EXHIBIT 10.1
FINANCING AGREEMENT
This Financing Agreement is made and entered into by and between
Summit Financial Resources, L.P., 0000 Xxxx Xxxxxx'x Xxx, Xxxxx 000,
Xxxx Xxxx Xxxx, Xxxx 00000, Attention: Senior Portfolio Manager, and
Xxxxx'x Liquid Gold-Inc., a Colorado corporation, 0000 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxxxxx.
For good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Definitions. Terms defined in the singular shall have the same
meaning when used in the plural and vice versa. Terms defined in the
UCC shall have the meanings set forth in the UCC, except as otherwise
defined herein. As used herein, the term:
"Acceptable Account" means an Account of Client conforming to the
representations, warranties, and requirements of Section 14, Acceptable
Accounts.
"Accounts" shall have the meaning set forth in the definition of
Collateral.
"Account Debtor" means any person or entity obligated for payment
of an Account.
"Account Debtor Dispute" means any delay or failure of an Account
Debtor to timely pay an Account or any portion of an Account for any
reason which is not solely a Credit Problem, including, without
limitation, any dispute with or claim against Client (whether or not
relating to the goods sold or services performed giving rise to the
Account), whether or not valid, setoff, deduction, or any other alleged
defense or counterclaim. An Account subject to both a Credit Problem and
an Account Debtor Dispute shall be treated as subject only to an Account
Debtor Dispute. An Account subject to both an Insolvency Event and an
Account Debtor Dispute shall be treated as subject only to an Account
Debtor Dispute.
"Account Due Date" means Ninety (90) days from the date of the
invoice evidencing the Account. "Advance" means an advance of any
portion of the Purchase Price to or on behalf of Client.
"Advance Rate" means Seventy Percent (70%), or such other Percent
as may be determined from time to time by Summit in its sole discretion.
"Agreement" means this Financing Agreement, together with any
amendments, addenda, and modifications.
"Authorized Overadvance" means an Overadvance authorized in
writing by Summit.
"Banking Business Day" means any day not a Saturday, Sunday, legal
holiday in the State of Utah, or day on which national banks in the
State of Utah are authorized to close.
"Chargeback Account" means an outstanding Purchased Account which
is past the Account Due Date or is determined to no longer be an
Acceptable Account.
"Client" means Xxxxx'x Liquid Gold Inc., a corporation organized
and existing under the laws of the State of Colorado, its successors and
assigns.
"Collateral" means the following personal property of Client,
wherever located, now owned or existing or hereafter acquired or created,
all additions and accessions thereto, all replacements, insurance or
condemnation proceeds, all documents covering any of the Collateral, all
leases of any of the Collateral, all rents, revenues, issues, profits and
proceeds arising from the sale, lease, license, encumbrance, collection,
or any other temporary or permanent disposition of any of the Collateral
or any interest therein, all amendments, modifications, renewals,
extensions, and replacements thereof, and all products and proceeds
thereof: (a) all inventory (the "Inventory"); (b) all accounts (the
"Accounts"); (c) any and all promissory notes and instruments payable to
or owing to Client or held by Client; any and all leases under which
Client is the lessor; any and all chattel paper in favor of, owing to,
or held by Client, including, without limitation, any and all
conditional sale contracts or other sales agreements, whether Client is
the original party or the assignee; and any and all security agreements,
collateral and titles to motor vehicles which secure any of the foregoing
obligations; (d) all investment property, including all interest,
dividends or distributions accrued or to accrue thereon, whether or not
due; (e) all documents; (f) all letter-of-credit rights; (g) all
supporting obligations; and (h) all balances, deposits, debts or any
other amounts or obligations of Summit owing to Client, including,
without limitation, any Reserve and any deposit account in which such
Reserve is held, including all interest, dividends or distributions
accrued or to accrue thereon, whether or not due.
"Collateral Management Fee" means Twenty Eight Hundredths Percent
(0.28%) of the face amount of each Purchased Account for each period of
Ten (10) days or portion thereof, that the Purchased Account remains
outstanding until payment in full is applied to the Purchased Account,
due and payable in arrears
"Collected Payments" means collections and payments received by
Summit on Accounts of Client, less all interest, Fees and Charges,
amounts due and payable to Summit by Client, deductions and
setoffs. Credits for Collected Payments shall be provisional and subject
to final payment and collection of the deposited item. For purposes of
calculating interest owing, Collected Payments delivered to a bank or
other agent on behalf of Summit shall be deemed received Four (4)
Banking Business Days after the date of receipt of advice by Summit from
the bank or agent that the Collected Payments have been credited to the
account of Summit.
"Credit Problem" means any delay or failure of an Account Debtor
to timely pay an Account or any portion of an Account due solely to
financial or cash flow problems of the Account Debtor.
"Daily Funds Rate" means the prime rate as announced in the Wall
Street Journal plus One Percent (1.00%) divided by 360. The initial
prime rate shall be the prime rate in effect on the date of this
Agreement. The Daily Funds Rate may be adjusted from time to time as
of the date of any change in the prime rate.
"Default Rate" means the Daily Funds Rate plus Ten Percent (10%)
per annum.
"Event of Default" shall have the meaning set forth in Section 26,
Default and Remedies.
Fees and Charges" means the Origination Fee, the Renewal Fees, the
Collateral Management Fees, the Supplemental Fee, and the Other Charges.
"Financing Period" means an initial period of One (1) year
commencing on the date of this Agreement and thereafter successive
periods of One (1) year each commencing upon completion of each prior
Financing Period.
"Insolvency Event" means the filing of a voluntary or involuntary
petition in bankruptcy under Title 11 of the United States Code or an
assignment for the benefit of creditors, within Ninety (90) days of the
invoice date.
"Inventory" shall have the meaning set forth in the definition of
Collateral.
"Maximum Credit Line" means One Million Two Hundred Thousand
Dollars ($1,200,000) or such other amount as may be determined from
time to time by Summit in its sole discretion.
"Monthly Minimum" means Fifteen Hundredths Percent (0.15%) of the
Maximum Credit Line.
"Origination Fee" means Waived
"Other Charges" means the following fees and charges:
a. Any Payment Conversion Fees.
b. All other charges and fees which may be charged by
Summit pursuant to this Agreement, other than the Origination Fee,
Renewal Fees, Collateral Management Fee, and Supplemental Fee.
"Outstanding Advances" means Advances for which Summit has not
received Collected Payments in full and includes Advances against
Chargeback Accounts for which Collected Payments in full have not been
received and the full re-purchase price has not been paid.
