EXHIBIT 10.28
MODIFICATION OF VARIABLE RATE
COMMERCIAL REVOLVING OR DRAW NOTE
WHEREAS, heretofore and under date of May 30, 1997, Flex Marketing, Inc.
(hereinafter called "Borrower"), made, executed and delivered to THE CORTLAND
SAVINGS & BANKING COMPANY, (hereinafter "Bank") a Variable Rate Commercial
Revolving or Draw Note (hereinafter "Note"), in the original principal amount of
$150,000.00.
WHEREAS, it is mutually desirable, beneficial and agreeable to the parties
hereto that the terms of the note be modified as hereinafter set out;
NOW THEREFORE, in consideration of the mutual benefits inuring to each
other, it is understood and agreed, by and between the parties hereto, that the
terms and conditions of the Note, are hereby modified as follows:
the Bank and the Borrower do hereby acknowledge that the loan number for
Note #613001001 has been changed to #113010297. The Borrower does also
acknowledg3e that the Bank will xxxx Note #613001001 as paid in full on the
Bank's accounting records, and to transfer all amounts now owing on Note
#613001001 to Note #113010297.
MATURITY DATE: The maturity date on this Note shall be November 1, 1998.
REPAYMENT: In 2 equal installments of principal and interest, each in the
amount of $1,659.14 beginning September 1, 1998, and continuing on the same day
of each successive month thereafter, with a final payment of all unpaid
principal and accrued interest on November 1, 1998 said payments to include both
principal and interest at the above stated rate. The Bank reserves the right to
adjust the monthly principal and interest installment amount, from time to time,
in order to avoid negative amortization.
It is further understood and agreed that all other terms, conditions and
covenants of the Note, not otherwise modified hereby, shall be and remain the
same, and that this Agreement, when executed by the parties hereto, shall be
attached to and become a part of the original Note.
IN WITNESS WHEREOF, this Agreement is executed by the undersigned parties
as of the 28 day of July, 1998.
Flex Marketing, Inc.
/s/ Xxxxxx Xxxxxxx /s/ Xxxxx Xxxxx
-------------------------- -------------------------
Xxxxxx Xxxxxxx, President/Secretary Xxxxx Xxxxx, CEO/Treasurer
ACCEPTED BY: THE CORTLAND SAVINGS & BANKING COMPANY
By: /s/ Xxxx X. Mediate
Xxxx X. Mediate
Assistant Vice President
The undersigned endorsers, guarantors and/or sureties on the above
described Note hereby join in and consent to the above Modification Agreement.
Dated this 28th day of July, 1998.
/s/Xxxxxx Xxxxxxx /s/ Xxx Xxxxxxx /s/ Xxxxx Xxxxx
----------------- --------------- ------------------
Xxxxxx Xxxxxxx Xxx Xxxxxxx Xxxxx Xxxxx
LOAN AGREEMENT
MAY 30, 1997
BORROWER: FLEX MARKETING, INC.
BORROWER ADDRESS: 0000 XXXXXXXX XXXX
XXXXXXXXXX, XX 00000
BANK: The Cortland Savings and Banking Company
BANK ADDRESS: 000 X.Xxxx Xxxxxx, X.X.Xxx 00, Xxxxxxxx, Xxxx 00000
Bank has this date agreed to extend credit to Borrower, subject to the following
terms and conditions:
FACILITY DATE: MAY 30, 1997
FACILITY: VARIABLE RATE COMMERCIAL REVOLVING OR DRAW NOTE
('NOTE'), THE TERMS AND CONDITIONS OF WHICH, AS
AMENDED FORM TIME TO TIME, ARE INCORPORATED
HEREIN BY REFERENCE.
INTEREST RATE: (If not stated in the Note)
FEES: $750.00 LOAN FEE PLUS ALL OUT OF POCKET EXPENSES
REPAYMENT: (If not stated in the Note)
SPECIAL CONDITIONS OF LENDING:
PURPOSE: TO FUND NEW PRODUCT DEVELOPMENT
BORROWER FINANCIAL STATEMENT DATE: APRIL 17, 1997
REPRESENTATIONS AND WARRANTIES
Collateral Ownership and Warranties. The Borrower warrants that the Collateral
is owned free and clear of all liens and encumbrances except as disclosed to the
Bank and set forth on Schedule A which is attached to this Agreement. The
Borrower will execute and deliver any and all mortgages, security agreements,
financing statements or like documents which the Bank, in its sole judgment and
from time to time, may deem necessary or useful in order to perfect its security
interest in the Collateral.
No Defaults. The Borrower further warrants that there exists no condition of
default with respect to any loan, agreement or other obligation which the
Borrower may have with any other person or lender, and that all federal, state
and local tax returns have been filed and all taxes have been paid, as required.
Use of Proceeds. The Borrower agrees to use the proceeds of this loan only for
purposes indicated above.
Financial Statements. In making this commitment, the Bank has relied on
financial statements dated as shown above, prepared by or on behalf of, the
borrower. The Borrower warrants that the financial conditions and supporting
schedules are true and correct and that the conditions reflected by them have
not materially changed between that date and the date of this Agreement.
