THIRD AMENDMENT TO PROMISSORY NOTE
THIS THIRD AMENDMENT TO PROMISSORY NOTE ("Amendment") is made as of October
16, 2000 between OPEC CORPORATION, a Colorado corporation (the "Borrower"), and
U.S. BANK NATIONAL ASSOCIATION, a national banking association (the "Lender").
RECITALS:
A. The Lender made a loan to the Borrower, which loan is evidenced by that
certain Promissory Note dated August 3, 1998 made by the Borrower payable to the
Lender in the original principal amount of $480,000, as amended by that certain
Change In Terms Agreement dated August 25, 1999 and that certain Second
Amendment to Promissory Note dated as of April 17, 2000 (as so amended, the "L/C
Note").
B. The Lender made a loan to the Borrower, which loan is evidenced by that
certain Combination Promissory Note and Loan Agreement dated April 7, 1998 made
by the Borrower payable to Lender in the original principal amount of $20,000
(the "Term Note" and collectively with the L/C Note, the "Notes").
C. The Borrower and the Lender have entered into that certain Business Loan
Agreement dated August 3, 1998 (the "Loan Agreement").
D. The Borrower's obligations under the Notes and the Loan Agreement are
secured by, INTER ALIA, a security interest in the Borrower's inventory,
equipment, accounts, instruments, chattel paper, other rights to payment and
general intangibles pursuant to those certain Borrower's Security Agreements
dated December 24, 1997 and April 7, 1998 and that certain Commercial Security
Agreement dated August 3, 1998, from the Borrower to Lender (the,"Security
Agreements") and that security interest has been properly perfected. The Notes,
the Loan Agreement, the Security Agreements, and all other instruments executed
by the Borrower in connection therewith are collectively the "Credit Documents."
E. The Borrower's obligations under the Notes and the Loan Agreement are
absolutely and unconditionally guarantied by: (i) those certain Guaranties dated
December 24, 1997, April 7, 1998 and August 3, 1998 made by Xxxxxx X. Xxxxxxxx
("Xxxxxxxx") in favor of the Lender; and (ii) those certain Guaranties dated
December 24, 1997, April 7, 1998 and August 3, 1998 made by Xxxxxx X. Xxxxxx
("Xxxxxx") in favor of the Lender (Xxxxxxxx, and Xxxxxx are, collectively, the
"Guarantors").
F. All amounts of principal and interest outstanding under the L/C Note
were due and payable in full on September 15, 2000. The Borrower has not paid
the amounts outstanding under the L/C Note and the failure to do so constitutes
an "Event of Default" under the Loan Agreement and the Notes.
G. The Borrower has requested that the Lender extend the maturity date of
the L/C Note and the Lender is willing to do so if and only if:
(i) the Borrower and the Lender enter into this Amendment;
(ii) the Borrower causes each of the Guarantors to execute and deliver
to the Lender a consent to This Amendment (the "Guarantor
Consents"), each dated as of the date hereof and in form and
substance satisfactory to the Lender; and the Borrower complies
with the other conditions contained in the Notes, the Loan
Agreement and this Amendment.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals, the agreements
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby covenant and
agree as follows:
1. INCORPORATION OF RECITALS. The foregoing recitals are hereby
incorporated herein and made a part hereof.
2. CONFIRMATION OF INDEBTEDNESS. The outstanding principal balance under
the L/C Note as of October 11, 2000 is $430,000.00. The outstanding principal
balance under the Term Note as of October 11, 2000 is $$4,385.33.
3. AMENDMENT TO L/C NOTE. The terms of the L/C Note are changed as follows:
(a) The caption in the L/C Note entitled "MATURITY 9-15-2000" is
deleted and replaced with "MATURITY 12-31-2000."
(b) The caption in the L/C Note entitled "PRINCIPAL $480,000" is
deleted and replaced with "PRINCIPAL $430,000."
(c) The caption near the top of the L/C Note READING "PRINCIPAL
AMOUNT: $480,000.00" is deleted and replaced with "PRINCIPAL
AMOUNT: $430,000."
