BUSINESS LOAN AGREEMENT
EXHIBIT 10.1
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Principal
$1,537,612.00
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Loan
Date
02-25-2008
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Maturity
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Loan
No
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Call /
Coll
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Account
MASTER
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Officer
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Initials
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References in
the boxes above are few 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.
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Borrower:
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LANDPIXX,
LLC
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Lender:
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BANK
OF THE WEST
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XXXX
X. XXXXXXXXXX III
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North/West
Denver CBO #21190
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00000
X00XX XXX
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0000
Xxxxxxxxx Xxxxxxx
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XXXXXX.XX 00000
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XX
Xxx 0000
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Xxxxxxxxx,
XX 00000-0000
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(000)
000-0000
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THIS
BUSINESS LOAN AGREEMENT dated February 25, 2008, is made and executed between
LANDPIXX. LLC; and XXXX X. XXXXXXXXXX III ("Borrower") and BANK OF THE WEST
("Lender") on the following terms and conditions. Borrower has received prior
commercial loans from Lender or has applied to Lender for a commercial loan or
loans or other financial accommodations, including those which may be described
on any exhibit or schedule attached to this Agreement. Borrower understands and
agrees that: (A) in granting, renewing, or extending any Loan, Lender is relying
upon Borrower's representations, warranties, and agreements as set forth in this
Agreement; (B) the granting, renewing, or extending of any Loan by Lender at all
times shall be subject to Lender's sole judgment and discretion; and (C) all
such Loans shall be and remain subject to the terms and conditions of this
Agreement.
TERM. This Agreement shall be
effective as of February 25, 2008, and shad continue in full force and effect
until such time as all of Borrower's Loans in favor of Lender have been paid in
full, including principal, interest, costs, expenses, attorneys' fees, and other
fees and charges, or until such time as the parties may agree in writing to
terminate this Agreement.
CONDITIONS PRECEDENT TO EACH ADVANCE.
Lender's obligation to make the initial Advance and each subsequent
Advance under this Agreement shall be subject to the fulfillment to Lender's
satisfaction of all of the conditions set forth in this Agreement and in the
Related Documents.
Loan Documents. Borrower shall
provide to Lender the following documents for the Loan: (1) the Note; (2)
Security Agreements granting to Lender security interests in the Collateral; (3!
financing statements and all other documents perfecting Lender's Security
Interests; (4) evidence of insurance as required below; (5) guaranties; (6)
together with all such Related Documents as Lender may require for the Loan; all
in form and substance satisfactory to Lender and Lender's
counsel.
Payment of Fees and Expenses.
Borrower shall have paid to Lender all fees, charges, and other expenses which
are then due and payable as specified in this Agreement or any Related
Document.
Representations and
Warranties. The representations and warranties set forth in this
Agreement, in the Related Documents, and in any document or certificate
delivered to Lender under this Agreement are true and
correct.
No Event of Default. There
shall not exist at the time of any Advance a condition which would constitute an
Event of Default under this Agreement or under any Related
Document.
MULTIPLE BORROWERS. This
Agreement has been executed by multiple obligors who are referred to in this
Agreement individually, collectively and interchangeably as "Borrower." Unless
specifically stated to the contrary, the word "Borrower" as used in this
Agreement, including without limitation all representations, warranties and
covenants, shall include all Borrowers. Borrower understands and agrees that,
with or without notice to any one Borrower, Lender may (A) make one or more
additional secured or unsecured loans or otherwise extend additional credit with
respect to any other Borrower; (B) with respect to any other Borrower alter,
compromise, renew, extend, accelerate, or otherwise change one or more times the
time for payment or other terms of any indebtedness, including increases and
decreases of the rate of interest on the indebtedness; (C) exchange, enforce,
waive, subordinate, fail or decide not to perfect, and release any security,
with or without the substitution of new collateral; (D) release, substitute,
agree not to xxx, or deal with any one or more of Borrower's or any other
Borrower's sureties, endorsers, or other guarantors on any terms or in any manner Lender may choose; IE)
determine how, when and what application of payments and credits shall be made
on any indebtedness; (F! apply such security and direct the order or manner of
sale of any Collateral, including without limitation, any non-judicial sale
permitted by the terms of the controlling security agreement or deed of trust,
as Lender in its discretion may determine; (G) sell, transfer, assign or grant
participations in all or any part of the Loan; (H) exercise or refrain from
exercising any rights against Borrower or others, or otherwise act or refrain
from acting; (I) settle or compromise any indebtedness; and (J) subordinate the
payment of all or any part of any of Borrower's indebtedness to Lender to the
payment of any liabilities which may be due Lender or others.