"Overadvance" means (a) the amount by which the Outstanding
Advances exceed the Maximum Credit Line, or (b) the amount by which the
Outstanding Advances exceed Purchased Accounts which are not Chargeback
Accounts multiplied by the Advance Rate.
"Payment Conversion Fee" means Ten Percent (10%) of any payment
received by Client on a Purchased Account which is not tendered to
Summit as required in this Agreement.
"Purchase Price" of an Account means the face amount of the
Account less all interest and Fees and Charges.
"Purchased Account" means an Account that has been purchased by
Summit pursuant to Xxxxxxx 0, Xxxxxxxx of Accounts.
"Qualified Bank Financing" means financing provided directly by a
full service commercial bank whose deposits are insured by the Federal
Deposit Insurance Corporation in the form of a revolving line of credit
for which the primary collateral is Client's Accounts. Financing
provided by a subsidiary, affiliate or division of such a bank does not
qualify as Qualified Bank Financing.
"Renewal Fee" means Waived.
"Reserve" means such amount as may be determined from time to time
by Summit in its sole discretion.
"Settlement Date" means dates set by Summit, which dates shall be
at least weekly.
"Summit" means Summit Financial Resources, L.P., a Hawaii limited
partnership, its successors and assigns.
"Supplemental Fee" means the amount by which the Monthly Minimum
exceeds amount of interest on Advances and Collateral Management Fees
each calendar month, prorated for the first and last months of this
Agreement.
"UCC" means the Uniform Commercial Code, as adopted now or in the
future in the State of Utah.
2. Purchase of Account.
Client shall request purchase of Accounts by submitting to Summit
a Schedule of Accounts and Xxxx of Sale, copies of the invoices listed
on the Schedule of Accounts and Xxxx of Sale, supporting documentation
for such invoices as requested by Summit, and such other documentation
as required by Summit. Summit shall notify Client which Accounts are
purchased by providing reports to Client.
Unless otherwise agreed in writing by Summit, upon purchase by
Summit of any Account, Client shall thereafter offer all Accounts owing
by that Account Debtor for purchase by Summit. Summit may also require
that all Accounts owing by that Account Debtor which Summit declines to
purchase nonetheless be subject to Section 13 Collection Procedures
and be paid to Summit.
Summit may purchase from Client such Acceptable Accounts as Summit
elects. All purchases shall be subject to the terms and conditions of
this Agreement. THE OBLIGATION OF SUMMIT TO PURCHASE ACCOUNTS FROM
CLIENT IS DISCRETIONARY AND SUMMIT SHALL HAVE NO OBLIGATION TO PURCHASE
ANY ACCOUNT FROM CLIENT, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THIS AGREEMENT. Summit may decline to purchase any Account submitted by
Client for any reason or for no reason, without notice, regardless of
any course of conduct or past purchases of Accounts by Summit. Each
purchase by Summit shall be a true purchase with transfer of all legal
and equitable title and shall not be deemed to be a loan agreement or
secured transaction. Client shall thereafter have no right, title or
interest in or to Purchased Accounts. Client shall make appropriate
entries on its books and records disclosing the sale of Purchased
Accounts to Summit.
Summit shall be the sole and exclusive purchaser of Client's
Accounts. Client will not sell, factor or otherwise finance its
Accounts and shall not grant any other security interest in its
Accounts or Inventory.
3. Purchase Price of Accounts.
The Purchase Price shall be payable as follows: (i) an amount
equal to the face amount of the Account multiplied by the Advance Rate
shall be payable upon purchase of the Account by Summit; and (ii) the
balance of the Purchase Price shall be payable after receipt of Collected
Payments in full for the Purchased Account, such balance to be paid on
the next Settlement Date; provided, however, that notwithstanding
anything to the contrary in this Agreement, Summit shall not be obligated
to make any Advance if, after making the Advance, the amount of all
Outstanding Advances will exceed the Maximum Credit Line.
Payment shall be made in accordance with any written instructions
of Client which are agreed to by Summit. Absent other instructions,
payment shall be made by mailing a check to Client.
4. Interest, Fees and Charges.
Interest shall accrue on Outstanding Advances, both before and
after judgment, from the date of disbursement until receipt of Collected
Payments, at the Daily Funds Rate. Upon occurrence of an Event of
Default, interest on Outstanding Advances shall thereafter accrue, both
before and after judgment, at the Default Rate until receipt of Collected
Payments.
In addition, Client shall pay Summit the Fees and Charges. The
Collateral Management Fees are for monitoring of the Collateral,
collection of the Accounts, and administration of this Agreement. The
Collateral Management Fees are not intended to be and shall not be
construed to be interest.
Interest and Fees and Charges may be deducted from Advances or from
Collected Payments.
5. Recourse Purchases.
Unless specifically designated otherwise in writing by Summit, all
Accounts shall be purchased with recourse and shall become a Chargeback
Account if not paid in full by the Account Due Date.
6. Re-Purchase Obligation and Chargeback Accounts.
If (i) a Purchased Account is not paid in full by the Account Due
Date, or (ii) if at any time Summit determines that the Purchased Account
is no longer an Acceptable Account, the Purchased Account shall thereupon
automatically be a Chargeback Account without any action by Summit.
Client shall immediately re-purchase all Chargeback Accounts by
paying Summit the amount of the outstanding Advance against the
Chargeback Account, plus accrued interest, and Collateral Management
Fees thereon.
Interest shall accrue on Chargeback Accounts at the Default Rate
until the re-purchase amount is paid in full.
7. Overadvance.
Authorized Overadvances shall be due upon demand by Summit.
Authorized Overadvances shall accrue interest at the Daily Funds Rate
plus Three Percent (3.00%) per annum.
If at any time an Overadvance exists which is not an Authorized
Overadvance, Client shall immediately make payment to Summit of an
amount equal to the Overadvance. If such payment is not immediately
made, interest shall accrue on the Overadvance at the Default Rate
regardless of whether Summit waives the Event of Default caused by such
non-payment.
8. Reserve.
Summit may fund the Reserve by withholding amounts owing to Client
for Advances or deducting amounts from Collected Payments.
Upon non-renewal of the Financing Period, termination of the right
of Client to submit Accounts to Summit as provided in Section 19,
Renewal of Financing Period and Termination of Financing, and payment
of all amounts owing to Summit by Client, any balance of the Reserve
shall be paid to Client, provided that if Summit has reasonable grounds
to believe that any collections or other payments received by Summit may
be dishonored, voided, or preferential, or claims may be made against
Summit for which Client would be liable, Summit may continue to hold
the Reserve so long as such matters are outstanding and unresolved.