(d) The first sentence of the paragraph captioned "PROMISE TO PAY" is
deleted in its entirety and replaced with the following: "OPEC
CORPORATION ("BORROWER") PROMISES TO PAY TO U.S. BANK NATIONAL
ASSOCIATION ("LEADER"), OR ORDER, IN LAWFUL MONEY OF THE UNITED
STATES OF AMERICA, THE PRINCIPAL AMOUNT OF FOUR HUNDRED THIRTY
THOUSAND 00/100 ($430,000.00) OR SO MUCH AS MAY
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be outstanding, together with interest on THE UNPAID OUTSTANDING
PRINCIPAL BALANCE of each advance."
(e) The first sentence of the paragraph captioned "PAYMENT" is
deleted in its entirety and replaced with the following:
"Borrower will pay this loan IN ONE PAYMENT OF ALL OUTSTANDING
PRINCIPAL PLUS ALL ACCRUED UNPAID INTEREST ON DECEMBER 31, 2000."
4. CONDITIONS TO EFFECTIVENESS OF AMENDMENT. This Amendment shall become
effective as of the date first above written when the Lender shall have received
and, as applicable, executed each of the following: (i) an original of this
Amendment, duly executed by the Borrower; (ii) the original Guarantor Consents,
duly executed by each Guarantor, in form and content satisfactory to the Lender;
and (iii) such additional information or documentation as the Lender may
require. If the Lender has not received all of the foregoing on or before the
date first above written, then the Lender's offer to make the agreements set
forth herein may be terminated, at the Lender's option, by giving notice to the
Borrower.
5. GENERAL RELEASE. The Borrower, for and on behalf of itself and its legal
representatives, heirs, successors and assigns, does hereby waive, release,
relinquish and forever discharge the Lender and its past and present directors,
officers, agents, employees, parents, subsidiaries, affiliates, insurers,
attorneys, representatives and assigns, and each and all thereof (collectively,
the "Released Parties"), of and from any and all manner of action or causes of
action, suits, claims, demands, judgments, damages, levies, and the execution of
whatsoever kind, nature and/or description arising on or before the date first
above written, including, without limitation, any claims, losses, costs or
damages, including compensatory and punitive damages, in each case whether known
or unknown, liquidated or unliquidated, fixed or contingent, direct or indirect,
which the Borrower, or its legal representatives, heirs, successors or assigns,
ever had or now has or may claim to have against any of the Released Parties,
with respect to any matter whatsoever arising on or before said date.
6. EFFECT OF AMENDMENT; REPRESENTATIONS AND WARRANTIES. The Lender and the
Borrower agree that after this Amendment becomes effective, the L/C Note, as
hereby amended, shall remain in full force and effect. The Borrower warrants and
represents that on and as of the date hereof and after giving effect to this
Amendment, there will exist no event of default under any of the Credit
Documents, or circumstances that with the giving of notice, the passage of time
or both will constitute an event of default under any of the Credit Documents on
such date. The Borrower represents and warrants that it has the power and legal
eight and authority to enter into this Amendment, and that neither this
Amendment, nor the agreements contained herein, contravene or constitute a
default under any agreement, instrument or indenture to which the Borrower is a
party or signatory or any provision of the Borrower's articles of incorporation,
bylaws, or, to the best of the Borrower's knowledge, any other agreement or
requirement of law. The Borrower represents and warrants that no consent,
approval or authorization of or
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registration or declaration with any party, including belt not limited to any
governmental authority, is required in connection with the execution and
delivery by the Borrower of this Amendment, or the performance of the
obligations of the Borrower herein described.
7. RATIFICATION OF CREDIT DOCUMENTS. Except as expressly modified under
this Amendment, all of the terms, conditions, provisions, agreements,
requirements, promises, obligations, duties, covenants and representations of
the Borrower under the Credit Documents and any and all other documents and
agreements entered into with respect to the Borrower's obligations under the
Credit Documents are incorporated herein by reference and are hereby ratified
and affirmed in all respects by the Borrower. The Borrower further acknowledges
and agrees that the security interests created by the Security Agreements
continue to secure the obligations of the Borrower under the Term Note, the Loan
Agreement and the L/C Note, as amended by this Agreement.