REPRESENTATIONS AND
WARRANTIES. Borrower represents and warrants to Lender, as of the date of
this Agreement, as of the date of each disbursement of loan proceeds, as of the
date of any renewal, extension or modification of any Loan, and at all times any
Indebtedness exists:
Organization. LANDPIXX, LLC is
a limited liability company which is, and at all times shall be, duly organized,
validly existing, and in good standing under and by virtue of the taws of the
State of Colorado. LANDPIXX, LLC is duly authorized to transact business in all
other states in which LANDPIXX, LLC is doing business, having obtained all
necessary filings, governmental licenses and approvals for each state in which
LANDPIXX, LLC is doing business. Specifically, LANDPIXX, LLC is, and at all times shall
be, duly qualified as a foreign limited liability company in all states in which
the failure to so qualify would have a material adverse effect on its business
or financial condition. LANDPIXX, LLC has the full power and authority to own
its properties and to transact the business in which it is presently engaged or
presently proposes to engage. LANDPIXX, LLC maintains an office at 00000 X 00XX
XXX, XXXXXX, XX 00000. Unless LANDPIXX, LLC has designated otherwise in writing,
the principal office is the office at which LANDPIXX, LLC keeps its books and
records including its records concerning the Collateral. LANDPtXX, LLC will
notify Lender prior to any change in the location of LANDPIXX, LLC's state of
organization or any change in LANDPIXX, LLC's name. LANDPIXX, LLC shad do all
things necessary to preserve and to keep in full force and effect its existence,
rights and privileges, and shall comply with all regulations, rules, ordinances,
statutes, orders and decrees of any governmental or quasi-governmental authority
or court applicable to
LANDPIXX, LLC and
LANDPIXX, LLC's business activities.
XXXX X.
XXXXXXXXXX III maintains an office at 0000 XXXXXX XXXXX XXXXX XXXXX, XXX 000,
XXXXXX, XX 8OEOO. Unless XXXX X. XXXXXXXXXX III has designated otherwise in
writing, the principal office is the office at which XXXX X. XXXXXXXXXX III
keeps its books and records including its records concerning the Collateral.
XXXX X. XXXXXXXXXX III will notify Lender prior to any change in the location of
XXXX X. XXXXXXXXXX Ill's principal office address or any change in XXXX X.
XXXXXXXXXX Ill's name. XXXX X. XXXXXXXXXX III shall
| (Continued) | Page 2 |
do all
things necessary to comply with all regulations, rules, ordinances, statutes,
orders and decrees of any governmental or quasi-governmental authority or court
applicable to XXXX X. XXXXXXXXXX III and XXXX H, XXXXXXXXXX Ill's business
activities.
Assumed
Business Names. Borrower has filed or recorded all documents or filings required
by law relating to all assumed business names used by Borrower. Excluding the
name of Borrower, the following is a complete list of all assumed business names
under which Borrower does business: None.
Authorization. Borrower's execution, delivery,
and performance of this Agreement and all the Related Documents do not conflict
with, result in a violation of, or constitute a default under (1) any provision
of (a) Borrower's articles of organization or membership agreements, or (b) any
agreement or other instrument binding upon Borrower or (2) any law, governmental
regulation, court decree, or order applicable to Borrower or to Borrower's
properties.
Financial Information. Each of Borrower's
financial statements supplied to Lender truly and completely disclosed
Borrower's financial condition as of the date of the statement, and there has
been no material adverse change in Borrower's financial condition subsequent to
the date of the most recent financial statement supplied to Lender. Borrower has
no material contingent obligations except as disclosed in such financial
statements.
Legal Effect. This Agreement constitutes, and
any instrument or agreement Borrower is required to give under this Agreement
when delivered will constitute legal, valid, and binding
obligations of Borrower enforceable against Borrower in accordance with
their respective terms.