Summit shall be free to use the Reserve as working capital or as
Summit otherwise determines. Summit shall have no obligation to
segregate, not commingle, or otherwise account for the use of the
Reserve. Client shall not be entitled to any interest on the Reserve.
The Reserve shall be a debt owed to Client by Summit, payable in
accordance with the terms and conditions of this Agreement.
9. Application of Payments and Collections.
Summit may apply payments and recoveries first to Fees and
Charges, second to outstanding and accrued interest, and third to
Outstanding Advances.
10. Setoff and Deduction by Summit.
As to all amounts owing to Summit by Client, Summit may (i) deduct
such amount from Collected Payments received on Accounts, (ii) setoff
and deduct such amount against Advances or any amount owing by Summit
to Client, (iii) demand payment from Client whereupon Client shall
promptly pay such amount to Summit, or (iv) exercise any combination of
the alternatives set forth in this Section or available under this
Agreement, at law, or in equity.
11. Excess Interest.
It is the intent of the parties to comply with any usury law
applicable to this Agreement and to all amounts owing pursuant to this
Agreement and it is understood and agreed that in no event and upon no
contingency shall Client or any guarantor be required to pay interest
in excess of the rate allowed by any laws of any state which are
determined to be applicable and governing. The intention of the parties
being to conform strictly to any applicable usury laws, this Agreement
shall be held to be subject to reduction to the amount allowed under
any applicable and governing usury laws as now or hereafter construed
by the courts having jurisdiction. In the event Summit receives any
interest under this Agreement in excess of any highest permissible rate
under any applicable and governing law, such excess interest (including
simple interest thereon at the highest permissible rate which is
applicable and governing) shall be promptly applied to the amounts owing
by Client hereunder and then to Outstanding Advances. To the extent such
excess interest is greater than such amounts, Summit shall promptly
remit such overage to Client.
12. Reports and Audits.
Upon request, which request may be made as frequently as
determined by Summit, Client will promptly submit to Summit a current
Account Debtor list, which shall include the name, address, contact
person name, phone number and fax number for each active Account Debtor
and such other records and reports concerning its Accounts, Inventory,
the Collateral, and operations as may be requested by Summit.
Client shall, at any reasonable time and from time to time,
permit Summit or any representative of Summit to conduct field audits,
examine, audit, and make copies of and extracts from the records and
books of, and visit and inspect the Collateral, properties and assets
of, Client, and to discuss the affairs, finances, and Accounts of
Client with any of Client's officers, directors, and partners and with
Client's independent accountants.
13. Collection Procedures.
a. Unless directed otherwise in writing by Summit, Client
shall promptly mail an invoice to each Account Debtor on each Purchased
Account, which invoice shall be stamped or printed with a notice, in a
form acceptable to Summit, stating that the Account is payable to Summit
and providing payment instructions. Except as agreed otherwise in writing
by Summit, Summit shall have the exclusive right to collect and to
receive all payments on all Purchased Accounts. Client shall not
otherwise xxxx for, submit any invoice, or otherwise attempt to collect
any Purchased Account, except as authorized in writing by Summit. Summit
is authorized to notify Account Debtors of the assignment and purchase of
Client's Accounts and to direct Account Debtors to make all payments on
Purchased Accounts directly to Summit.
b. Client authorizes Summit to contact Account Debtors
concerning verification and payment of Accounts and to settle or
compromise any Account, in the sole discretion of Summit subject only to
acting in good faith. Client hereby waives and releases any and all
claims relating to or arising out of any act or omission by Summit in
the verification and collection of the Accounts, excluding those based
on gross negligence or intentional misconduct.
c. All collections of Purchased Accounts shall be handled
by Summit. Collection of Accounts in a commercially reasonable manner
does not require, and Summit is not obligated, to commence any legal
action, including the sending of an attorney's demand letter, to collect
any Account. Client acknowledges and agrees that Summit is not a
collection agency and will not provide debt collection services for
Client's Accounts. If any Purchased Account is not timely paid, Summit
may, but is not obligated to, engage a collection agency, attorney or
other service provider to collect Purchased Accounts. All commissions,
fees and charges of any such collection agency, attorney or other
service provider shall be paid by Client. CLIENT HEREBY WAIVES AND
RELEASES ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF ANY ACT OR
OMISSION BY SUMMIT IN THE COLLECTION OF PURCHASED ACCOUNTS, GROSS
NEGLIGENCE AND INTENTIONAL MISCONDUCT EXCEPTED.
d. Client shall promptly and completely respond to all
requests from Summit for any information or records requested to assist
in collection of Accounts. If Client fails to respond to any request
within fifteen (15) days, Summit may deem the Account to no longer be an
Acceptable Account.
e. Upon inquiry from an Account Debtor or upon request of
Summit, Client shall notify the Account Debtor to make payment directly
to Summit.
f. Any payments received by Client on Purchased Accounts
shall be held in trust by Client for Summit. In the event an Account
Debtor makes payment to Client on any Purchased Account, Client shall
immediately notify Summit of the payment and deliver the payment to
Summit. If payment is made in cash, such payment shall be immediately
delivered to Summit. If payment is made by check or similar instrument,
such instrument shall be immediately delivered to Summit in the form
received without negotiation. If payment is made by electronic funds
transfer, Client shall immediately forward such payment to Summit by
electronic funds transfer.
If any payment received by Client on any Purchased Account
is deposited or negotiated by Client, or if Client fails to tender the
payment to Summit within Five (5) Banking Business Days of receipt by
Client, Client shall promptly pay Summit the Payment Conversion Fee.
Client acknowledges and agrees that it has no right, title or
interest whatsoever in the funds constituting payment of Purchased
Accounts, that said funds are the sole and exclusive property of Summit,
and that any use of or interference with said funds by Client will
result in civil and criminal liability.
g. Client shall immediately notify Summit of any dispute
concerning any Purchased Account and of any bankruptcy filing, lien,
garnishment or other legal action concerning any Purchased Account or
Account Debtor.
h. Summit may, but has no duty to, and Client hereby
authorizes Summit to, execute and file, on behalf of Client or in
Summit's name, mechanic's liens and all other notices and documents to
create, perfect, preserve, foreclose and/or release any lien for work
performed or materials provided to improve real property. Except as
otherwise instructed by Summit, Client is authorized to file any such
mechanic's liens and other notices and documents in Client's discretion.