8. MERGER AND INTEGRATION, SUPERSEDING EFFECT. This Amendment embodies the
entire agreement and understanding between the parties hereto with respect to
the subject matter hereof and supersedes and has merged into it ALL PRIOR and
written agreements in the same subjects by and between the parties hereto with
the effect that this Amendment shall control.
9. GOVERNING LAW. THIS AMENDMENTS IS GOVERNED BY THE LAWS OF THE STATE OF
COLORADO.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the date and year first above written.
OPEC CORPORATION, a Colorado corporation
By /s/ Xxxxxx X. Xxxxxxxx, Pres.
-------------------------------------
Xxxxxx X. Xxxxxxxx, President
U.S. BANK NATIONAL ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx, Assistant Vice
President
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STATE OF COLORADO )
)ss.
COUNTY OF _______ )
On this day before me, the undersigned Notary Public personally appeared
Xxxxxx X. Xxxxxxxx, the President of Opec Corporation, personally known to me or
proved to me on the basis of satisfactory evidence to be an authorized officer
of said corporation who executed the Third Amendment to Promissory Note and
acknowledged the Third Amendment to Promissory Note to be the free and voluntary
act and deed of the corporation, by authority of its Bylaws or by resolution of
its board of directors, for the uses and purposes therein mentioned, and on oath
stated that he is authorized to execute the Third Amendment to Promissory Note
and in fact executed the Third Amendment to Promissory Note on behalf of the
corporation.
Given under my hand and official seal thin 12th day of October, 2000.
By Claire Xxxx Xxxxxxxx Residing at 0000 Xxxxxxx Xx.
------------------------------- ----------------------------
Notary Public in and for My commission expires 02/23/2002
the State of Minnesota
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CONSENT OF GUARANTOR(1)
Pursuant to those certain Guaranties dated December 24, 1997, April 7, 1993
and August 3, 1995 (the "Guaranties"), the undersigned has unconditionally
guaranteed the payment in full when due of all of Borrower's Indebtedness (as
defined in the Guaranties) to Lender. The undersigned hereby:
(a) consents to the execution and delivery by Borrower and Lender of
the foregoing Third Amendment to Promissory Note (the "Amendment"), and the
other documents described therein;
(b) agrees, confirms and acknowledges that his obligations under the
Guaranties executed by him: (i) are in no way affected or impaired by
reason of the execution and delivery of the Amendment, and the other
documents described therein, (ii) remain in full force and effect. in
accordance with the terms of such Guaranties, and (iii) continue to secure
all amounts outstanding under the L/C Note, as amended by the Amendment,
and the Term Note;
(c) acknowledge that there are no existing offsets, defenses and/or
counterclaims assertable by the undersigned relating to his obligations
under the Guaranties;
(d) agrees, confirms and acknowledges that any indebtedness of the
Borrower to the undersigned, if any, is and at all times shall remain
subordinate to the indebtedness of the Borrower now or hereafter to the
Bank; and
(e) ACKNOWLEDGES THAT: (I) HE HAS READ AND UNDERSTOOD THIS CONSENT AND
THE AMENDMENT IN THEIR ENTIRETY PRIOR TO SIGNING AND FULLY AGREES TO EACH,
ALL AND EVERY PROVISION HEREOF AND THEREOF; AND (II) HE HAS RECEIVED A COPY
HEREOF.
The undersigned hereby expressly releases and discharges the Bank, and each
of its officers, directors, employees, agents and attorneys, from any and all
claims, actions, and liabilities of any kind or nature that the undersigned or
any one claiming through or under him ever had or may now have, whether now
known or HEREAFTER discovered, arising out of or in any way relating to the
lending RELATIONSHIP BETWEEN THE BANK and the undersigned, the Guaranties, or
any course of conduct or obligations prior to the date of this instrument. The
undersigned acknowledges and agrees that he has received the
----------
(1) Capitalized terms used in this Consent without definition have the meanings
given in the foregoing Third Amendment to Promissory Note.
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advice of independent counsel selected by him, or the opportunity to obtain such
advice, before entering into this instrument and have no; relied upon the Bane
or airy of its officers, directors, employees, agents or attorneys concerning
any aspect of this instrument.
