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EXHIBIT 10.5
PROMISSORY NOTE
U.S. $3,000,000.00 Denver, Colorado
October 7th, 1998
FOR VALUE RECEIVED, FRONT RANGE CAPITAL CORPORATION ("Borrower") whose
address is 1020 Century Drive Suite 2700 Louisville, CO 80027 promises to pay to
the order of BANKERS' BANK OF THE WEST, a Colorado banking corporation, its
successors or assigns (hereinafter referred to as "Holder" "BBW"), at its
principal office at 1099 18th Street, Suite 2700, Denver, Colorado 80202, or at
such other place or places as Holder from time to time may designate in writing,
the principal sum of Three Million and 00/100 Dollars ($3,000,000.) in lawful
money of the United States, together will, interest from the date hereof at a
per annum rate equal to the average National Prime Rate, as published in the
Wall Street Journal based on a 360 day year ("Interest Rate"). This note is a
revolving draw note and can have multiple advances up to the maximum amount of
Three Million dollars and no/100 ($3,000,000) which may be advanced to more than
one time. The interest rate payable hereunder shall change when and as the
average National Prime Rate changes, whether or not Borrower has notice of such
change. Interest shall accrue daily on the outstanding principal balance of this
Note. Interest accrues on this obligation from the date of closing. The first
interest payment is due on January 5th, 1999 and the successive payments are due
on the fifth day of April, July and October thereafter until maturity. Principal
on this obligation is payable on demand and if no demand annually beginning
October 5th, 1999 ("Maturity Date").
Borrower reserves the right to prepay all or any part of the principal
disbursed hereunder at any time or times during the term of this Note without
penalty or premium.
All payments on this Note shall, at the option of Holder, be applied
first to the payment of late charges, if any, then to the repayment of any sums
advanced by Holder for the payment of any taxes, assessments or other charges
against or accrued in relation to the property securing this Note, then to the
payment of any other sums due from Borrower to Holder pursuant to the Loan
Documents (as defined below) then to the payment of accrued and unpaid interest,
and after all such premiums, charges, sums and interest have been paid, any
remainder shall be applied to reduction of the principal balance hereof.
Borrower specifically agrees that Holder's acceptance of any partial payment of
any sums due hereunder or under any other Loan Documents shall not constitute a
cure of Makers default in making the full payment due, an accord and
satisfaction of any such obligation, or a waiver of any rights and remedies of
Holder whatsoever in connection therewith.
This Note is secured by: (a) a Stock Pledge Agreement dated
concurrently herewith, made by Borrower, as Pledgor, to Holder, as Pledgee, and
pledging the stock described therein (Pledged Stock"); (b) a Loan Agreement of
even date herewith made by and between Borrower and Holder and, (e) any and all
other documents executed to evidence or secure, or executed in connection with
this Note (the documents described in this paragraph, together with this Note,
are collectively referred to as the "Loan Documents").
If any payment of principal or interest on this Note shall become due
on a Saturday, Sunday, or legal holiday under the laws of the State of Colorado,
such payment shall be made on the next succeeding business day. The aggregate of
all interest (whether designated as interest, service charges, points,
prepayment consideration or otherwise) contracted for, chargeable, or receivable
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under this Note and all other Loan Documents shall under no circumstances exceed
the maximum legal rate upon the principal balance of this Note remaining unpaid
from time to time. Any interest in excess of the maximum amount permitted by law
shall be deemed a mistake and canceled automatically and, if theretofore paid,
shall at the option of Holder, either be rebated to Borrower or credited against
the principal amount of this Note.
Time is of the essence hereof. Borrower shall be in default under this
Note: (a) if Borrower defaults in the payment of principal or interest on this
Note when the same shall be in default for a period often (10) days alter
written notice thereof by Holder to Borrower; or (b) Borrower defaults in the
performance of any of the covenants or terms contained in the Loan Documents at
the time when performance is required by such Loan Documents, after giving
effect to any notice and curative provisions contained therein. Upon the
occurrence of a default, at the option of Holder: (a) This Note shall thereafter
bear interest at the rate or ten percent (10%) per annum over the Interest Rate
("Default Rate"), the Default Rate shall change when and as the Interest Rate
changes, whether or not the Borrower has notice of such change; (b) This Note
and, at Holder's option, all other obligations of Borrower to Holder, shall
become and be immediately due and payable without any further demand, notice or
nonpayment, presentment, protest, or notice dishonor, all of which the Burrower
hereby expressly waives; (c) If any payment required by this Note is not paid
within ten (10) days of when it is due, Borrower shall pay to holder a late
charge of live percent (5%) of such payment, this late payment charge intended
to compensate Holder for its additional administrative costs resulting hum
Borrower's failure to make such payment when due, and has been agreed upon by
Borrower and Holder, after negotiation, as reasonable estimate of the additional
administrative costs; and (d) Holder shall have all other rights and remedies
available under the Loan Documents, at law or in equity. Each right and remedy
of holder is cumulative of all other rights and remedies of Holder, whether
conferred by law or in the Loan Documents, and may be enforced concurrently.