Properties. Except as contemplated by this
Agreement or as previously disclosed in Borrower's financial statements or in
writing to Lender and as accepted by Lender, and except for property tax liens
for taxes not presently due and payable. Borrower owns and has good title to all
of Borrower's properties free and clear of all Security Interests, and has not
executed any security documents or financing statements relating to such
properties. All of Borrower's properties are titled in Borrower's legal name, and
Borrower has not used or filed a financing statement under any other name for at
least the last five (5) years.
Hazardous Substances. Except as disclosed to
and acknowledged by Lender in writing. Borrower represents and warrants that:
(1) During the period of Borrower's ownership of the Collateral, there has been
no use, generation, manufacture, storage, treatment, disposal, release or
threatened release of any Hazardous Substance by any person on, under, about or
from any of the Collateral. (2) Borrower has no knowledge of, or reason to
believe that there has been
(a) any breach
or violation of any Environmental Laws; (b) any use, generation,
manufacture, storage, treatment, disposal, release or threatened release of any
Hazardous Substance on, under, about or from the Collateral by any prior owners
or occupants of any of the Collateral; or (c) any actual or threatened
litigation or claims of any kind by any person relating to such matters. (3)
Neither Borrower nor any tenant, contractor, agent or other authorized user of
any of the Collateral shall use, generate, manufacture, store, treat, dispose of
or release any Hazardous Substance on, under, about or from any of the
Collateral; and any such activity shad be conducted in compliance with all
applicable federal, state, and local laws, regulations, and ordinances,
including without limitation all Environmental Laws. Borrower authorizes Lender
and its agents to enter upon the Collateral to make such inspections and tests
as Lender may deem appropriate to determine compliance of the Collateral with
this section of the Agreement. Any inspections or tests made by Lender shall be
at Borrower's expense and for Lender's purposes only and shall not be construed
to create any responsibility or liability on the part of Lender to
Borrower or to any other person. The representations and warranties contained
herein are based on Borrower's due diligence in investigating the Collateral for
hazardous waste and Hazardous Substances. Borrower hereby U) releases and waives
any future claims against Lender for indemnity or contribution in the event
Borrower becomes liable for cleanup or other costs under any such laws, and
(2) agrees to
indemnify, defend, and hold harmless Lender against any and all claims, losses,
liabilities, damages, penalties, and expenses which Lender may directly or
indirectly sustain or suffer resulting from a breach of this section of the
Agreement or as a consequence of any use, generation, manufacture, storage,
disposal, release or threatened release of a hazardous waste or substance on the
Collateral. The provisions of this section of the Agreement, including the
obligation to indemnify and defend, shall survive the payment of the
Indebtedness and the termination, expiration or satisfaction of this Agreement
and shall not be affected by Lender's acquisition of any interest in any of the
Collateral, whether by foreclosure or otherwise.
Litigation and Claims. No litigation, claim,
investigation, administrative proceeding or similar action (including those for
unpaid taxes) against Borrower is pending or threatened, and no other event has
occurred which may materially adversely affect Borrower's financial condition or
properties, other than litigation, claims, or other events, if any, that have
been disclosed to and acknowledged by Lender in writing.
Taxes. To the best of Borrower's knowledge, all
of Borrower's tax returns and reports that are or were required to be filed,
have been filed, and all taxes, assessments and other governmental charges have
been paid in full, except those presently being or to be contested by Borrower
in good faith in the ordinary course of business and for which adequate reserves
have been provided.
Lien Priority. Unless otherwise previously
disclosed to Lender in writing. Borrower has not entered into or granted any
Security Agreements, or permitted the filing or attachment of any Security
Interests on or affecting any of the Collateral directly or indirectly securing
repayment of Borrower's Loan and Note, that would be prior or that may in any
way be superior to Lender's Security Interests and rights in and to such
Collateral.
Binding
Effect. This Agreement, the Note, all Security Agreements (if any), and all
Related Documents are binding upon the signers thereof, as well as upon their
successors, representatives and assigns, and are legally enforceable in
accordance with their respective terms.
