CHANGE IN TERMS AGREEMENT
Exhibit 10.1
Principal
$84,881.80 |
Loan Date 08-02-2007 |
Maturity 01-02-2008 |
Loan No 479195 |
Call / Coll |
Account |
Officer 025 |
Initials |
||||||||||||||
References
in the shaded area are for Lender’s use only and do not
limit the applicability of this document to any particular loan
or item.
Any
item above containing “***” has been omitted due to
text length limitations.
Borrower: Z-AXIS
CORPORATION
THE QUADRANT — 0000 XXX XXXXXXX XXX. 000 XXXXXXXXX XXXXXXX, XX 00000 |
Principal
Amount: $84,881.80
|
Date of Agreement: August 2, 2007 |
DESCRIPTION
OF EXISTING
INDEBTEDNESS. AN
ORIGINAL PROMISSORY NOTE DATED JUNE 2, 2003 IN THE
PRINCIPAL AMOUNT OF $500,000.00 WITH AN ORIGINAL MATURITY DATE
OF JULY 2, 2004 AND INCLUDING ANY AND ALL SUBSEQUENT
EXTENSIONS OR MODIFICATIONS THEREFROM.
DESCRIPTION
OF CHANGE IN
TERMS. EXTENSION
OF MATURITY DATE FROM AUGUST 2, 2007 TO JANUARY 2,
2008. IN ADDITION, THIS PROMISSORY NOTE WILL NO LONGER EVIDENCE
A REVOLVING LINE OF CREDIT. ALL OTHER TERMS AND CONDITIONS WILL
REMAIN THE SAME.
PROMISE
TO
PAY. Z-AXIS
CORPORATION (“Borrower”) promises to pay COLORADO
BUSINESS BANK (“Lender”), or order, in lawful money of
the United States of America, the principal amount of
Eighty-four Thousand Eight Hundred Eighty-one & 80/100
Dollars ($84,881.80), together with interest on the unpaid
principal balance from August 2, 2007, until paid in
full.
PAYMENT. Subject
to any payment changes resulting from changes in the Index,
Borrower will pay this loan in accordance with the following
payment schedule: one principal payment of $14,881.80 on
August 10, 2007, during which interest continues to accrue
on the unpaid principal balances at an interest rate based on
the COLORADO BUSINESS BANK PRIME RATE (currently 8.250%), plus a
margin of 1.500 percentage points, resulting in an initial
interest rate of 9.750%; 4 monthly consecutive principal
payments of $15,000.00 each, beginning September 2, 2007,
during which interest continues to accrue on the unpaid
principal balances at an interest rate based on the COLORADO
BUSINESS BANK PRIME RATE (currently 8.250%), plus a margin of
1.500 percentage points, resulting in an initial interest
rate of 9.750%; 4 monthly consecutive interest payments,
beginning September 2, 2007, with interest calculated on
the unpaid principal balances at an interest rate based on the
COLORADO BUSINESS BANK PRIME RATE (currently 8.250%), plus a
margin of 1.500 percentage points, resulting in an initial
interest rate of 9.750%; and one principal and interest payment
of $10,083.96 on January 2, 2008, with interest calculated
on the unpaid principal balances at an interest rate based on
the COLORADO BUSINESS BANK PRIME RATE (currently 8.250%), plus a
margin of 1.500 percentage points, resulting in an initial
interest rate of 9.750%. This estimated final payment is based
on the assumption that all payments will be made exactly as
scheduled and that the index does not change; the actual final
payment will be for all principal and accrued interest not yet
paid, together with any other unpaid amounts on this loan.
Notwithstanding the foregoing, the rate of interest accrual
described for any principal only payment stream applies only to
the extent that no other interest rate for any other payment
stream applies. Unless otherwise agreed or required by
applicable law, payments will be applied first to any accrued
unpaid interest; then to principal; then to any late charges;
and then to any unpaid collection costs. Interest on this loan
is computed on a
365/360
simple interest basis; that is, by applying the ratio of the
annual interest rate over a year of 360 days, multiplied by
the outstanding principal balance, multiplied by the actual
number of days the principal balance is outstanding. Borrower
will pay Lender at Lender’s address shown above or at such
other place as Lender may designate in writing.
VARIABLE
INTEREST
RATE. The
interest rate on this loan is subject to change from time to
time based on changes in an index which is the COLORADO BUSINESS
BANK PRIME RATE (the “Index”). Lender will tell
Borrower the current Index rate upon Borrower’s request.
The interest rate change will not occur more often than each
DAY. Borrower understands that Lender may make loans based on
other rates as well. The Index currently is 8.250% per
annum. The interest rate or rates to be applied to the
unpaid principal balance during this loan will be the rate or
rates set forth herein the “Payment” section.