AFFIRMATIVE COVENANTS
Until such time as all indebtedness under this Agreement or the Note(s) has been
repaid to the bank, the Borrower will:
1. Provide such statements and other supporting information concerning the
Borrower's financial condition as the Bank may periodically request;
including but not limited to (only the items checked apply):
xx CPA Compiled Financial Statements to be provided within 60 DAYS OF
COMPLETION
___ CPA Reviewed Financial Statements to be provided within __________
___ Personal Tax Returns to be provided annually within thirty
(30) days of completion.
xx Corporate Tax Returns to be provided annually within thirty (30)
days of completion.
___ Updated Personal Financial Statements within ______________
2. Pay all federal, state, and local taxes, license fees or similar charges as
such become due;
3. Maintain the Collateral in good order and condition.
4. Allow the Bank to inspect the borrower's premises, books, records and
property to verify furnished statements and the condition of Borrower's
physical assets;
5. Pay, when due, all accounts payable;
6. Maintain compensating balances satisfactory to the Bank; and
Guarantor(s) will annually provide the Bank with (only the items check apply):
xx CPA Compiled Financial Statements to be provided within 60 DAYS OF
COMPLETION
___ CPA Reviewed Financial Statements to be provided within _________
xx Personal Tax Returns to be provided annually within thirty (30)
days of completion.
xx Corporate Tax Returns to be provided annually within thirty (30)
days of completion.
xx Updated Personal Financial Statements within 60 DAYS OF
FISCAL YEAR END
Additional Affirmative Covenants:
NONE.
NEGATIVE COVENANTS
Borrower further agrees that, as long as any indebtedness under this Agreement
or the Note(s) is
outstanding, the Borrower will not, without the Bank's prior written consent:
1. Except normal trade accounts or for reasonable personal, family and
household purposes, incur any indebtedness or lease obligation other than
as contemplated by this Agreement;
2. Guaranty, or otherwise become liable with respect to the obligations of any
other person, firm or corporation or increase liability on any existing
guaranty or obligations;
3. Sell or transfer, except in the ordinary course of business, all or any
substantial part of the Borrower's property;
4. Alter or expand by consolidation, merger, acquisition or otherwise, the
nature or scope of the Borrower's business, or increase the number of
locations at which such business is conducted;
5. Additional Negative Covenants: NONE.
OTHER ITEMS
Prepayment. The Borrower or any Guarantor shall have the right to prepay,
without penalty, all or any part of an outstanding indebtedness, provided only
that interest to the date of prepayment shall be paid prior to any reduction of
principal.
Mutual Acknowledgment. By signing below, the Bank and the Borrower acknowledge
as of the date of this Agreement:
(A) Familiarity with the terms of this Agreement;
(B) Willingness to be bound by the provisions of this Agreement;
(C) From time to time, there may exist other documents or agreements between
the parties relating to this loan transaction, the terms and conditions of
which, unless expressly inconsistent herewith, shall be binding on the
parties hereto and shall be construed with this Agreement;
(D) That, except with respect to legal unenforceability, no amendment,
modification, or subsequent agreement will be effective to vary the terms
of this Agreement, unless it makes specific reference to this Agreement and
is in writing and signed by both the Bank and Borrower;
(E) That, if the facility described above is secured by real estate, the Bank
is under no obligation to distribute any funds from the note until such
time as Bank has received an appraisal acceptable to Bank in its sole
discretion.
(F) Receipt of a copy of the Agreement.
RENEWAL OPTION. THE BANK IS UNDER NO OBLIGATION TO RENEW OR EXTEND THIS
AGREEMENT OR THE NOTE(S) OR TO PROVIDE OTHER FINANCING. THE BANK'S DECISION WITH
RESPECT TO ANY SUCH RENEWALS OR EXTENSIONS OR ADDITIONAL FINANCING WILL BE A
SEPARATE, INDEPENDENT DECISION AND MAY INVOLVE FACTORS OTHER THAN, OR IN
ADDITION TO, THE BORROWER'S CREDIT WORTHINESS OR PRIOR RELATIONSHIP WITH THE
BANK.
RELEASE OF BANK: BORROWER AND ANY GUARANTORS EXECUTING THIS
AGREEMENT ACKNOWLEDGE AND STIPULATE THAT IN CONSIDERATION OF BANK'S AGREEMENT TO
EXTEND THE ABOVE REFERENCED LOAN AGREEMENT THAT THE EXECUTION OF THIS AGREEMENT
REPRESENTS A COMPLETE RELEASE OF ALL CLAIMS, ASSERTED OR UNASSERTED, KNOWN OR
UNKNOWN, CONTINGENT OR EXISTING AS BORROWER AND/OR ANY SUCH GUARANTORS MAY HAVE
AGAINST BANK, ITS OFFICERS, EMPLOYEES AND AGENTS, ARISING OUT OF THE CONDUCT AND
RELATIONSHIP OF THE PARTIES AND THE DOCUMENTS GIVEN IN CONNECTION THEREWITH FROM
THE INCEPTION OF THE RELATIONSHIP BETWEEN BANK AND BORROWER THROUGH THE DATE OF
THIS AGREEMENT.