14. Acceptable Accounts.
An Acceptable Account must meet all of the following requirements
and conditions unless waived in writing by Summit.
a. Client has sole and unconditional good title to the
Account and the Account and any goods sold to create the Account are
free from any other security interest, assignment, lien or other
encumbrance of any type.
b. The Account is a bona fide obligation of the Account
Debtor for the amount identified on the records of Client and there have
been no payments, deductions, credits, payment terms, or other
modifications or reductions in the amount owing on such Account except
as reported to Summit in writing prior to making an Advance based on the
Account.
c. The Account must be submitted to Summit within Sixty
(60) days of the date the goods are sold or the services performed
giving rise to the Account are completed.
d. There are no defenses or setoffs to payment of the
Account which can be asserted by way of defense or counterclaim against
Client or Summit.
e. The Account will be timely paid in full by the Account
Debtor.
f. There have been no extensions, modifications, or other
agreements relating to payment of such Account except as reported to
Summit in writing prior to making an Advance.
g. Any services performed or goods sold which give rise
to the Account have been completed and delivered and have been rendered
or sold in compliance with all applicable laws, ordinances, rules and
regulations and were performed or sold in the ordinary course of
Client's business.
h. The Account Debtor is located or authorized to do
business within the United States or the Account has been insured under
a policy of credit insurance from an insurer and upon terms acceptable
to Summit.
i. No proceeding has been commenced or petition filed
under any bankruptcy or insolvency law by or against the Account
Debtor; no receiver, trustee or custodian has been appointed for any
part of the property of the Account Debtor; and no property of the
Account Debtor has been assigned for the benefit of creditors.
j. Neither the Account, nor any invoice, credit
application, xxxx, billing memorandum, correspondence, or any other
document relating to an Account, contracts for or charges interest or
any other charge in excess of the maximum non-usurious rate allowed
pursuant to applicable law.
k. The Account is not past the Account Due Date.
l. If the total of the outstanding Purchased Accounts
owing by any single Account Debtor equals Sixty Percent (60%) or more
of the total outstanding Purchased Accounts owing by all Account
Debtors, the portion of the Purchased Accounts owing by that single
Account Debtor in excess of this limit shall not be Acceptable Accounts.
m. If Twenty-Five Percent (25%) or more of the
outstanding Accounts owing by an Account Debtor are past the Account Due
Date, none of the Accounts owing by that Account Debtor shall be
Acceptable Accounts.
15. Grant of Security Interest.
Client hereby grants Summit a security interest in the Collateral.
Client and Summit acknowledge their mutual intent that all security
interests contemplated herein are given as a contemporaneous exchange
for new value to Client, regardless of when Advances to Client are
actually made or when the Collateral is acquired.
The Collateral shall secure all of Client's present and future
debts, obligations, and liabilities of whatever nature to Summit,
including, without limitation, (a) all obligations of Client under this
Agreement, and (b) transactions in which the documents evidencing the
indebtedness refer to this grant of security interest as providing
security therefore.
Client's obligations under this Agreement may also be secured by
other collateral as may be evidenced by other documentation apart from
this Agreement.
16. Representations, Warranties and Covenants of Client.
Client represents, warrants and covenants that:
a. Client is a corporation organized and existing in good
standing under the laws of the State of Colorado.
b. The complete and exact name of Client is Xxxxx'x Liquid
Gold Inc. The organizational number of Client assigned by its state of
organization is 19871125184. During the five years preceding the date of
this Agreement: (a) Client has not been known by or used any legal,
fictitious or trade name; (b) Client has not changed its name in any
respect; (c) Client has not been the surviving entity of a merger or
consolidation; and (d) Client has not acquired all or substantially all
of the assets of any person or entity.
c. The execution, delivery and performance by Client of
this Agreement have been duly authorized by all necessary action on the
part of Client, and are not inconsistent with any organizational
documents of Client, do not and will not contravene any provision of,
or constitute a default under, any indenture, mortgage, contract or
other instrument to which Client is a party or by which it is bound,
and upon execution and delivery hereof, this Agreement will constitute
a legal, valid and binding agreement and obligation of Client,
enforceable in accordance with its terms.
d. All financial statements of Client, and of any
guarantor of Client's obligations under this Agreement, fully and fairly
present the financial condition of Client and any guarantor as of the
date thereof and the results of operations for the period or periods
covered thereby. Since the date of such financial statements there has
been no material adverse change in the financial condition of Client or
any guarantor. Client agrees to submit financial statements for Client
to Summit and Client shall cause any guarantor to submit financial
statements for such guarantor to Summit as may be requested by Summit,
all such financial statements to fully and fairly present the financial
condition of Client or such guarantor, as the case may be, and to be in
a form and from a firm acceptable to Summit.
e. Client shall conduct its business in a lawful manner
and in compliance with all applicable federal, state, and local laws,
ordinances, rules, regulations, and orders and shall pay when due all
lawfully imposed taxes upon its property, business and income. No later
than the fifth day of each month, Client shall certify in writing to
Summit, in a form acceptable to Summit, that all federal, state, and
other taxes and assessments owing during the prior month have been paid
in full. Such certification shall be accompanied by proof of payment in
a form acceptable to Summit.
f. This Agreement, the financial statements referred to
herein, and all other statements furnished by Client to Summit in
connection herewith contain no untrue statement of a material fact and
omit no material fact necessary to make the statements contained therein
or herein not misleading. Client represents and warrants that it has not
failed to disclose in writing to Summit any fact that materially and
adversely affects, or is reasonably likely to materially and adversely
affect, Client's business, operations, properties, prospects, profits,
condition (financial or otherwise), or ability to perform this
Agreement.
g. No change of control of Borrower or any guarantor
h. shall occur except with prior written consent of
Summit.
Change of control means (1) in the case of a corporation, any
sale, assignment, or other transfer of more than Twenty-Five Percent
(25%) of the stock of such corporation or the persons who are the
directors of such corporation as of the date of this Agreement fail to
constitute a majority of the Board of Directors of such corporation, or
the president or any other executive officer of such corporation
resigns, is terminated, or otherwise ceases to function in such
position; (2) in the case of a general or limited partnership, any sale,
assignment, or other transfer of more than Twenty-Five Percent (25%) of
the general partnership interests of such partnership, any of the persons
or entities who are a general partner of such partnership as of the
date of this Agreement ceases to be a general partner of such
partnership, the occurrence of any change of control in any general
partner in such partnership, or any general manager or person holding
a similar position in such partnership resigns, is terminated, or
otherwise ceases to function in such position; or (3) in the case of a
limited liability company, any of the persons or entities who are
members of such limited liability company as of the date of this
Agreement ceases to be a member of such limited liability company, any
managing member or manager of such limited liability company resigns, is
terminated, or otherwise ceases to function in such position, or the
occurrence of any change of control in any such member, managing member
or manager of such limited liability company.