Notwithstanding any other provision of this Agreement, after the
first payment stream, the interest rate for each subsequent
payment stream will be effective as of the last payment date of
the just-ending payment stream. NOTICE: Under no circumstances
will the interest rate on this loan be more than the maximum
rate allowed by applicable law. Whenever increases occur in the
interest rate, Lender, at its option, may do one or more of the
following: (A) increase Borrower’s payments to ensure
Borrower’s loan will pay off by its original final maturity
date, (B) increase Borrower’s payments to cover
accruing interest, (C) increase the number of
Borrower’s payments, and (D) continue Borrower’s
payments at the same amount and increase Borrower’s final
payment.
PREPAYMENT. Borrower
agrees that all loan fees and other prepaid finance charges are
earned fully as of the date of the loan and will not be subject
to refund upon early payment (whether voluntary or as a result
of default), except as otherwise required by law. Except for the
foregoing, Borrower may pay without penalty all or a portion of
the amount owed earlier than it is due. Early payments will not,
unless agreed to by Lender in writing, relieve Borrower of
Borrower’s obligation to continue to make payments
under
the payment schedule. Rather, early payments will reduce the
principal balance due and may result in Borrower’s making
fewer payments. Borrower agrees not to send Lender payments
marked “paid in full”, “without recourse”,
or similar language. If Borrower sends such a payment, Lender
may accept it without losing any of the Lender’s rights
under this Agreement, and Borrower will remain obligated to pay
any further amount owed to Lender. All written communications
concerning disputed amounts, including any check or other
payment instrument that indicates that the payment constitutes
“payment in full” of the amount owed or that is
tendered with other conditions or limitations or as full
satisfaction of a disputed amount must be mailed or delivered
to: COLORADO BUSINESS BANK, ATTN: LOAN OPERATIONS, X.X.
XXX 0000, XXXXXX, XX 00000.
LATE
CHARGE. If
a payment is 11 days or more late, Borrower will be charged
5.000% of the unpaid portion of the regularly scheduled
payment.
INTEREST
AFTER
DEFAULT. Upon
default, including failure to pay upon final maturity, the
interest rate on this loan shall be increased by adding a
5.000 percentage point margin (“Default Rate
Margin”). The Default Rate Margin shall also apply to each
succeeding interest rate change that would have applied had
there been no default. After maturity, or after this loan would
have matured had there been no default, the Default Rate Margin
will continue to apply to the final interest rate described in
this Agreement. However, in no event will the interest rate
exceed the maximum interest rate limitations under applicable
law.
DEFAULT. Each
of the following shall constitute an Event of Default under this
Agreement:
Payment
Default. Borrower
fails to make any payment when due under the Indebtedness.
Other
Defaults. Borrower
fails to comply with or to perform any other term, obligation,
covenant or condition contained in this Agreement or in any of
the Related Documents or to comply with or to perform any term,
obligation, covenant or condition contained in any other
agreement between Lender and Borrower.
False
Statements. Any
warranty, representation or statement made or furnished to
Lender by Borrower or on Borrower’s behalf under this
Agreement or the Related Documents is false or misleading in any
material respect, either now or at the time made or furnished or
becomes false or misleading at any time thereafter.
Insolvency. The
dissolution or termination of Borrower’s existence as a
going business, the insolvency of Borrower, the appointment of a
receiver for any part of Borrower’s property, any
assignment for the benefit of creditors, any type of creditor
workout, or the commencement of any proceeding under any
bankruptcy or insolvency laws by or against Borrower.
Creditor
or Forfeiture
Proceedings. Commencement
of foreclosure or forfeiture proceedings, whether by judicial
proceeding, self-help, repossession or any other method, by any
creditor of Borrower or by any governmental agency against any
collateral securing the Indebtedness. This includes a
garnishment of any of Borrower’s accounts, including
deposit accounts, with Lender. However, this Event of Default
shall not apply if there is a good faith dispute by Borrower as
to the validity or reasonableness of the claim which is the
basis of the creditor or forfeiture proceeding and if Borrower
gives Lender written notice of the creditor or forfeiture
proceeding and deposits with Lender monies or a surety bond for
the creditor or forfeiture proceeding, in an amount determined
by Lender, in its sole discretion, as being an adequate reserve
or bond for the dispute.
Events
Affecting
Guarantor. Any
of the preceding events occurs with respect to any guarantor,
endorser, surety, or accommodation party of any of the
Indebtedness or any guarantor, endorser, surety, or
accommodation party dies or becomes incompetent, or revokes or
disputes the validity of, or liability under, any Guaranty of
the Indebtedness evidenced by this Note.