AFFIRMATIVE COVENANTS. Borrower
covenants and agrees with Lender that, so long as this Agreement remains in
effect, Borrower will:
Notices of Claims and Litigation. Promptly
inform Lender in writing of (1) all material adverse changes in Borrower's
financial condition, and (2) all existing and all threatened litigation, claims,
investigations, administrative proceedings or similar actions affecting Borrower
or any Guarantor which could materially affect the financial condition of
Borrower or the financial condition of any Guarantor.
Financial
Records. Maintain its books and records in
accordance with GAAP, applied on a consistent basis, and permit Lender to
examine and audit Borrower's books and records at ail reasonable
times.
Financial Statements. Furnish Lender
with the following:
Annual
Statements. As soon as available, but in no event later than
one-hundred-twenty 1120) days after the end of each fiscal year. Borrower's
balance sheet and income statement for the year ended, prepareTax Returns. As soon as
available after the applicable filing date for the tax reporting period ended.
Federal and other governmental
tax returns, prepared by a tax professional satisfactory to
Lender.
All
financial reports required to be provided under this Agreement shall be prepared
in accordance with GAAP, applied on a consistent basis, and certified by
Borrower as being true and correct.
| (Continued) | Page 3 |
Additional
Information. Furnish such
additional information and statements, as Lender may request from time to time.
Financial Covenants and Ratios. Comply with the following covenants
and ratios:
Working
Capital Requirements. Other Working Capital requirements are as follows:
Liquidity requirement for Xxxx X. Xxxxxxxxxx of 1.50x the outstanding loan
amount to be held in cash and/or
marketable securities of which Xedar Corporation cannot exceed at any
time 15 percent of the requirement. Liquidity to be maintained at all times,
however will be monitored annually through bank and/or brokerage account
statements.
Minimum
Income and Cash flow Requirements. Other Cash
Flow requirements are as follows: Cash Flow/ Current Maturity Ratio for Xxxx X.
Xxxxxxxxxx III. Maintain a ratio of Cash Row/ Current Maturity (LTD) in excess
of 1.350 to 1.000. The ratio "Cash Flow/ Current Maturity (LTD)" means personal
cash flow after taxes, divided by CMLTD of personal debt obligations including
the lease and term loan from Bank of the West and will be monitored
annually.
Except
as provided above, all computations made to determine compliance with the
requirements contained in this paragraph Shall be made in accordance with
generally accepted accounting principles, applied on a consistent basis, and
certified by Borrower as being true and correct.
Insurance.
Maintain fire and other risk insurance, public liability insurance,
and such other insurance as Lender may require with respect to Borrower's
properties and operations, in form, amounts, coverages and with insurance
companies acceptable to Lender. Borrower, upon request of Lender, will deliver
to Lender from time to time the policies or certificates of insurance in form
satisfactory to Lender, including stipulations that coverages will not be
cancelled or diminished without at least ten S10) days prior written notice to
Lender. Each insurance policy also shall include an endorsement providing that
coverage in favor of
Lender will not be impaired in any way by any act, omission or default of
Borrower or any other person. In connection with all policies covering assets in
which Lender holds or is offered a security interest for the Loans, Borrower
will provide Lender with such tender's loss payable or other endorsements as
Lender may require.
Insurance
Reports. Furnish to Lender, upon request of Lender, reports on each existing
insurance policy showing such information as Lender may reasonably request,
including without limitation the following: (1) the name of the insurer; (2) the
risks insured; (3) the amount of the policy; (4) the properties insured;
(5) the then
current property values on the basis of which insurance has been obtained, and
the manner of determining those values; and {6} the expiration date of the
policy. In addition, upon request of Lender (however not more often than
annually), Borrower xxxx have an independent appraiser satisfactory to Lender
determine, as applicable, the actual cash value or replacement cost of any
Collateral. The cost of such appraisal shall be paid by
Borrower.
Guaranties.
Prior to disbursement of any Loan proceeds, furnish executed guaranties of the
Loans in favor of Lender, executed by the guarantors named below, on Lender's
forms, and in the amounts and under the conditions set forth in those
guaranties.
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Names of Guarantors
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Amounts
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LANDISCOR,
INC.
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Unlimited
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PIXXURES,
INC.
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Unlimited
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XEDAR
CORPORATION
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Unlimited
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Other Agreements. Comply with all terms and
conditions of all other agreements, whether now or hereafter existing, between
Borrower and any other party and notify Lender immediately in writing of any
default in connection with any other such agreements.
