EXHIBIT 10.32
MODIFICATION OF NOTES
THIS MODIFICATION OF NOTES ("MODIFICATION") dated as of November 30, 1999
(the "MODIFICATION EFFECTIVE DATE") is made and entered into by and between
XXXXX SYSTEMS, INC., a Texas corporation (the "BORROWER") and CHASE BANK OF
TEXAS, NATIONAL ASSOCIATION ("LENDER"), a national banking association.
RECITALS:
WHEREAS, the Borrower has executed and delivered to the Lender (i) that
certain promissory note dated as of August 4, 1997 in the original principal
amount of $8,700,000, (ii)that certain promissory note dated as of November 29,
1996 in the original principal amount of $300,000, (iii) that certain promissory
note dated as of August 4, 1997 in the original principal amount of $600,000 and
(iv) that certain promissory note dated as of March 31, 1999 in the original
principal amount of $1,560,860 (such promissory notes being herein collectively
called the "NOTES"); and
WHEREAS, the Borrower and the Lender have agreed, on the terms and
conditions herein set forth, that the Notes be modified in certain respects;
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, IT IS AGREED:
SECTION 1. MODIFICATION OF NOTES. Each of the Notes is hereby modified by
deferral of the principal payments due on November 30, 1999, December 31, 1999,
January 31, 2000 and February 28, 2000 until the stated maturity dates of the
respective Notes. Payment of accrued and unpaid interest shall not be deferred.
SECTION 2. LIMITATIONS. The amendments set forth herein are limited
precisely as written and shall not be deemed to (a) be a consent to, or waiver
or modification of, any other term or condition of the Loan Agreement (as
defined in the Notes) or any of the other Credit Documents 9as defined in the
Credit Agreement), or (b) except as expressly set forth herein, prejudice any
right or rights which the Lender may now have or may have in the future under or
in connection with the Loan Agreement, the Credit Documents or any of the other
documents referred to therein. Except as expressly modified hereby or by express
written amendments thereof, the terms and provisions of the Loan Agreement, the
Notes, and any other Credit Documents or any other documents or instruments
executed in connection with any of the foregoing are and shall remain in full
force and effect. In the event of a conflict between this Modification and any
of the foregoing documents, the terms of this Modification shall be controlling.
The representations and warranties made in each Credit Document are true and
correct in all material respects on and as of the Modification Effective Date.
SECTION 3. PAYMENT OF EXPENSES. The Borrower agrees, whether or not the
transactions hereby contemplated shall be consummated, to reimburse and save the
Lender harmless from and against liability for the payment of all reasonable
substantiated out-of-pocket costs and expenses arising in connection with the
preparation, execution, delivery, amendment, modification, waiver and
enforcement of, or the preservation of any rights under this Modification,
including, without limitation, the reasonable fees and expenses of any local or
other counsel for the Lender, and all stamp taxes (including interest and
penalties, if any), recording taxes and fees, filing taxes and fees, and other
charges which
may be payable in respect of, or in respect of any modification of, the Loan
Agreement and the other Credit Documents. The provisions of this Section shall
survive the termination of the Loan Agreement and the repayment of the Notes.
SECTION 4. GOVERNING LAW. This Modification and the rights and obligations
of the parties hereunder and under the Loan Agreement shall be construed in
accordance with and be governed by the laws of the State of Texas and the United
States of America.
SECTION 5. DESCRIPTIVE HEADINGS, ETC. The descriptive headings of the
several Sections of this Modification are inserted for convenience only and
shall not be deemed to affect the meaning or construction of any of the
provisions hereof.
SECTION 6. ENTIRE AGREEMENT. This Modification and the documents referred
to herein represent the entire understanding of the parties hereto regarding the
subject matter hereof and supersede all prior and contemporaneous oral and
written agreements of the parties hereto with respect to the subject matter
hereof, including, without limitation, any commitment letters regarding the
transactions contemplated by this Modification.
SECTION 7. COUNTERPARTS. This Modification may be executed in any number
of counterparts and by different parties on separate counterparts and all of
such counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Modification to be
duly executed and delivered by their respective duly authorized offices as of
the date first above written.
NOTICE PURSUANT TO TEX. BUS. & COMM. CODE ss 26.02
THIS MODIFICATION AND ALL OTHER CREDIT DOCUMENTS EXECUTED BY ANY OF THE
PARTIES BEFORE OR SUBSTANTIALLY CONTEMPORANEOUSLY WITH THE EXECUTION HEREOF
TOGETHER CONSTITUTE A WRITTEN LOAN AGREEMENT AND 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.
XXXXX SYSTEMS, INC.,
a Texas corporation
By: /s/ X.X. XXXXX, XX.
Name: X.X. XXXXX, XX.
Title: PRESIDENT
2
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, a national banking
association
By: /s/ XXXXX X. XXXXX
Name: XXXXX X. XXXXX
Title: VICE PRESIDENT
3
The undersigned hereby join in the execution of this Modification to
evidence their consent hereto and their acknowledgment that the Credit Documents
executed by the undersigned shall continue to apply to the Notes, as modified
hereby.
WAY ENERGY SYSTEMS, INC.,
a Delaware corporation
By: /s/ X.X. XXXXX, XX.
Name: X.X. XXXXX, XX.
Title: PRESIDENT
DIAMOND MINI MART, INC.,
a Texas corporation
By: /s/ X.X. XXXXX, XX.
Name X.X. XXXXX, XX.
Title: PRESIDENT
EDCO, INC.,
a Texas corporation
By: /s/ X.X. XXXXX, XX.
Name X.X. XXXXX, XX.
Title: PRESIDENT
XXXXX OIL COMPANY, INC.,
a Texas corporation
By: /s/ X.X. XXXXX, XX.
Name X.X. XXXXX, XX.
Title: PRESIDENT
4
EDCO ENVIRONMENTAL SYSTEMS, INC.,
a Texas corporation
By: /s/ X.X. XXXXX, XX.
Name X.X. XXXXX, XX.
Title: PRESIDENT
IN & OUT MINI MART, INC.,
a Texas corporation
By: /s/ X.X. XXXXX, XX.
Name X.X. XXXXX, XX.
Title: PRESIDENT
5