17. Representations, Warranties and Covenants Concerning Collateral.
Client represents, warrants, and covenants concerning the
Collateral as follows:
a. All Purchased Accounts are Acceptable Accounts.
b. Client is the sole owner of the Collateral.
c. The Inventory and Accounts are not subject to, and
will be kept free and clear of any security interest, lien, assignment,
or other encumbrance of any nature whatsoever except for current taxes
and assessments which are not delinquent, the security interests created
by this Agreement, and assignments and security interests created and
disclosed in writing to Summit prior to execution of this Agreement.
d. Summit is authorized to file UCC Financing Statements
concerning the Collateral. Client agrees to execute any notices of
assignment and other documents reasonably requested by Summit for
perfection or enforcement of the rights and interests of Summit, and to
give good faith, diligent cooperation to Summit, and to perform such
other acts reasonably requested by Summit for perfection and enforcement
of the rights and interests of Summit. Summit is authorized to file,
record, or otherwise utilize such documents as it deems necessary to
perfect and/or enforce any security interest or lien granted hereunder.
e. The place of business of Client, or, if Client has
more than one place of business, the location of its chief executive
office, is located in the state of Colorado. During the five years
preceding the date of this Agreement, this location has not been located
outside of Colorado. This location will not be moved from Colorado
without at least Thirty (30) days prior written notice to Summit.
f. The Collateral and all records of Client pertaining
to the Collateral are located in Colorado. During the five years
preceding the date of this Agreement, the Collateral and all records of
Client pertaining to the Collateral have not been located outside Colorado.
g. Client agrees to insure the Inventory, at Client's
expense, against loss, damage, theft, and such other risks as Summit may
request to the full insurable value thereof with insurance companies and
policies satisfactory to Summit. Summit shall be named as an additional
insured and loss payee under such policies. All such policies shall
provide for a minimum ten days written cancellation notice to Summit.
Upon request, policies or certificates attesting to such coverage shall
be delivered to Summit. Insurance proceeds may be applied by Summit
toward payment of any obligation secured by this Agreement, whether or
not due, in such order of application as Summit may elect.
h. So long as no Event of Default has occurred, Client
shall have the right to sell or otherwise dispose of the Inventory in
the ordinary course of business. No other disposition of the Inventory
may be made without the prior written consent of Summit.
18. Assignment of Rights Concerning Collateral.
Client hereby assigns to Summit all of its interest in and rights
to any Inventory which may be returned by Account Debtors, all rights
as an unpaid vendor or lienor, all rights of stoppage in transit,
repletion and reclamation relating thereto, all rights in and to all
security therefor and guarantees thereof, all rights against third
parties with respect thereto, and all rights under the UCC and any
other law, statute, regulation or agreement.
19. Renewal of Financing Period and Termination of Financing.
Each Financing Period shall automatically renew for an additional
Financing Period unless Client or Summit provides written notice of
non-renewal at least Sixty (60) days prior to the end of the current
Financing Period.
If Client elects to terminate a Financing Period at any time
other than the last day of a Financing Period, except to replace this
financing with Qualified Bank Financing as provided herein, or if an
Event of Default terminates the financing of Client's Accounts, Client
shall pay Summit the Supplemental Fee for the remainder of the
Financing Period. The Supplemental Fee shall be due and payable in full
upon such termination.
Client must provide at least Sixty (60) days written notice to
Summit of intent to replace this financing with Qualified Bank
Financing, which notice shall itemize the material financial terms of
the Qualified Bank Financing. Within Thirty (30) days of receipt of such
notice, Summit may provide written notice to Client that Summit will
match the material financial terms of the Qualified Bank Financing
whereupon Summit and Client shall amend this Agreement to match the
material financial terms of the Qualified Bank Financing and this
Agreement shall remain in force.
Upon such non-renewal or termination, all other terms and
provisions of this Agreement, including, without limitation, the
security interests granted in favor of Summit, shall remain in full
force and effect until all amounts owing to Summit hereunder have been
finally paid in full, except that Client shall be excused from the
covenants herein providing that Summit shall be the sole and exclusive
purchaser and source of financing for Client's Accounts.
Upon expiration of the final Financing Period or any other
termination, at the election of Summit, all outstanding Purchased
Accounts will immediately be Chargeback Accounts and all amounts owing
to Summit by Client pursuant to this Agreement shall, without notice of
such election, accelerate and become immediately due and payable in full.
20. Right to Perform for Client.
Summit may, in its sole discretion, elect to discharge any
security interest, lien or other encumbrance upon any Accounts, elect
to pay any subcontractor, vendor, materialman, laborer, or other person
to whom Client is obligated, whether or not any mechanic's lien or other
encumbrance has been asserted, and elect to pay any insurance charges
payable by Client or provide insurance as required herein if Client
fails to do so. Any such payments and all expenses incurred in connection
therewith shall be immediately due and payable by Client. Summit shall
have no obligation to discharge any such security interest, lien or other
encumbrance or pay such insurance charges or provide such insurance.
21. Power of Attorney to Endorse Checks.
Client does hereby make, constitute and appoint Summit, and its
designees, as its true and lawful attorneys-in-fact, with full power of
substitution, with full power to endorse the name of Client upon any
checks or other forms of payment on Accounts and to effect the deposit
and collection thereof. This power of attorney is irrevocable and
coupled with an interest. Such power may be exercised at any time.
Client does hereby make, constitute, and appoint Summit, and its
designees, as Client's true and lawful attorneys in fact, with full
power of substitution, such power to be exercised only upon the
occurrence of an Event of Default, to: (a) receive, open, and dispose
of all mail addressed to Client; (b) cause mail relating to Accounts
of Client to be delivered to a designated address of Summit where
Summit may open all such mail and remove therefrom any payment of such
Accounts; and (c) Summit may do any and all other things necessary or
proper to carry out the intent of this Agreement and to perfect and
protect the rights of Summit created under this Agreement. This power
of attorney is irrevocable and coupled with an interest. Exercise of
any of the foregoing powers shall be in the sole discretion of Summit
without any duty to do
22. Disclosure of Information.
Client hereby consents to Summit disclosing to any financial
institution or investor providing financing for Summit or participating
in this financing, any and all information, knowledge, reports and
records, including, without limitation, financial statements, concerning
Client or any guarantor.
