EXHIBIT 10.34
CHANGE IN TERMS AGREEMENT
Principal Amount Date of Agreement:
$650,000.00 November 30, 1997
Borrower: Lender:
Scientific Software-Intercomp, Inc., Bank One, Colorado, N.A.
A Colorado corporation 0000 00xx Xxxxxx
000 00xx Xxxxxx, Xxxxx 0000 Xxxxxx, XX 00000
Xxxxxx, XX 00000
DESCRIPTION OF EXISTING INDEBTEDNESS: A PROMISSORY NOTE DATED SEPTEMBER 20,
1994 IN THE ORIGINAL PRINCIPAL AMOUNT OF $5,000,000.00, AS MODIFIED BY A (1)
CHANGE IN TERMS AGREEMENT, DATED MAY 31, 1995, CHANGING THE MATURITY DATE TO
JULY 15, 1995; (2) CHANGE IN TERMS AGREEMENT, DATED JULY 15, 1995, CHANGING THE
MATURITY DATE TO AUGUST 15, 1995; (3) CHANGE IN TERMS AGREEMENT, DATED AUGUST
15, 1995, CHANGING THE MATURITY DATE TO SEPTEMBER 15, 1995 AND CHANGING THE
PRINCIPAL AMOUNT TO $4,500,000.00; (4) CHANGE IN TERMS AGREEMENT, DATED
SEPTEMBER 15, 1995, CHANGING THE MATURITY DATE TO SEPTEMBER 30, 1995; (5) CHANGE
IN TERMS AGREEMENT, DATED SEPTEMBER 30, 1995, CHANGING THE MATURITY DATE TO
OCTOBER 15, 1995; (6) CHANGE IN TERMS AGREEMENT, DATED OCTOBER 15, 1995,
CHANGING THE MATURITY DATE TO MARCH 30, 1996; (7) CHANGE IN TERMS AGREEMENT,
DATED MARCH 30, 1996, CHANGING THE MATURITY DATE TO APRIL 15, 1997 AND CHANGING
THE PRINCIPAL AMOUNT TO $1,200,000.00; AND (8) CHANGE IN TERMS AGREEMENT, DATED
APRIL 15, 1997, CHANGING THE MATURITY DATE TO OCTOBER 15, 1997 AND CHANGING THE
PRINCIPAL AMOUNT TO $900,000.00, (9) CHANGE IN TERMS AGREEMENT, DATED OCTOBER
30, 1997, CHANGING THE MATURITY DATE TO NOVEMBER 30, 1997 AND CHANGING THE
PRINCIPAL AMOUNT TO $650,000.00 (COLLECTIVELY, THE "PROMISSORY NOTE").
DESCRIPTION OF CHANGE IN TERMS: (1) The maturity date will now be August 15,
1998; (2) Borrower shall make monthly interest only payments; (3) a principal
reduction payment sufficient to reduce the outstanding principal amount to zero
shall be due and payable on March 15, 1998; (4) as of March 15, 1998,
$230,000.00 shall remain available under the loan to secure that certain standby
letter of credit in the amount of $2,000.00, which expires on July 4, 1998, and
that certain standby letter of credit in the amount of $226,000.00, which
expires on August 4, 1998.
Promise to pay. Borrower promises to pay to Lender, or order, in lawful money
of the United States of America, the principal amount of Six Hundred Fifty
Thousand and 00/100 Dollars ($650,000.00), or so much as may be outstanding,
together with interest on the unpaid outstanding principal balance.
PAYMENT. Borrower will continue to pay this loan by making regular monthly
payments of accrued unpaid interest on the 15th day of each month. A principal
reduction payment sufficient to reduce the outstanding principal amount to zero
shall be due and payable on March 15, 1998, after which time the loan shall be
non-revolving and only available to secure that certain standby letter of credit
in the amount of $2,000.00, which expires on July 4, 1998, and that certain
standby letter of credit in the amount of $226,000.00, which expires on August
4, 1998.