Loan Proceeds. Use all Loan proceeds solely for
Borrower's business operations, unless specifically consented to the contrary by
Lender in writing.
Taxes, Charges and Liens. Pay and discharge
when due all of its indebtedness and obligations, including without limitation
all assessments, taxes, governmental charges, levies and liens, of every kind
and nature, imposed upon Borrower or its properties, income, or profits, prior
to the date on which penalties would attach, and al lawful claims that, if
unpaid, might become a lien or charge upon any of Borrower's properties, income,
or profits. Provided however. Borrower will not be required to pay and discharge
any such assessment, tax, charge, xxxx, xxxx or claim so long as (1) the
legality of the same shall be contested in good faith by appropriate
proceedings, and (2) Borrower shall have established on Borrower's books
adequate reserves with respect to such contested assessment, tax, charge, levy,
lien, or claim in accordance with GAAP.
Performance. Perform and comply, in a timely
manner, with a< terms, conditions, and provisions set forth in this
Agreement, in the Related Documents, and in all other instruments and agreements
between Borrower and
Lender. Borrower shall notify Lender immediately in writing of any
default in connection with any agreement.
Operations.
Maintain executive and management personnel
with substantially the same qualifications and experience as the present
executive and management personnel; provide written notice to Lender of any
change in executive and management personnel; conduct its business affairs in a
reasonable and prudent manner.
Environmental Studies. Promptly conduct and
complete, at Borrower's expense, all such investigations, studies, samplings and
testings as may be requested by Lender or any governmental authority relative to
any substance, or any waste or by-product of any substance defined as toxic or a
hazardous substance under applicable federal, state, or local law, rule,
regulation, order or directive, at or affecting any property or any facility
owned, leased or used by Borrower.
Compliance with Governmental Requirements.
Comply with all laws, ordinances, and regulations, now or hereafter in
effect, of all governmental authorities applicable to the conduct of Borrower's
properties, businesses and operations, and to the use or occupancy of the
Collateral, including without limitation, the Americans With Disabilities Act.
Borrower may contest in good faith any such law, ordinance, or regulation and
withhold compliance during any proceeding, including appropriate appeals, so
long as Borrower has notified Lender in writing prior to doing so and so long
as, in Lender's sole opinion. Lender's interests in the Collateral are not
jeopardized. Lender may require Borrower to post adequate security or a surety
bond, reasonably satisfactory to Lender, to protect Lender's
interest.
Inspection. Permit employees or agents of
Lender at any reasonable time to inspect any and all Collateral for the Loan
or Loans and Borrower's other properties and to examine or audit Borrower's
books, accounts, and records and to make copies and memoranda of Borrower's
books, accounts, and records. If Borrower now or at any time hereafter maintains
any records (including without limitation computer generated records and
computer software programs for the generation of such records) in the possession
of a third party. Borrower, upon request of Lender, shall notify such party to
permit Lender free access to such records at all reasonable times and to provide
Lender with copies of any records it may request, all at Borrower's
expense.
Environmental Compliance and Reports. Borrower
shall comply in all respects with any and all Environmental Laws: not cause or
permit to exist, as a result of an intentional or unintentional action or
omission on Borrower's part or on the part of any third party. On property owned
and/or occupied by Borrower, any environmental activity where damage may result
to the environment, unless such environmental activity is pursuant to and in
compliance with the conditions of a permit issued by the appropriate federal,
state or local governmental
| (Continued) | Page 4 |
authorities;
shall furnish to Lender promptly and in any event within thirty (30) days after
receipt thereof a copy of any notice, summons, lien, citation, directive, letter
or other communication from any governmental agency or instrumentality
concerning any intentional or unintentional action or omission on Borrower's
part in connection with any environmental activity whether or not there is
damage to the environment and/or other natural resources.
Additional Assurances. Make, execute and
deliver to Lender such promissory notes, mortgages, deeds of trust, security
agreements, assignments, financing statements, instruments, documents and other
agreements as Lender or its attorneys may reasonably request to evidence and
secure the Loans and to perfect all Security Interests.