23. Interest on Unpaid Amounts and Late Fees.
In the event Client fails to pay any amount owing to Summit when
due, Client agrees to pay interest on such amount from the due date
until paid, both before and after judgment, at the Default Rate.
24. No Third Party Beneficiary.
This Agreement is made for the sole and exclusive benefit of
Summit and Client and is not intended to benefit any third party. No
such third party may claim any right or benefit or seek to enforce any
term or provision of this Agreement.
25. Indemnification.
CLIENT AGREES TO INDEMNIFY SUMMIT FOR ANY AND ALL CLAIMS WHICH
MAY BE ASSERTED AND FOR LIABILITIES AND DAMAGES WHICH MAY BE AWARDED
AGAINST SUMMIT, AND FOR ALL REASONABLE ATTORNEYS FEES, LEGAL EXPENSES
AND OTHER EXPENSES INCURRED IN DEFENDING SUCH CLAIMS, ARISING FROM OR
RELATING IN ANY MANNER TO THE PURCHASE, FINANCING AND/OR COLLECTION OF
ACCOUNTS PURSUANT TO THE TERMS OF THIS AGREEMENT, EXCLUDING CLAIMS
BASED ON THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUMMIT. SUMMIT
SHALL HAVE SOLE AND COMPLETE CONTROL OF THE DEFENSE OF ANY SUCH CLAIMS,
AND IS HEREBY GIVEN AUTHORITY TO SETTLE OR OTHERWISE COMPROMISE ANY
SUCH CLAIMS AS SUMMIT, IN GOOD FAITH, DETERMINES SHALL BE IN ITS BEST
INTERESTS.
26. Default and Remedies.
Time is of the essence of this Agreement. The occurrence of any
of the following events shall constitute a default under this Agreement
and be termed an "Event of Default":
a. Failure by Client to pay any amount to Summit when
due.
b. Client fails in the payment or performance of any
obligation, covenant, agreement, or liability created by this Agreement.
c. Any representation, warranty, or financial statement
made by or on behalf of Client, or any guarantor, proves to have been
materially false or materially misleading when made or furnished.
d. Any default or event which, with the giving of notice
or the passage of time or both, would constitute a default, occurs on
any indebtedness of Client or any guarantor.
e. Client or any guarantor becomes dissolved or
terminated, dies, or experiences a business failure.
f. A receiver, trustee, or custodian is appointed for any
part of Client's or any guarantor's property, or any part of Client's or
any guarantor's property is assigned for the benefit of creditors.
g. Any proceeding is commenced or petition filed under
any bankruptcy or insolvency law by or against Client or any guarantor.
h. Any judgment is entered against Client or any
guarantor which may materially affect Client's or any guarantor's
financial condition.
i. Client or any guarantor becomes insolvent or unable to
pay its debts as they mature.
j. The Purchased Accounts become, for any reason
whatsoever, substantially delinquent or uncollectible.
Waiver of any Event of Default shall not constitute a waiver of
any subsequent Event of Default.
Upon the occurrence of any Event of Default and at any time
thereafter, at the election of Summit and without notice of such
election, Summit may immediately terminate the right of Client to
request Advances, treat all outstanding Purchased Accounts as Chargeback
Accounts, and all obligations of Client to Summit shall accelerate and
become immediately due and payable in full and Summit shall have all
rights and remedies created by or arising from this Agreement and the
following rights and remedies, in addition to all other rights and
remedies existing at law, in equity, or by statute:
a. Summit shall have all the rights and remedies
available under the UCC.
b. Summit shall have the right to enter upon any
premises where the Collateral or records pertaining thereto may be
and take possession of the Collateral and records relating thereto.
c. Upon request of Summit, Client shall, at the expense
of Client, assemble the Collateral and records relating thereto at a
place designated by Summit and tender the Collateral and records to
Summit.
d. notice to Client, Summit may obtain the appointment
of a receiver of the business, property and assets of Client and Client
hereby consents to the appointment of Summit or such person as Summit
may designate as such receiver.
e. Summit may sell, lease or otherwise dispose of any or
all of the Collateral and, after deducting the reasonable costs and
out-of-pocket expenses incurred by Summit, including, without
limitation, (i) reasonable attorneys fees and legal expenses, (ii)
transportation and storage costs, (iii) costs of advertising sale of
the Collateral, (iv) sale commissions, (v) sales tax, (vi) costs for
improving or repairing the Collateral, and (vii) costs for preservation
and protection of the Collateral, and apply the remainder against, or
to hold as a reserve against, the obligations secured by this
Agreement. In connection with the exercise of Summit's rights and
remedies hereunder, Client hereby grants and licenses to Summit and its
transferees (including any retailer, liquidator, auction house,
purchaser of Collateral, etc.), a limited, non-exclusive license in
and to all patents, trademarks and copyrights (whether registered or
unregistered), trade secrets, domain names and addresses, and
intellectual property licenses of Client which are necessary for the
exercise of Summit's rights to sell, lease or otherwise dispose of any
or all of the Collateral. Except in connection therewith, Summit
shall not transfer such license and Summit shall have no other right,
title or interest in and to any patents, trademarks and copyrights
whether registered or unregistered), trade secrets, domain names and
addresses, and intellectual property licenses of Client.
Client and any guarantors shall be liable for all deficiencies
owing on any obligations secured by the Collateral after liquidation
of the Collateral.
Upon occurrence of an Event of Default, the interest rate on
obligations of Client owing to Summit shall be increased to the Default
Rate. After the occurrence of an Event of Default, Summit shall
retain the exclusive right to collect outstanding Chargeback Accounts,
regardless of whether the Chargeback Account has been repurchased by
Client, until all obligations owing to Summit by Client have been paid
in full.
The rights and remedies herein conferred are cumulative and not
exclusive of any other rights or remedies and shall be in addition to
every other right, power and remedy herein specifically granted or
existing at law, in equity, or by statute which Summit might otherwise
have and may be exercised from time to time and as often and in such
order as may be deemed expedient by Summit. No delay or omission by
Summit in the exercise of any such right, power or remedy or in the
pursuance of any remedy shall impair any such right, power or remedy
or be construed to be a waiver of any Event of Default or to be an
acquiescence therein.
