Exhibit 10.156
Note Modification Agreement
This agreement is dated as of December 15, 2003 (the "Agreement Date"), to be
effective as of December 15, 2003 (the "Effective Date"), by and between Xxxx
Security Products, Inc. alone, and its successors (the "Borrower") and Bank One,
NA, with its main office in Chicago, IL (the "Bank").
WHEREAS, the Borrower executed a Line of Credit Note as evidence of indebtedness
in the original face amount of Five Hundred Thousand and 00/100 Dollars
($500,000.00), dated December 15, 2002 owing by the Borrower to the Bank, as
same may have been amended or modified from time to time (the "Note"), 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;
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. MODIFICATION OF NOTE.
2.1 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 December 15, 2003 to
December 15, 2004.
2.2 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 or by any guarantor herein
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 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.
2.3 Each reference in the Related Documents to any of the Related
Documents shall be a reference to such document as modified herein.
3. 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 herein. All real or personal property described
as security in the Related Documents shall remain as security for the Note and
the obligations of the Borrower in the Related Documents.
4. BORROWER REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants
to the Bank:
4.1 No default or event of default under any of the Related Documents as
modified hereby, nor any event, that, with the giving of notice or the
passage of time or both, would be a default or an event of default
under the Related Documents as modified herein has occurred and is
continuing.
4.2 There has been no material adverse change in the financial conditions
of the Borrower or any other person whose financial statement has been
delivered to the Bank in connection with the Note from the most recent
financial statement received by the Bank.
4.3 Each and all representations and warranties of the Borrower in the
Related Documents are accurate on the date hereof.
4.4 The Borrower has no claims, counterclaims, defenses, or setoffs with
respect to the loan evidenced by the Note or with respect to the
Related Documents as modified herein.
4.5 The Note and the Related Documents as modified herein are the legal,
valid, and binding obligations of the Borrower, enforceable against
the Borrower in accordance with their terms.
4.6 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.
5. BORROWER COVENANTS. The Borrower covenants with the Bank:
5.1 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.
5.2 The Borrower fully, finally, and forever releases and discharges the
Bank and its successors, assigns, directors, officers, employees,
agents, and representatives 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 the Bank 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.
5.3 The Borrower shall pay to the Bank:
5.3.1 All the internal and external costs and expenses incurred 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).
6. 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.
7. INTEGRATION, ENTIRE AGREEMENT, CHANGE, DISCHARGE, TERMINATION, OR WAIVER. The
Note and the Related Documents as modified herein contain the complete
understanding and agreement of the Borrower and the Bank in respect of the loan
and supersede all prior representations, warranties, agreements, arrangements,
understandings, and negotiations. No provision of the Note or the Related
Documents as modified herein may be changed, discharged, supplemented,
terminated, or waived except in a writing signed by the party against whom it is
being enforced.
8. GOVERNING LAW AND VENUE. This agreement is delivered in the State of Texas
and governed by Texas law (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 be 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.
9. 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.
[THIS SPACE HAS BEEN INTENTIONALLY LEFT BLANK]
2
10. NOT A NOVATION. This agreement is a modification only and not a novation. In
addition to all amounts hereafter due under the Note and the Related Documents
as they may be modified herein, 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 above-quoted modification(s), the Note, any 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.
Borrower:
Address: 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000 Xxxx Security Products, Inc.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx Treasurer
------------------------------------
Printed Name Title
Date Signed: 12/29/03
----------------------------
BANK'S ACCEPTANCE
The foregoing agreement is hereby agreed to and acknowledged.
Bank:
Bank One, NA, with its main office in Chicago, IL
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------
Xxxx X. Xxxxxx First Vice President
--------------------------------------------
Printed Name Title
Date Signed: 12/31/03
-----------------------------------
Xxxxxxx MurphyTX000001010487680
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
Amendment to Credit Agreement
This agreement is dated as of December 15, 2003, to be effective as of December
15, 2003 by and between Xxxx Security Products, Inc. (the "Borrower") and Bank
One, NA, with its main office in Chicago, IL (the "Bank"), and its successors
and assigns.
WHEREAS, the Borrower and the Bank entered into a Credit Agreement dated
December 15, 2002, as amended (if applicable) (the "Credit Agreement"); and
WHEREAS, the Borrower has requested and the Bank has agreed to amend the Credit
Agreement as set forth below;
NOW, THEREFORE, in mutual consideration of the agreements contained herein and
for other good and valuable consideration, the parties agree as follows:
1. DEFINED TERMS. Capitalized terms not defined herein shall have the meaning
ascribed in the Credit Agreement.