Holder's exercise of any right or remedy shall not be deemed a waiver of any
other right or remedy that Holder may have. The failure of Holder to exercise
any available remedy upon a default shall not be taken or construed to be a
waiver of the right to exercise such options for any subsequent default.
Borrower hereby agrees to pay all expenses incurred, including, but not
limited to, reasonable attorneys' fees if this Note is placed in the hands of an
attorney for collection or if this Note is collected through probate, bankruptcy
or other judicial proceedings.
If any term, covenant, condition, agreement, representation or warranty
of this Note or the applicant thereof to any person or circumstance shall, to
any extent, be invalid or unenforceable, the remainder of this Note, or the
application of such term, covenant, condition, agreement, representation or
warranty of this Note shall be valid and enforced to the fullest extent
permitted by law.
Holder may, at its option, bring an action to enforce this Note in the
District Court of the City and County of Denver, Colorado, in the United States
District Court for the District of Colorado or in any other court in which venue
and jurisdiction are proper. Borrower and all signers or endorsers hereof
consent to venue and jurisdiction in the District Court of the City and County
of Denver, Colorado, and in the United Slates District Court for the District of
Colorado in any action brought to enforce this Note.
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All persons or entities now or any time liable, whether primarily or
secondarily, For the payment of the indebtedness hereby evidenced, for
themselves, their heirs, legal representatives, successors, and assigns,
respectively, expressly waive presentment for payment, notice of dishonor,
demand, protest, notice of protest, diligence in collection, and all claims of
exemptions or offsets with respect to this Note and the payments or any part
thereof may be extended by holder without in any way modifying, altering,
releasing, affecting, or limiting their respective liability. This Note shall be
the joint and several obligation of Borrower and all other makers, sureties,
guarantors and endorsers, and their successors and assigns.
Any notices given to Borrower hereunder shall be in writing and shall
be deemed given if served personally or mailed by certified mail, postage
prepaid, addressed to Borrower at Borrower's address stated above, or to such
other address as Borrower may designate by written notice to Holder. Any notice
to Holder shall be in writing and shall be deemed given if served personally on
Holder or mailed by certified wail, postage prepaid, addressed to Holder at
Holder's address stated above, or to such other address as Holder may designate
by written notice to Borrower.
This Note shall be construed in accordance with the internal laws of
the State of Colorado, without reference to its conflict of law provisions.
Where the context so requires, references to any gender shall include the others
and references to the singular shall include the plural and vice versa.
IN WITNESS WHEREOF, Borrower has executed this Note as of the First
date written above.
BORROWER:
FRONT RANGE CAPITAL CORPORATION
ATTEST:
/s/ Alice M. Bier By: /s/ Robert L. Beauprez
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MODIFICATION OF PROMISSORY NOTE
This Modification of Promissory Note is to be affixed to and become a
part of that certain Promissory Note numbered 2076 and dated October 7, 1998
given by Front Range Capital Corporation ("Borrower') in favor of Bankers' Bank
of the West ("Holder" or "BBW"), in the original amount of Three Million and
00/100 dollars ($3,000,000.00), plus interest ("Promissory Note").
WHEREAS, the Borrower hereby acknowledges the Promissory Note as
constituting its lawful and binding undertaking; and
WHEREAS, Borrower and Holder have agreed that certain modifications be
made to the Promissory Note;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Borrower hereby incorporates herein
the foregoing Recitals and does hereby amend the terms of the Promissory Note by
this Modification of Promissory Note as follows:
1. Effective today the Principal commitment is reduced to
$2,700,000.00.
2. Notwithstanding anything to the contrary contained in the Promissory
Note, the Maturity Date of the Promissory Note shall be October 5, 2000. All
outstanding principal and interest accrued under the Promissory Note, ii not
paid in full by said date, shall be due and payable on said date.
3. Except as modified hereby, the Promissory Note dated October 7,
1998, shall remain in full force and effect Borrower hereby reaffirms all of the
terms and conditions of the Promissory Note and the Stock Pledge Agreement and
Loan Agreement of even date which secure the Promissory Note and all other
security instruments and other loan agreements relating to and signed in
connection with the loan evidenced by the Promissory Note, agrees that such
documents continue in full force and effect enforceable by their respective
terms, and hereby waives any defenses, adverse claims, or counterclaims Borrower
may have to its obligation or the enforcement of Holder's rights thereunder.
IN WITNESS WHEREOF, Borrower has signed, scaled and delivered this
Modification of Promissory Note the 5th day of October, 1999.
FRONT RANGE CAPITAL BANKERS' BANK OF THE WEST
CORPORATION
/s/ Robert L. Beauprez /s/ Larry Pisacka
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Robert L. Beauprez, President Larry Pisacka, Senior Vice President