VARIABLE INTEREST RATE. The interest rate on this Agreement is subject to
change from time to time based on changes in an index which is the LENDER'S
PRIME RATE (the "Index"). PRIME RATE IS LENDER'S BASE LENDING RATE AS ANNOUNCED
BY LENDER FROM TIME TO TIME AT ITS SOLE DISCRETION. AT ANY GIVEN TIME, LENDER
MAY MAKE LOANS AT, ABOVE OR BELOW ITS PRIME RATE. Lender will tell Borrower
the current Index rate upon Borrower's request. Borrower understands that
Lender may make loans based on other rates as well. The interest rate change
will not occur more often than each DAY. The Index currently is 8 1/2 % per
annum. The interest rate to be applied to the unpaid principal balance of this
Agreement, including current outstanding balances, will be at the rate of one
(1) percentage point over the Index, resulting in an initial rate of 9 1/2 % per
(2) annum. NOTICE: Under no circumstances will the interest rate on this
(3) Agreement be more than the maximum rate allowed by applicable law.
CONTINUING VALIDITY. Except as expressly changed by this Agreement, the terms
of the Promissory Note remain in full force and effect, including without
limitation, conditions constituting events of default, Lender's rights upon
default and offset rights. In addition, all agreements evidencing or securing
the obligation(s) remain unchanged and in full force and effect, including that
Loan Agreement dated March 30, 1996 (the "Loan Agreement"), as such may have
been modified by written agreement between Borrower and Lender. Consent by
Lender to this Agreement does not waive Lender's right to restrict performance
of the obligation(s) as changed, nor obligate Lender to make any further change
in terms. Nothing in this Agreement will constitute a satisfaction of the
obligation(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 provision 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.
FORBEARANCE. Borrower acknowledges that it is not currently in compliance with
all of the covenants of the Loan Agreement. Lender's forbearance in declaring a
default is in Lender's sole discretion and in no way shall Lender's forbearance
constitute a waiver or forbearance of any right or remedy Lender may have,
including but not limited to, the right or remedy it may have to declare a
default or to protect any of the collateral encumbered by commercial security
agreements. Nothing contained hereof shall be construed as a waiver or
forbearance of any right or remedy of Lender based upon any default or failure
of borrower to pay or perform any and all terms and conditions of the Promissory
Note, this Agreement, the Loan Agreement, or any security agreement, whether
such default exists as of the date hereof or occurs hereafter.
RELEASE. Borrower hereby absolutely and unconditionally releases and forever
discharges Lender, its agents, directors, officers, employees, assigns,
attorneys, and Banc One Corporation ("Banc One") and all of Banc One's
subsidiaries and entities, (collectively, the "Released Parties") from any and
all actions, causes of action, suits, debts, defenses, sums of money,
controversies, claims, counterclaims and demands, of any kind whatsoever, in law
or in equity, whether presently known or unknown, which Borrower may have or
ever had against the Released Parties as of the date hereof.
RATIFICATION. Borrower ratifies, affirms, reaffirms, acknowledges, confirms and
agrees that the Promissory Note and this Agreement and each and every other
document and instrument which evidences or secures the payment of loans to
Lender, including the Loan Agreement, represent a valid and enforceable,
collectible obligation of Borrower, and Borrower further acknowledges that there
are no existing claims, events or rights of set off with respect to any of the
aforementioned instruments or documents, and further acknowledges and represents
that as of the date of the execution of this Agreement, no event has occurred
and no condition exists which constitutes a default by Lender under the Loan
Agreement or other documents, either with or without notice or lapse of time.
MISCELLANEOUS PROVISIONS. Lender may delay or forgo enforcing any of its rights
or remedies under this Agreement without losing them. Obligations of Borrower
under this Agreement are joint and several. Borrower and any other person who
signs, guarantees or endorses this Agreement, to the extent allowed by law,
waive presentment, demand for payment, protest and notice of dishonor. Upon any
change in the terms of this Agreement, and unless otherwise expressly stated in
writing, no party who signs this Agreement, 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 prefect 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. If there is any conflict between the terms of this
Agreement and the terms of the Promissory Note or any other Change in Terms
Agreements, the terms of this Agreement shall control.
PRIOR TO SIGNING THIS AGREEMENT, BORROWER READ AND UNDERSTOOD ALL THE PROVISION
OF THIS AGREEMENT. BORROWER AGREES TO THE TERMS OF THIS AGREEMENT AND
ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS AGREEMENT.
Borrower:
SCIENTIFIC SOFTWARE-INTERCOMP, INC.,
A Colorado corporation
By:__________________________
Xxxxxx Xxxxx, President