27. Payment of Expenses and Attorneys Fees.
Client shall pay all reasonable expenses of Summit relating to
the negotiation, documentation, and administration of this Agreement,
including, without limitation, title insurance, recording fees, filing
fees, fees of collection services, reasonable attorneys fees and legal
expenses, returned check fees, photocopies, postage, audit and field
examination fees and costs, inspection fees, wire transfer fees, and
overnight delivery expenses, whether incurred in making Advances, in
future amendments or modifications to this Agreement, or in ongoing
administration of this financing.
Upon occurrence of an Event of Default, Client agrees to pay all
costs and expenses, including reasonable attorney fees and legal
expenses, incurred by Summit in enforcing or exercising any remedies
under this Agreement or any other rights and remedies.
Client agrees to pay all expenses, including reasonable attorney
fees and legal expenses, incurred by Summit in any bankruptcy
proceedings of any type involving Client, any guarantor, this
Agreement, the Purchased Accounts, or the Collateral, including,
without limitation, expenses incurred in modifying or lifting the
automatic stay, determining adequate protection, use of cash collateral
or relating to any plan of reorganization.
28. Bankruptcy Considerations.
Client covenants that it will notify Summit of any voluntary or
involuntary bankruptcy petition under the United States Bankruptcy Code
filed by or against Client or any guarantor, or any assignment for the
benefit of creditors by Client or any guarantor, within Twenty-Four
(24) hours of any such filing or assignment. Failure to notify Summit
of any such bankruptcy filing or assignment within Twenty-Four (24)
hours shall constitute an Event of Default.
Client acknowledges that this Agreement is a contract to extend
debt financing or financial accommodations to or for the benefit of
Client within the meaning of 11 U.S.C. Section 365(c)(2) and, as such,
may not be assumed or assigned. Summit shall be under no obligation to
provide any financing under this Agreement from and after the filing of
any voluntary or involuntary petition against Client.
29. Limitation of Consequential Damages.
Summit and its general and limited partners, the partners,
members, officers and directors thereof, and the employees,
representatives, agents, and attorneys of Summit, shall not be liable
to Client or any guarantor for consequential damages arising from or
relating to any breach of contract, tort, or other wrong in connection
with the negotiation, documentation, administration of this Agreement
or collection of the Accounts.
30. Force Majeure.
In the event Summit is unable to carryout its obligations under
this Agreement due to reasons beyond its reasonable control, it is
agreed that the obligations of Summit hereunder shall be suspended
during the continuance of such inability, Summit shall not be liable
for damages, and Client shall not be entitled to any refund of amounts
paid, provided that such cause shall be remedied as far as reasonably
possible with all reasonable dispatch.
31. Revival Clause.
If the incurring of any debt by Client or the payment of any
money or transfer of property to Summit by or on behalf of Client or
any guarantor (including collection of any Account) should for any
reason subsequently be determined to be "voidable" or "avoidable" in
whole or in part within the meaning of any state or federal law
(collectively "voidable transfers"), including, without limitation,
fraudulent conveyances or preferential transfers under the United States
Bankruptcy Code or any other federal or state law, and Summit is
required to repay or restore any voidable transfers or the amount or
any portion thereof, or upon the advice of counsel for Summit is advised
to do so, then, as to any such amount or property repaid or restored,
including all reasonable costs, expenses, and attorneys fees of Summit
related thereto, the liability of Client and any guarantor shall
automatically be revived, reinstated and restored and shall exist as
though the voidable transfers had never been made.
32. Joint and Several Liability.
Client and any guarantors shall each be jointly and severally
liable for all obligations and liabilities arising under this Agreement
and the other agreements, documents, obligations, and transactions
contemplated by this Agreement.
33. Severability of Invalid Provisions, Headings, Interpretations of
Agreement.
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
All references in this Agreement to the singular shall be deemed
to include the plural when the context so requires, and visa versa.
References in the collective or conjunctive shall also include the
disjunctive unless the context otherwise clearly requires a different
interpretation.
34. Notices.
All notices which are expressly required to be in writing may
be mailed, postage prepaid, addressed to the address stated at the
beginning of this Agreement, or to such other address which is provided
in accordance with this Section. Any notice so mailed shall be deemed
given Three (3) days after mailing. Any notice otherwise delivered shall
be deemed given when received by the addressee. Any notice which is not
expressly required to be given in writing may be given orally.
35. Survival of Representations, Warranties and Covenants.
All agreements, representations, warranties and covenants made
herein by Client shall survive the execution and delivery of this
Agreement and any bankruptcy proceedings involving Client and shall
continue in effect so long as any obligation to Summit contemplated by
this Agreement is outstanding and unpaid, notwithstanding any
termination of this Agreement.
36. Jury Waiver, Exclusive Jurisdiction of Utah Courts.
CLIENT HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM, WHETHER IN CONTRACT OR
IN TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO
THIS AGREEMENT.
Client acknowledges that by execution and delivery of this
Agreement, Client has transacted business in the State of Utah and
Client hereby voluntarily submits to, consents to, and waives any
defense to the jurisdiction of courts located in the State of Utah as
to all matters relating to or arising from this Agreement.
EXCEPT AS EXPRESSLY AGREED IN WRITING BY SUMMIT, THE STATE AND
FEDERAL COURTS LOCATED IN THE STATE OF UTAH SHALL HAVE SOLE AND
EXCLUSIVE JURISDICTION OF ANY AND ALL CLAIMS, DISPUTES, AND
CONTROVERSIES ARISING UNDER OR RELATING TO THIS AGREEMENT. NO LAWSUIT,
PROCEEDING, ALTERNATIVE DISPUTE RESOLUTION, OR ANY OTHER ACTION
RELATING TO OR ARISING UNDER THIS AGREEMENT MAY BE COMMENCED OR
PROSECUTED IN ANY OTHER FORUM, EXCEPT AS EXPRESSLY AGREED IN WRITING
BY SUMMIT.
37. Assignability.
This Agreement is not assignable or transferable by Client and any
such purported assignment or transfer is void. This Agreement shall be
binding upon the successors of Client. Client acknowledges and agrees
that Summit may assign all or any portion of this Agreement, including,
without limitation, assignment of the rights, benefits and remedies of
Summit hereunder without any assignment of the duties, obligations or
liabilities of Summit hereunder, and may sell participations in this
financing.