Dated: October 12, 2000
/s/ Xxxxxx X. Xxxxxxxx, Pres.
----------------------------------------
Xxxxxx X. Xxxxxxxx
STATE OF COLORADO )
)ss.
COUNTY OF _______ )
On this day before me, the undersigned notary public, personally appeared
Xxxxxx X. Lamella, personally known to me or proved to me on the basis of
satisfactory evidence to be the person that executed the foregoing Consent, and
acknowledged the Consent to be his free and voluntary act and deed, for the uses
and proposes therein mentioned, and on oath stated that he is authorized to
execute this Consent and in fact executed this Consent.
Given under my hand and official seal this 12th day of October, 2000.
By Claire Xxxx Xxxxxxxx Residing at 0000 Xxxxxxx Xx.
------------------------------- ----------------------------
Notary Public in and for My commission expires 02/23/2002
the State of Colorado
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CONSENT OF GUARANTOR(1)
Pursuant to those certain Guaranties dated December 24, 1997, April 7, 1998
and August 3, 1998 (the "Guaranties"), the undersigned has unconditionally
guaranteed the payment in full when due of all of Borrower's Indebtedness (as
defined in the Guaranties) to Lender. The undersigned hereby:
(a) consents to the execution and delivery by Borrower and Lender of
the foregoing Third Amendment to Promissory Note (the "Amendment"), and the
other documents described therein;
(b) agrees, confirms and acknowledges that his obligations under the
Guaranties executed by him: (i) are in no way affected or impaired by
reason of the execution and delivery of the Amendment, and the other
documents described therein, (ii) remain in full force and effect in
accordance with the terms of such Guaranties, and (iii) continue to secure
all amounts outstanding under the L/C Note, as amended by the Amendment,
and the Term Note;
(c) acknowledge that there are no existing offsets, defenses and/or
counterclaims assertable by the undersigned relating to his obligations
under the Guaranties;
{d} agrees, confirms and acknowledges that any indebtedness of the
Borrower to the undersigned, if any, is and at all times shall remain
subordinate to the indebtedness of the Borrower now or hereafter to the
Bank; and
(e) ACKNOWLEDGES THAT: (I) HE HAS READ AND UNDERSTOOD THIS CONSENT AND
THE AMENDMENT IN THEIR ENTIRETY PRIOR TO SIGNING AND FULLY AGREES TO EACH,
ALL AND EVERY PROVISION HEREOF AND THEREOF; AND (II) HE HAS RECEIVED A COPY
HEREOF.
The undersigned hereby expressly releases and discharges the Bank, and each
of its officers, directors, employees, agents and attorneys, from any and all
claims, actions, and liabilities of any kind or nature that the undersigned or
any one claiming through or under him ever had or may now have, whether now
known or hereafter discovered, arising out of or in any way relating to the
lending RELATIONSHIP BETWEEN THE BANK AND the undersigned, the Guaranties, or
any course of conduct or obligations prior to the date of this instrument. The
undersigned acknowledges and agrees that he has received the
----------
(1) Capitalized teens used in this Consent without definition have the meanings
given 111 the foregoing Third Amendment to Promissory Note.
8
advice of independent counsel selected by him, or the opportunity to obtain such
advice, before entering into this instrument and have not relied upon the Bank-
or any of its officers, directors, employees, agents or attorneys concerning my
aspect of this instrument.
Dated: October 12, 2000
STATE OF COLORADO )
)ss.
COUNTY OF _______ )
On this day before me, the undersigned notary public, personally appeared
Xxxxxx X. Xxxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the person that executed the foregoing Consent, and
acknowledged the Consent to be his flee and voluntary act and deed, for the uses
and purposes therein mentioned, and on oath stated that he is authorized to
execute this Consent and in fact executed this Consent.
Given under my hand and official seal this 12th day of October, 2000.
By Claire Xxxx Xxxxxxxx Residing at 0000 Xxxxxxx Xx.
------------------------------- ----------------------------
Notary Public in and for My commission expires 02/23/2002
the State of Colorado