Change
in
Ownership. Any
change in ownership of twenty-five percent (25%) or more of the
common stock of Borrower.
Loan No: 479195
|
(Continued) | Page 2 |
Adverse
Change. A
material adverse change occurs in Borrower’s financial
condition, or Lender believes the prospect of payment or
performance of the Indebtedness is impaired.
Insecurity. Lender
in good faith believes itself insecure.
LENDER’S
RIGHTS. Upon
default, Lender may declare the entire unpaid principal balance
under this Agreement and all accrued unpaid interest immediately
due, and then Borrower will pay that amount.
ATTORNEYS’
FEES;
EXPENSES. Lender
may hire or pay someone else to help collect this Agreement if
Borrower does not pay. Borrower will pay Lender the reasonable
costs of such collection. This includes, subject to any limits
under applicable law, Lender’s attorneys’ fees and
Lender’s legal expenses, whether or not there is a lawsuit,
including without limitation attorneys’ fees and legal
expenses for bankruptcy proceedings (including efforts to modify
or vacate any automatic stay or injunction), and appeals. If not
prohibited by applicable law, Borrower also will pay any court
costs, in addition to all other sums provided by law.
JURY
WAIVER. Lender and Borrower hereby waive the right to
any jury trial in any action, proceeding, or counterclaim
brought by either Lender or Borrower against the
other.
GOVERNING
LAW. This Agreement will be governed by federal law
applicable to Lender and, to the extent not preempted by federal
law, the laws of the State of Colorado without regard to its
conflicts of law provisions. This Agreement has been accepted by
Lender in the State of Colorado.
DISHONORED
ITEM
FEE. Borrower
will pay a fee to Lender of $32.00 if Borrower makes a payment
on Borrower’s loan and the check or preauthorized charge
with which Borrower pays is later dishonored.
RIGHT
OF
SETOFF. To
the extent permitted by applicable law, Lender reserves a right
of setoff in all Borrower’s accounts with Lender (whether
checking, savings, or some other account). This includes all
accounts Borrower holds jointly with someone else and all
accounts Borrower may open in the future. However, this does not
include any XXX or Xxxxx accounts, or any trust accounts for
which setoff would be prohibited by law. Borrower authorizes
Lender, to the extent permitted by applicable law, to charge or
setoff all sums owing on the debt against any and all such
accounts.
CONTINUING
VALIDITY. Except
as expressly changed by this Agreement, the terms of the
original obligation or obligations, including all agreements
evidenced or securing the obligation(s), remain unchanged and in
full force and effect. Consent by Lender to this Agreement does
not waive Lender’s right to strict performance of the
obligation(s) as changed, nor obligate Lender to make any future
change in terms. Nothing in this Agreement will constitute a
satisfaction of the obligation(s). It is the intention of Lender
to retain as liable parties all makers and endorsers of original
obligation(s), including accommodation parties, unless a party
is expressly released by Lender in writing. Any maker or
endorser, including accommodation makers, will not be released
by virtue of this Agreement. If any person who signed the
original obligation does not sign this Agreement below, then all
persons signing below acknowledge that this Agreement is given
conditionally, based on the representation to Lender that the
non-signing party consents to the changes and provisions of this
Agreement or otherwise will not be released by it. This waiver
applies not only to any initial extension, modification or
release, but also to all such subsequent actions.
SUCCESSORS
AND
ASSIGNS. Subject
to any limitations stated in this Agreement on transfer of
Borrower’s interest, this Agreement shall be binding upon
and inure to the benefit of the parties, their successors and
assigns. If ownership of the Collateral becomes vested in a
person other than Borrower, Lender, without notice to Borrower,
may deal with Borrower’s successors with reference to this
Agreement and the indebtedness by way of forbearance or
extension without releasing Borrower from the obligations of
this Agreement or liability under the indebtedness.
NOTIFY
US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING
AGENCIES. Please
notify us if we report any inaccurate information about your
account(s) to a consumer reporting agency. Your written notice
describing the specific inaccuracy(ies) should be sent to us at
the following address: COLORADO BUSINESS BANK ATTN: LOAN
OPERATIONS 000 00XX XXXXXX XXXXXX, XX 00000.
MISCELLANEOUS
PROVISIONS. If
any part of this Agreement cannot be enforced, this fact will
not affect the rest of the Agreement. Lender may delay or forgo
enforcing any of its rights or remedies under this Agreement
without losing them. Borrower and any other person who signs,
guarantees or endorses this Agreement, to the extent allowed by
law, waive presentment, demand for payment, and notice of
dishonor. Upon any change in the terms of this Agreement, and
unless otherwise expressly stated in writing, no party who signs
this Agreement, whether as maker, guarantor, accommodation maker
or endorser, shall be released from liability. As such parties
agree that Lender may renew or extend (repeatedly and for any
length of time) this loan or release any party or guarantor or
collateral; or impair, fail to realize upon or perfect
Lender’s security interest in the collateral; and take any
other action demand necessary by Lender without the consent of
or notice to anyone. All such parties also agree that Lender may
modify this loan without the consent of or notice to anyone
other than the party with whom the modification is made. The
obligations under this Agreement are joint and several.