38. Integrated Agreement, Amendment, Headings, Governing Law.
This Agreement replaces and supersedes any prior agreement between
Client and Summit. This Agreement and the documents identified or
contemplated herein constitute the entire agreement between Summit and
Client as to the subject matter hereof and may not be altered or
amended except by written agreement signed by Summit and Client. No
provision hereof may be waived by Summit except upon written waiver
executed by Summit. This Agreement shall be governed by and construed
in accordance with the laws of the State of Utah and this Agreement
shall be deemed to have been executed by the parties in the State of
Utah. This Agreement shall not be deemed to have been entered into until
accepted by Summit at its chief executive office in Salt Lake City,
Utah and shall be performed by Summit and the financing administered by
Summit in Salt Lake City, Utah.
Dated: October 31, 2008.
SUMMIT FINANCIAL RESOURCES, L.P.
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Chief Credit Officer
XXXXX'X LIQUID GOLD-INC.,
a Colorado corporation
By: /s/Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
President and Chief Executive Officer
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Chief Financial Officer and Treasurer
ADDENDUM TO FINANCING AGREEMENT
(Inventory Financing)
Summit Financial Resources, L.P., a Hawaii limited partnership
("Summit"), and Xxxxx'x Liquid Gold-Inc. a Colorado corporation
("Client") have entered into a Financing Agreement dated October 31, 2008.
Summit and Client desire to modify the Financing Agreement as set forth
herein and agree as follows:
1. Definitions. Except as otherwise expressly provided herein,
terms assigned defined meanings in the Financing Agreement shall have the
same defined meanings in this Addendum to Financing Agreement.
"Acceptable Inventory" means Inventory which consists of raw
materials and finished goods, provided that such Inventory is subject
to no security interest, lien, or encumbrance of any nature whatsoever
with priority over the security interest created by the Financing
Agreement, except any liens for current taxes which are not delinquent,
such Inventory is in compliance with all of Client's representations and
warranties to Summit, (c) such Inventory is located at Client's place of
business, and (d) such Inventory is acceptable to Summit in all respects.
Inventory which has been manufactured or processed into work in process
shall not be Acceptable Inventory. "Acceptable Inventory" shall not
include Inventory which, in the sole discretion of Summit, is damaged,
out-dated, obsolete, or otherwise unacceptable to Summit.
"Collateral Management Fee / Inventory" means One and Thirty Five
Hundredths Percent (1.35%) of the average outstanding inventory loan
balance, due and payable monthly in arrears.
"Inventory" means inventory as defined in Part (1) of the
definition of Collateral in the Financing Agreement.
2. Inventory Advances. Summit may, in its sole discretion and
without any duty to do so, elect from time to time to make advances
based upon Acceptable Inventory. Advances based upon Acceptable
Inventory shall be made only in accordance with the below formula,
which formula may be changed or modified at any time in the discretion
of Summit without the consent or approval of Borrower:
Advances based upon Acceptable Inventory may be made upon request
of Client so long as the aggregate amount of all advances based upon
Acceptable Inventory outstanding and unpaid does not exceed the lesser
of: (a) Fifty Percent (50.00%) of the lower of cost or market value, as
determined by Summit, of the Acceptable Inventory, (b) Eighty Percent
of the net orderly liquidation value (NOLV) of Acceptable Inventory as
determined by an independent appraiser acceptable to Summit, (c) Two
Hundred Fifty Thousand Dollars ($250,000), (d) Fifty Percent (50.00%)
of Client's outstanding Acceptable Accounts, and (e) together with the
aggregate amount of all other outstanding advances, the Maximum Credit
Line.
Summit may decline to provide inventory financing for any reason
or for no reason, without notice, regardless of any course of conduct
or past inventory financing by Summit.
3. Terms of Inventory Advance. Advances based upon Acceptable
Inventory shall be subject to all fees, including the Collateral
Management Fee / Inventory, commissions, charges, terms and conditions
applicable to any other advance under the Financing Agreement, except
that the "Daily Funds Rate" for purposes of determining charges for
Advances based upon Acceptable Inventory shall mean the Prime Rate
(as published in the Wall Street Journal) plus Three Percent (3.00%).
The Daily Funds Charges shall be due and payable monthly, in arrears.
Advances based upon Acceptable Inventory shall be due and payable
as follows: (a) If at any time the aggregate outstanding amount of such
advances exceeds the amount authorized by this Agreement, such excess
shall be immediately due and payable in full; and (b) all such advances
shall be immediately due and payable in full upon occurrence of an
Event of Default which is not timely cured or upon occurrence of
termination of the right of Client to submit accounts to Summit for
financing.
All amounts owing to Summit relating to advances based upon
Acceptable Inventory may be deducted from advances based upon
accounts, the Rebate, the Reserve, and any other amounts owing to
Client by Summit.
4. Secured by Collateral. The Collateral shall secure all
obligations of Client to Summit arising under or relating to this
Addendum to Financing Agreement.
5. Perpetual Inventory Report. Client agrees to deliver an
inventory report to Summit on the fifteenth (15th) day of each month,
identifying and describing the Acceptable Inventory in form and content
acceptable to Summit.
6. Rights and Remedies. Summit shall be entitled to all rights
and remedies concerning an advance based upon Acceptable Inventory as
are provided for advances under the Financing Agreement.
7. Integrated Agreements. This Addendum to Financing
Agreement, together with the Financing Agreement, and the documents
identified or contemplated therein, constitute the entire agreement
between Summit and Client and may not be altered or amended except by
written agreement signed by Summit and Client. No provision hereof or
thereof may be waived by Summit except upon written waiver executed by
Summit. The Financing Agreement and this Addendum to Financing
Agreement shall be read and construed together as one agreement. This
Addendum to Financing Agreement shall be governed by and construed in
accordance with the laws of the State of Utah and shall be deemed to
have been executed by the parties in the State of Utah.
8. Financing Agreement Remains in Full Force and Effect.
Except as expressly modified by this Addendum to Financing Agreement,
the Financing Agreement remains in full force and effect.
Dated: October 31, 2008.
SUMMIT FINANCIAL RESOURCES, L.P.
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Its: Chief Credit Officer
Xxxxx'x Liquid Gold-Inc.
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Its: President and Chief Executive Officer
The undersigned, constituting all of the guarantors of the obligations
of Client under the Financing Agreement pursuant to Guarantee dated
October 31, 2008, hereby consent to and authorize the foregoing
Addendum to Financing Agreement (Inventory Financing) and agree and
acknowledge that the obligations of Client created thereunder will be
subject to and guaranteed by the Guarantor.
XXXXX'X LIQUID GOLD-INC.
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Its: President and Chief Executive Officer
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Its: Chief Financial Officer and Treasurer