AGREEMENT DATE:
BANK: BORROWER:
The Cortland Savings and Banking Company FLEX MARKETING, INC.
By:/s/ Xxxx Mediate By:/s/ Xxxxxxx Xxxxxxx
---------------------- ------------------------
XXXX MEDIATE XXXXXX XXXXXXX
Its: ASSISTANT VICE PRESIDENT Its: PRESIDENT/SECRETARY
PARTNERSHIP/CORPORATE GUARANTOR(S):
By:/s/ Xxxxx Xxxxx
---------------------
XXXXX XXXXX
THG CONSTRUCTION MANAGEMENT, INC. Its: CEO/TREASURER
By:/s/ Xxxxx Xxxxx By:______________________
-----------------------
XXXXX XXXXX
Its: PRESIDENT Its:______________________
INDIVIDUAL BORROWERS/GUARANTORS
/s/ Xxxxxxx Xxxxxxx
---------------------
XXXXXX XXXXXXX
GUARANTOR
/s/ Xxx Xxxxxxx
--------------------
XXX XXXXXXX
GUARANTOR
/s/ Xxxxx Xxxxx
--------------------
XXXXX XXXXX
GUARANTOR
MODIFICATION OF VARIABLE RATE
COMMERCIAL REVOLVING OR DRAW NOTE
WHEREAS, heretofore and under date of May 30, 1997, Flex Marketing, Inc.
(hereinafter called "Borrower"), made, executed and delivered to THE CORTLAND
SAVINGS & BANKING COMPANY, (hereinafter "Bank") a Variable Rate Commercial
Revolving or Draw Note (hereinafter "Note"), in the original principal amount of
$150,000.00.
WHEREAS, it is mutually desirable, beneficial and agreeable to the parties
hereto that the terms of the note be modified as hereinafter set out;
NOW THEREFORE, in consideration of the mutual benefits inuring to each
other, it is understood and agreed, by and between the parties hereto, that the
terms and conditions of the Note, are hereby modified as follows:
the Bank and the Borrower do hereby acknowledge that the loan number for
Note #613001001 has been changed to #113010297. The Borrower does also
acknowledg3e that the Bank will xxxx Note #613001001 as paid in full on the
Bank's accounting records, and to transfer all amounts now owing on Note
#613001001 to Note #113010297.
MATURITY DATE: The maturity date on this Note shall be September 1, 1999.
REPAYMENT: In 3 equal installments of principal and interest, each in the
amount of $ 2,462.72 beginning June 1, 1999, and continuing on the same day of
each successive month thereafter, with a final payment of all unpaid principal
and accrued interest on September 1, 1998 said payments to include both
principal and interest at the above stated rate. The Bank reserves the right to
adjust the monthly principal and interest installment amount, from time to time,
in order to avoid negative amortization.
It is further understood and agreed that all other terms, conditions and
covenants of the Note, not otherwise modified hereby, shall be and remain the
same, and that this Agreement, when executed by the parties hereto, shall be
attached to and become a part of the original Note.
IN WITNESS WHEREOF, this Agreement is executed by the undersigned
parties as of the 1 day of June, 1999.
Flex Marketing, Inc.
/s/ Xxxxxx Xxxxxxx /s/ Xxxxx Xxxxx
-------------------------- -------------------------
Xxxxxx Xxxxxxx, President/Secretary Xxxxx Xxxxx, CEO/Treasurer
ACCEPTED BY: THE CORTLAND SAVINGS & BANKING COMPANY
By: /s/ Xxxx X. Mediate
Xxxx X. Mediate
Assistant Vice President
The undersigned endorsers, guarantors and/or sureties on the above
described Note hereby join in and consent to the above Modification Agreement.
Dated this 1st day of June, 1999.
/s/Xxxxxx Xxxxxxx /s/ Xxx Xxxxxxx /s/ Xxxxx Xxxxx
----------------- --------------- ------------------
Xxxxxx Xxxxxxx Xxx Xxxxxxx Xxxxx Xxxxx
NATIONAL BOSTON MEDICAL, INC.
X.X.XXX 1161 * 00 XXXXXX XXXXX, XXXXX 0 * XXXXXX, XXXXXXXXXXXXX 00000
Fax (000) 000-0000 * Toll Free (000) 000-0000 * E-mail: XXXXXXXXX.XXX
LETTER
OF
GUARANTEE
IT IS HEREBY UNDERSTOOD THAT NATIONAL BOSTON MEDICAL, INC. WILL HEREBY
STAND BEHIND THE PROMISORY NOTE BETWEEN FLEX MARKETING INC. AND THE
COURTLAND SAVINGS & BANKING COMPANY. THE MATURITY DATE ON THE
PROMISSORY NOTE FROM THE CORTLAND SAVINGS & BANKING COMPANY IS NOTED
ON THE ORIGINAL NOTE IS SEPTEMBER 1, 1999.
DATED THIS 14TH DAY OF JUNE 15, 1999.
/s/ Xxxxxx X. Xxxxx
---------------------
XXXXXX X. XXXXX
CEO/PRESIDENT
NATIONAL BOSTON MEDICAL, INC.