RECOVERY OF ADDITIONAL COSTS. If the imposition
of or any change in any law, rule, regulation or guideline, or the
interpretation or application of any thereof by any court or administrative or
governmental authority (including any request or policy not having the force of
law) shall impose, modify or make applicable any taxes (except federal, state or
local income or franchise taxes imposed on Lender), reserve requirements,
capital adequacy requirements or other obligations which would (A) increase the
cost to Lender for extending or maintaining the credit facilities to which this
Agreement relates, (B! reduce the amounts payable to Lender under this Agreement
or the Related Documents, or (C) reduce the rate of return on Lender's capital
as a consequence of Lender's obligations with respect to the credit facilities
to which this Agreement relates, then Borrower agrees to pay Lender such
additional amounts as will compensate Lender therefor, within five (5) days
after Lender's written demand for such payment, which demand shall be
accompanied by an explanation of such imposition or charge and a calculation in
reasonable detail of the additional amounts payable by Borrower, which
explanation and calculations shall be conclusive in the absence of manifest
error.
LENDER'S EXPENDITURES. If any action or
proceeding is commenced that would materially affect Lender's interest in the
Collateral or if Borrower fails to comply with any provision of this Agreement
or any Related Documents, including but not limited to Borrower's failure to
discharge or pay when due any amounts Borrower is required to discharge or pay
under Was Agreement or any Related Documents, Lender on Borrower's behalf may
(but shall not be obligated to) take any action that Lender deems
appropriate, including but not limited to discharging or paying all taxes,
liens, security interests, encumbrances and other claims, at any time levied or
placed on any Collateral and paying all costs for insuring, maintaining and
preserving any Collateral. All such expenditures incurred or paid by Lender for
such purposes will then bear interest at the rate charged under the Note from
tine date incurred or paid by Lender to the date of repayment by Borrower. AH
such expenses will become a part of the Indebtedness and, at Lender's option,
will (A) be payable on demand; (B) be added to the balance of the Note and be
apportioned among and be payable with any installment payments to become due
during either (1) the term of any applicable insurance policy; or (2) the
remaining term of the Note; or (C) be treated as a balloon payment which will be
due and payable at the Note's maturity.
NEGATIVE COVENANTS. Borrower covenants and
agrees with Lender that while this Agreement is in effect, Borrower shall not,
without the prior written consent of Lender:
Indebtedness and Liens. (1) Except for trade
debt incurred in the normal course of business and indebtedness to Lender
contemplated by this Agreement, create, incur or assume indebtedness for
borrowed money, including capital leases, (2) sell, transfer, mortgage, assign,
pledge, lease, grant a security interest in, or encumber any of Borrower's
assets (except as allowed as Permitted Liens), or (3) sell with recourse any of
Borrower's accounts, except to Lender.
Continuity of Operations. (1) Engage in any
business activities substantially different than those in which Borrower is
presently engaged, (2) cease operations, liquidate, merge, transfer, acquire or
consolidate with any other entity, change its name, dissolve or transfer or sell
Collateral out of the ordinary course of business, or (3) make any distribution
with respect to any capital account, whether by reduction of capital or
otherwise.
Loans, Acquisitions and Guaranties. (1) Loan,
invest in or advance money or assets to any other person, enterprise or entity,
(2) purchase, create or acquire any interest in any other enterprise or entity,
or (3) incur any obligation as surety or guarantor other than in the ordinary
course of business.
Agreements. Borrower will not enter into any
agreement containing any provisions which would be violated or breached by the
performance of Borrower's obligations under this Agreement or in connection
herewith.
CESSATION OF ADVANCES. If Lender has made any
commitment to make any Loan to Borrower, whether under this Agreement or under
any other agreement. Lender shall have no obligation to make Loan Advances or to
disburse Loan proceeds if: (A) Borrower or any Guarantor is in default under the
terms of this Agreement or any of the Related Documents or any other agreement
that Borrower or any Guarantor has with Lender; (B) Borrower or any Guarantor
dies, becomes incompetent or becomes insolvent, files a petition in bankruptcy
or similar proceedings, or is adjudged a bankrupt; (C) there occurs a material
adverse change in Borrower's financial condition, in the financial condition of
any Guarantor, or in the value of any Collateral securing any Loan; or (D) any
Guarantor seeks, claims or otherwise attempts to limit, modify or revoke such
Guarantor's guaranty of the Loan or any other loan with Lender; or !E) Lender in
good xxxxx xxxxx itself insecure, even though no Event of Default shall have
occurred.
