MODIFICATION TO PROMISSORY NOTE (Line of Credit Note) AND LOAN AGREEMENT
Exhibit
10.3
MODIFICATION
TO
PROMISSORY
NOTE
(Line
of Credit Note)
|
Original Principal
Amount: $7,000,000.00
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Date of Note: _______,
2009
Date of Modification: ___________ |
This Modification to Promissory Note
(Line of Credit Note) and Loan Agreement (this “Modification”) serves to amend
and modify that certain Promissory Note (Line of Credit Note) dated July __,
2009 in the principal sum of Seven Million and 00/100 Dollars ($7,000,000.00),
[if note has been previously
amended, insert the following with respect to each such previous amendment: as
modified by that certain Modification Agreement dated___________ (the
“First
[or “Second,”
etc.]
Modification”),
pursuant to which the face amount of the Note was increased to ______________
($____________)] (the “Note”) and that certain Loan
Agreement dated July __, 2009 [if previously modified, recite,
e.g., “as modified by the First Modification, the Second Modification, etc. as
applicable] (the “Loan
Agreement”), each executed by Premier Power Renewable Energy, Inc., a
Delaware corporation ("Borrower") in favor of Umpqua
Bank, an Oregon corporation ("Bank").
NOW THEREFORE, in
consideration for the mutual covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, Borrower and Bank hereby agree as follows:
1.
Modification of Loan
Agreement. The Loan Agreement is hereby supplemented, amended
and modified to incorporate the following, which shall supersede and prevail
over any presently existing and conflicting provisions thereof:
INCREASE MAXIMUM LINE
AMOUNT: The Maximum Line Amount is hereby increased to
________________________ ($___________).
2. Modification of
Note. The Note is hereby supplemented, amended and modified to
incorporate the following, which shall supersede and prevail over any presently
existing and conflicting provisions thereof.
INCREASE NOTE AMOUNT: The face
amount of the Note is hereby increased to ____________________
($______________).
3. Reaffirmation
of Obligations. Borrower hereby
expressly acknowledges and reaffirms the existence, validity and enforceability
of Borrower’s obligations under the Note, as modified by this Modification (the
“Modified Note”), the
Loan Agreement, as modified by this Modification (the “Modified Loan Agreement”), the
Security Agreement dated July __, 2009 the (“Security Agreement”), and each
of the Loan Documents (as defined in the Loan Agreement). Except as
specifically modified by this agreement, the Note, the Loan Agreement, the
Security Agreement and each of the Loan Documents shall remain unmodified and in
full force and effect.
Modification
to Promissory Note (Line of Credit Note)
1
4. Attorneys'
Fees. In the event of
any dispute or litigation concerning the enforcement, validity or interpretation
of this Modification, or any other Loan Document, the losing party shall pay all
costs, charges and expenses (including reasonable attorneys' fees, expert
witness fees and consultant fees, and all expenses related thereto) incurred by
the prevailing party, regardless of whether any action or proceeding is
initiated relative to such dispute and regardless of whether any such litigation
is prosecuted to judgment. Borrower agrees to pay upon demand all of Bank’s
costs and expenses, including attorneys' fees and Bank's legal expenses,
including expert witness and consultant fees, incurred in connection with the
enforcement of the Note. Bank may pay someone else to help enforce
the Loan Documents, and Borrower shall pay the costs and expenses of such
enforcement. Costs and expenses include Bank's attorneys' fees and
legal expenses whether or not there is a lawsuit, including attorneys' fees and
legal expenses for bankruptcy proceedings (and including efforts to modify or
vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services. Borrower also shall pay all court
costs and such additional fees as may be directed by the
court. Borrower will pay to Bank all such costs and expenses
referenced to in this paragraph on demand, together with interest thereon from
the date of the demand at the Default Rate until paid.
5. Governing
Law. Borrower and Bank agree that this Modification shall be
governed by and construed in accordance with the internal laws of the State of
California without giving effect to any conflicts of law rules of such
state.
6. Joint and
Several Liability. The liability under this Modification, the
Modified Note and the Modified Loan Agreement, of each of the individuals
comprising Borrower, shall be joint and several. Without in any way
limiting the foregoing, a separate action or actions may be brought and
prosecuted against one of such individuals, whether or not an action or actions
also is brought against the other such individual and whether or not the other
such individual is joined in the initial action or actions.
7. Severability. Every provision
of this Modification is intended to be severable. In the event any
term or provision hereof is declared to be illegal or invalid for any reason
whatsoever by a court of competent jurisdiction, such illegality or invalidity
shall not affect the balance of the terms and provisions hereof, which terms and
provisions shall remain binding and enforceable.
8. Modifications. This Modification
and each provision contained herein may be waived, terminated, amended, modified
or supplemented only by means of an instrument in writing signed by Bank and
Borrower.
9. No
Waiver; Remedies. No failure on the
part of Bank to exercise and no delay in exercising any right or remedy will
operate as a waiver; nor will Bank be estopped to exercise any right or remedy
at any future time because of any failure or delay; nor will any single or
partial exercise of any right or remedy preclude any other or further exercise
or the exercise of any other right or remedy. The remedies provided are
cumulative and not exclusive of any remedies provided by law.
10. Entire
Agreement. This
Modification and the Loan Documents contain or expressly incorporate by
reference the entire agreement between Bank and Borrower with respect to the
covered matters and supersede all prior negotiations.
Signatures
appear on following page
Modification
to Promissory Note (Line of Credit Note)
2
In witness whereof, the undersigned
have caused this Modification to Promissory Note (Line of Credit Note) and Loan
Agreement to be executed effective as of _________________ [date].
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BORROWER:
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a
Delaware corporation
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By:
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Xxxx
Xxxxx
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President
and Chief Executive Officer
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BANK:
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UMPQUA
BANK, an Oregon corporation
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By:
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Xxxxxx
Xxxxxx
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Vice
President
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Modification
to Promissory Note (Line of Credit Note)
3
