EXHIBIT 10.1
CHANGE IN TERMS AGREEMENT
Borrower: Xxxxx'x Liquid Gold-Inc. (TIN: 00-0000000)
0000 Xxxxxx Xx.
Xxxxxx, XX 00000
Lender: Citywide Banks
XX Xxx 000
Xxxxxx, XX 00000-0000
(000) 000-0000
Principal Amount: $5,156,641.00
Initial Rate: 8.000%
Date of Agreement: June 28, 2006
DESCRIPTION OF EXISTING INDEBTEDNESS. Original Promissory Note in
the amount of $5,156,641.00 dated June 7, 2006.
DESCRIPTION OF COLLATERAL. First Deed of Trust on property located
at 0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000.
DESCRIPTION OF CHANGE IN TERMS. Effective June 23, 2006 the term of
the Note is extended to June 23, 2021, the Interest Rate is modified
as described in the VARIABLE INTEREST RATE section below and the
Payment is modified as described in the PAYMENT section below.
PROMISE TO PAY. Xxxxx'x Liquid Gold-Inc. ('Borrower') promises to
pay to Citywide Banks (Lender), or order, in lawful money of the
United States of America. the principal amount of Five Million One
Hundred Fifty-six Thousand Six Hundred Forty-one & 00/100 Dollars
($5,156,641.00), together with interest on the unpaid principal
balance from June 28, 2006, until paid in full.
PAYMENT. Subject to any payment changes resulting from changes in
the Index, Borrower will pay this loan in 179 payments of
$49,631.29 each payment and an irregular last payment estimated at
$49,632.58. Borrower's first payment is due July 28, 2006, and all
subsequent payments are due on the same day of each month after
that. Borrower's final payment will be due on June 28, 2021. and
will be for all principal and all accrued interest not yet paid.
Payments include principal and interest. Unless otherwise agreed
or required by applicable law, payments will be applied first to
any accrued unpaid interest; then to principal: then to any unpaid
collection costs; and then to any late charges. Interest on this
Agreement 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 tender may designate in writing.
VARIABLE INTEREST RATE. The interest rate on this Agreement is
subject to change from time to time based on changes in an
independent index which is the Prime Rate as Published in the Wall
Street Journal (the "Index"). The Index is not necessarily the
lowest rate charged by Lender on its loans. If the Index becomes
unavailable during the term of this loan, Lender may designate a
substitute index after notice to Borrower. Lender will tell
Borrower the current Index rate upon Borrower's request. The
interest rate change will not occur more often than each Year.
Borrower understands that Lender may make loans based on other
rates as well. The Index currently is 8.000% per annum. The interest
rate to be applied to the unpaid principal balance of the Note will
be at a rate equal to the Index, resulting in an initial rate of
8.000% per annum. NOTICE: Under no circumstances will the interest
rate on the Note 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 Borrowers
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; MINIMUM INTEREST CHARGE. In any event, even upon full
prepayment of this Agreement, Borrower understands that Lender is
entitled to a minimum interest charge of $25.00. Other than Borrower's
obligation to pay any minimum interest charge, 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 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: Citywide Banks, XX Xxx 000, Xxxxxx, XX 00000-0000.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be
charged 5.000% of the regularly s scheduled payment.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon
final maturity, at Lender's option, and if permitted by applicable
law, Lender may add any unpaid accrued interest to principal and such
sum will bear interest therefrom until paid at the rate provided in
this Agreement (including any increased rate). Upon default, Lender,
at its option, may, if permitted under applicable law, increase the
variable interest rate on this Agreement to 21.000% per annum. The
interest rate will not exceed the maximum rate permitted by 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.
Default in Favor of Third Parties. Borrower defaults under any
loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or
person that may materially affect any of Borrower's property or
Borrower's ability to perform Borrower's obligations under this
Agreement or any of the Related Documents.
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 a
ppointment 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,
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 on 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.
RIGHT OF SETOFF. To the extant 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 indebtedness 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 the 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.
PRIOR NOTE. Original Promissory Note in the amount of $5,156,641.00
dated June 7, 2006.
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 inaccuracies) should be sent to us at
the following address: Citywide Banks Operations Center XX Xxx 000,
Xxxxxx, XX 00000-0000.
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. All 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 deemed 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:
XXXXX'X LIQUID GOLD-INC.
By: /s/ Xxxx Xxxxxxxxx
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Xxxx X. Xxxxxxxxx, CEO & President
of Xxxxx'x Liquid Gold-Inc.
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, Assistant Secretary
of Xxxxx'x Liquid Gold-Inc.