RIGHT OF SETOFF. To the extent permitted by
applicable law. Lender reserves a right of setoff in ail 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,
and, at Lender's option, to administratively freeze all such accounts to allow
Lender to protect Lender's charge and setoff rights provided in this
paragraph.
DEFAULT. Default will occur if
payment in full is not made
immediately when due.
EFFECT OF AN EVENT OF DEFAULT. If any Event of
Default shaft occur, except where otherwise provoked in this Agreement or the
Related Documents, all commitments and obligations of Lender under this
Agreement or the Related Documents or any other agreement immediately will
terminate (including any obligation to make further Loan Advances or
disbursements), and, at Lender's option, all Indebtedness immediately will
become due and payable, all without notice of any kind to Borrower, except that
in the case of an Event
of Default of the type described in the "Insolvency" subsection above, such
acceleration shaft be automatic and not optional. In addition, Lender shall have
all the rights and remedies provided in the Related Documents or available at
law, in equity, or otherwise. Except as may be prohibited by applicable law, all
of Lender's rights and remedies shall be cumulative and may be exercised
singularly or concurrently. Election by Lender to pursue any remedy shall not
exclude pursuit of any other remedy, and an election to make expenditures or to
take action to perform an obligation of Borrower or of any Grantor shall not
affect Lender's right to declare a default and to exercise its rights and
remedies.
MISCELLANEOUS
PROVISIONS. The following
miscellaneous provisions are a part of this Agreement:
Amendments. This Agreement, together with any
Related Documents, constitutes the entire understanding and agreement of the
parties as to the matters set forth In this Agreement. No alteration of or
amendment to this Agreement shall be effective unless given in writing and
signed by the party or parties sought to be charged or bound by the alteration
or amendment.
Attorneys'
Fees; Expenses. Borrower agrees to pay upon demand al of Lender's
reasonable costs and expenses, including
Lender's.
| (Continued) | Page 5 |
attorneys'
fees and Lender's legal expenses, incurred in connection with the enforcement of
this Agreement. Lender may hire or pay someone else to help enforce this
Agreement, and Borrower shall pay the reasonable costs and expenses of such
enforcement. Costs and expenses include Lender's attorneys' fees and legal
expenses whether or not there is a lawsuit, including attorneys' fees and legal
expenses for bankruptcy proceedings (including efforts to modify or vacate any
automatic stay or injunction), appeals, and any anticipated post-judgment
collection services. Borrower also shall pay all court costs and such additional
fees as may be directed by the court.
Caption Headings. Caption headings in this
Agreement are for convenience purposes only and are not to be used to interpret
or define the provisions of this Agreement.
Consent to Loan Participation. Borrower agrees
and consents to Lender's sale or transfer, whether now or later, of one or more
participation interests in the Loan to one or more purchasers, whether related
or unrelated to Lender. Lender may provide, without any limitation whatsoever,
to any one or more purchasers, or potential purchasers, any information or
knowledge Lender may have about Borrower or about any other matter relating to
the Loan, and Borrower hereby waives any rights to privacy Borrower may have
with respect to such matters. Borrower additionally waives any and all notices
of sale of participation interests, as well as all notices of any repurchase of
such participation interests. Borrower also agrees that the purchasers of any
such participation interests will be considered as the absolute owners of such
interests in the Loan and will have as the rights granted under the
participation agreement or agreements governing the sale of such participation
interests. Borrower further waives all rights of offset or counterclaim that it
may have now or later against Lender or against any purchaser of such a
participation interest and unconditionally agrees that either Lender or such
purchaser may enforce Borrower's obligation under the Loan irrespective of the
failure or insolvency of any holder of any interest in the Loan. Borrower
further agrees that the purchaser of any such participation interests may
enforce its interests irrespective of any personal claims Or defenses that
Borrower may have against Lender.
Choice
of Venue. If there is a lawsuit. Borrower
agrees upon Lender's request to submit to the jurisdiction of the courts of
Jefferson County, State of Colorado.
