under
this agreement or the Note, as modified by this Agreement, is invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining obligations of the
Borrower shall not in any way be affected or impaired, and the invalidity, illegality or
unenforceability in one jurisdiction shall not affect the validity, legality or enforceability of
the obligations of the Borrower under this agreement, the Note as modified by this agreement and
the other Related Documents in any other jurisdiction. No provision of the Note, as modified by
this agreement, or any other Related Documents may be changed, discharged, supplemented,
terminated, or waived except in a writing signed by the party against whom it is being enforced.
9. GOVERNING LAW AND VENUE. This agreement shall be governed by and construed in accordance with
the laws of the State of Texas (without giving effect to its laws of conflicts). The Borrower
agrees that any legal action or proceeding with respect to any of its obligations under the Note or
this agreement may he brought by the Bank in any state or federal court located in the State of
Texas, as the Bank in its sole discretion, may elect. By the execution and delivery of this
agreement, the Borrower submits to and accepts, for itself and in respect of its property,
generally and unconditionally, the non-exclusive jurisdiction of those courts. The Borrower waives
any claim that the State of Texas is not a convenient forum or the proper venue for any such suit,
action or proceeding. This agreement binds the Borrower and its successors, and benefits the Bank,
its successors and assigns. The Borrower shall not, however, have the right to assign the
Borrower’s rights under this agreement or any interest therein, without the prior written consent
of the Bank.
10. COUNTERPART EXECUTION. This agreement may be executed in multiple counterparts, each of which,
when so executed, shall be deemed an original, but all such counterparts, taken together, shall
constitute one and the same agreement.
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11. NOT A NOVATION. This agreement is a modification only and not a novation. In
addition to all amounts hereafter due under the Note, as modified by this agreement, and the other Related Documents, all accrued interest
evidenced by the Note being modified by this agreement and all accrued amounts due and payable under the Related Documents shall
continue to be due and payable until paid. Except for the modification(s) set forth in this agreement, the Note, the other Related
Documents 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 release any owner of collateral securing the
Note. The validity, priority and enforceability of the Note shall not be impaired hereby. References to the Related Documents
and to other agreements shall not affect or impair the absolute and unconditional obligation of the Borrower to pay the principal and
interest on the Note when due. The Bank reserves all rights against all parties to the Note and the other Related Documents.
12. TIME IS OF THE ESSENCE. Time is of the essence under this agreement and in the performance
of every term, covenant and obligation contained herein.
THIS AGREEMENT AND THE OTHER RELATED DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
| Address: 0000 Xxxxxxxxx Xxxx Xxx Xxxxxxx, XX 00000 |
Borrower: U.S. GLOBAL INVESTORS, INC. |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx | ||||
| Printed Name |
||||
| Chief Executive Officer | ||||
| Title | ||||
| Date Signed: 6/4/2010 | ||||
BANK’S ACCEPTANCE
The foregoing agreement is hereby agreed to and acknowledged.
| Bank: JPMorgan Chase Bank, N.A. |
||||
| By: | /s/ Natalie Hai | |||
| Natalie Hai | ||||
| Printed Name |
||||
| VP | ||||
| Title | ||||
| Date Signed: 6/9/10 | ||||
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