2. MODIFICATION OF CREDIT AGREEMENT. The Credit Agreement is hereby amended as
follows:
2.1 From and after December 15, 2003, the provision in the Credit
Agreement captioned 4.5 Financial Reports C. is hereby amended as
follows: the portion of the provision now reading: "Within thirty
(30) days after and as of the end of each calendar month" is
amended to read as follows:
Within forty-five (45) days after and as of the end of each
calendar month,
2.2 From and after December 15, 2003, the provision in the Credit
Agreement captioned 4.5 Financial Reports D. is hereby amended as
follows: the portion of the provision now reading: "Within thirty
(30) days after each monthly period," is amended to read as
follows:
Within forty-five (45) days after each monthly period,
2.3 From and after December 15, 2003, the provision in the Credit
Agreement captioned 5.2 J. Debt Service Coverage Ratio is hereby
deleted in its entirety.
3. RATIFICATION. The Borrower ratifies and reaffirms the Credit Agreement and
the Credit Agreement shall remain in full force and effect as modified
herein.
4. BORROWER REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants that (a) the representations and warranties contained in the
Credit Agreement are true and correct in all material respects as of the
date of this agreement, (b) no condition, act or event which could
constitute an event of default under the Credit Agreement or any promissory
note or credit facility executed in reference to the Credit Agreement
exists, and (c) no condition, event, act or omission has occurred, which,
with the giving of notice or passage of time, would constitute an event of
default under the Credit Agreement or any promissory note or credit
facility executed in reference to the Credit Agreement.
5. FEES AND EXPENSES. The Borrower agrees to pay all fees and out-of-pocket
disbursements incurred by the Bank in connection with this agreement,
including legal fees incurred by the Bank in the preparation, consummation,
administration and enforcement of this agreement.
6. EXECUTION AND DELIVERY. This agreement shall become effective only after it
is fully executed by the Borrower and the Bank, and the Bank shall have
received from the Borrower the following documents: Note Modification
Agreement and Notice of Final Agreement.
7. ACKNOWLEDGEMENTS OF BORROWER. The Borrower acknowledges that as of the date
of this agreement it has no offsets with respect to all amounts owed by the
Borrower to the Bank arising under or related to the Credit Agreement on or
prior to the date of this agreement. The Borrower fully, finally and
forever releases and discharges the Bank and its successors, assigns,
directors, officers, employees, agents and representatives from any and all
claims, causes of action, debts and liabilities, of whatever kind or
nature, in law or in equity, of the Borrower, whether now known or unknown
to the Borrower, which may have arisen in connection with the Credit
Agreement or the actions or omissions of the Bank related to the Credit
Agreement on or prior to the date hereof. The Borrower acknowledges and
agrees that this agreement is limited to the terms outlined above, and
shall not be construed as an agreement to change any other terms or
provisions of the Credit Agreement. This agreement shall not establish a
course of dealing or be construed as evidence of any willingness on the
Bank's part to grant other or future agreements, should any be requested.
8. NOT A NOVATION. This agreement is a modification only and not a novation.
Except for the above-quoted modification(s), the Credit Agreement, any loan
agreements, credit agreements, reimbursement agreements, security
agreements, mortgages, deeds of trust, pledge agreements, assignments,
guaranties, instruments or documents executed in connection with the Credit
Agreement, 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 Credit
Agreement and made a part thereof. This agreement shall not release or
affect the liability of any guarantor of any promissory note or credit
facility executed in reference to the Credit Agreement or release any owner
of collateral granted as security for the Credit Agreement. The validity,
priority and enforceability of the Credit Agreement shall not be impaired
hereby. To the extent that any provision of this agreement conflicts with
any term or condition set forth in the Credit Agreement, or any document
executed in conjunction therewith, the provisions of this agreement shall
supersede and control. The Bank expressly reserves all rights against all
parties to the Credit Agreement.
Borrower:
Xxxx Security Products, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------
Xxxxxxx X. Xxxxxxxx Treasurer
------------------------------------------------
Printed Name Title
Date Signed: 12/29/03
Bank:
Bank One, NA, with its main office in Chicago, IL
By: /s/ Xxxx X. Xxxxxx
------------------------------------------------
Xxxx X. Xxxxxx First Vice President
------------------------------------------------
Printed Name Title
Date Signed: 12/31/03
--------------------------------------
Xxxxxxx Xxxxxx XX000000000000000