PRIOR
TO SIGNING THIS AGREEMENT, BORROWER READ AND UNDERSTOOD ALL THE
PROVISIONS OF THIS AGREEMENT, INCLUDING THE VARIABLE INTEREST
RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE
AGREEMENT.
BORROWER:
Z-AXIS
CORPORATION
By:
/s/ Xxxx
Xxxxxxxx XXXX
XXXXXXXX, CEO/CFO of Z-AXIS
CORPORATION |
By:
/s/ Xxxxxxxxx
X. Xxxxx XXXXXXXXX
X. XXXXX, President of Z-AXIS CORPORATION
|
DISBURSEMENT
REQUEST AND AUTHORIZATION
Principal
$84,881.80 |
Loan Date 08-02-2007 |
Maturity 01-02-2008 |
Loan No 479195 |
Call / Coll |
Account |
Officer 025 |
Initials |
||||||||||||||
References
in the shaded area are for Lender’s use only and do not
limit the applicability of this document to any particular loan
or item.
Any
item above containing “***” has been omitted due to
text length limitations.
Borrower: |
Z-AXIS CORPORATION THE QUADRANT - 0000 XXX XXXXXXX XXX. 000 XXXXXXXXX XXXXXXX, XX 00000 |
Lender: |
COLORADO BUSINESS BANK DENVER 000 00XX XX. XXXXXX, XX 00000 |
LOAN
TYPE.
This
is a Variable Rate Nondisclosable Loan to a Corporation for
$84,881.80 due on January 2, 2008. The reference rate
(based on COLORADO BUSINESS BANK PRIME RATE) is added to the
margin of 1.500%, resulting in an initial rate of 9.750.
PRIMARY
PURPOSE OF LOAN.
The
primary purpose of this loan is for:
o | Personal, Family, or Household Purposes or Personal Investment. |
x Business
(Including Real Estate Investment).
SPECIFIC
PURPOSE.
The
specific purpose of this loan is: CHANGE IN TERMS.
DISBURSEMENT
INSTRUCTIONS.
Borrower
understands that no loan proceeds will be disbursed until all of
Lender’s conditions for making the loan have been
satisfied. Please disburse the loan proceeds of $84,881.80 as
follows:
Other Disbursements:
|
$ | 84,881.80 | ||
$84,881.80 EXTEND & MODIFY
LOAN #479195 (CURRENT BALANCE)
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Note Principal:
|
$ | 84,881.80 |
CHARGES
PAID IN CASH.
Borrower
has paid or will pay in cash as agreed the following charges:
Prepaid Finance Charges Paid in
Cash:
|
$ | 2,000.00 | ||
$2,000.00 LOAN FEE
|
||||
Other charges Paid in
Cash:
|
$ | 15,610.70 | ||
$14,881.80 PRINCIPAL PAYDOWN AS OF
8-10-07
|
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$728.90 INTEREST DUE TO 8-2-07
|
||||
Total Charges Paid in
Cash:
|
$ | 17,610.70 |
AUTHORIZATION.
BORROWER
AUTHORIZES LENDER TO DISBURSE THE LOAN PROCEEDS BY WIRE TRANSFER
WHERE APPROPRIATE AND THIS AUTHORIZATION SHALL CONSTITUTE A
PAYMENT ORDER FOR SUCH TRANSFERS.
FINANCIAL
CONDITION. BY SIGNING THIS AUTHORIZATION, BORROWER REPRESENTS
AND WARRANTS TO LENDER THAT THE INFORMATION PROVIDED ABOVE IS
TRUE AND CORRECT AND THAT THERE HAS BEEN NO MATERIAL ADVERSE
CHANGE IN BORROWER’S FINANCIAL CONDITION AS DISCLOSED IN
BORROWER’S MOST RECENT FINANCIAL STATEMENT TO LENDER. THIS
AUTHORIZATION IS DATED AUGUST 2, 2007.
BORROWER:
Z-AXIS
CORPORATION
By:
/s/ Xxxx
Xxxxxxxx XXXX
XXXXXXXX, CEO/CFO of Z-AXIS
CORPORATION |
By:
/s/ Xxxxxxxxx
X. Xxxxx XXXXXXXXX
X. XXXXX, President of Z-AXIS CORPORATION
|