Joint and Several Liability. All obligations of
Borrower under this Agreement shall be joint and several, and all references to
Borrower shall mean each and every Borrower. This means that each Borrower
signing below is responsible for all obligations in this Agreement. Where any
one or more of the parties is a corporation, partnership, limited liability
company or similar entity, it is not necessary for Lender to inquire into the
powers of any of the officers, directors, partners, members. Of other agents
acting or purporting to act on the entity's behalf, and any obligations made or
created in reliance upon the professed exercise of such powers shall be
guaranteed under this Agreement.
No Waiver by Lender. Lender shall not be deemed
to have waived any rights under this Agreement unless such waiver is given in
writing and signed by Lender. No delay or omission on the part of Lender in
exercising any right shall operate as a waiver of such right or any other right.
A waiver by Lender of a provision of this Agreement shall not prejudice or
constitute a waiver of Lender's right otherwise to demand strict compliance with
that provision or any other provision of this Agreement. No prior waiver by
Lender, nor any course of dealing between Lender and Borrower, or between Lender
and any Grantor, shall constitute a waiver of any of Lender's rights or of any
of Borrower's or any Grantor's obligations as to any future transactions.
Whenever the consent of Lender is required under this Agreement, the granting of
such consent by Lender in any instance shall not constitute continuing consent
to subsequent instances where such consent is required and in all cases such
consent may be granted or withheld in the sole discretion of
Lender.
Notices. Any notice required to be given under
this Agreement shall be given in writing, and shall be effective when actually
delivered, when actually received by telefacsimile (unless otherwise required by
law), when deposited with a nationally recognized overnight courier, or, if
mailed, when deposited in the United States mail, as first class, certified or
registered mail postage prepaid, directed to the addresses shown near the
beginning of this Agreement. Any party may change its address for notices under
this Agreement by giving formal written notice to the other parties, specifying
that the purpose of the notice is to change the party's address. For notice
purposes, Borrower agrees to keep Lender informed at all times of Borrower's
current address. Unless otherwise provided or required by law, if there is more
than one Borrower, any notice given by Lender to any Borrower is deemed to be
notice given to all Borrowers.
Severability. If a court of competent
jurisdiction finds any provision of this Agreement to be illegal, invalid, or
unenforceable as to any person or circumstance, that finding shall not make the
offending provision illegal, invalid, or unenforceable as to any other person or
circumstance. If feasible, the offending provision shall be considered modified
so that it becomes legal, valid and enforceable. If the offending provision
cannot be so modified, it shall be considered deleted from this Agreement.
Unless otherwise required by law, the illegality, invalidity, or
unenforceability of any provision of this Agreement shall not affect the
legality, validity or enforceability of any other provision of this
Agreement.
Successors and Assigns. All covenants and
agreements by or on behalf of Borrower contained in this Agreement or any
Related Documents shall bind Borrower's successors and assigns and shall inure
to the benefit of Lender and its successors and assigns. Borrower shall not,
however, have the right to assign Borrower's rights under this Agreement or any
interest therein, without the prior written consent of
Lender.
Survival of Representations and Warranties.
Borrower understands and agrees that in extending Loan Advances, Lender is
relying on all representations, warranties, and covenants made by Borrower in this Agreement
or in any certificate or other instrument delivered by Borrower to Lender under
this Agreement or the Related Documents. Borrower further agrees that regardless
of any investigation made by Lender, all such representations, warranties and
covenants wit! survive the extension of Loan Advances and delivery to Lender of
the Related Documents, shall be continuing in nature, shaft be deemed made and
redated by Borrower at the time each Loan Advance is made, and shall remain in
full force and effect until such time as Borrower's Indebtedness
shall be paid in full, or until this Agreement shall be terminated in the manner
provided above, whichever is the last to occur.
Time is of the Essence. Time is of the essence
in the performance of this Agreement.
Waive
Jury. All parties to this Agreement hereby waive the right to any jury trial in
any action, proceeding, or counterclaim brought by any party against any other
party.
DEFINITIONS. The following capitalized words
and terms shall have the following meanings when used in this Agreement. Unless
specifically stated to the contrary, all references to dollar amounts shall mean
amounts in lawful money of the United States of America. Words and terms used in
the singular shall include the plural, and the plural shall include the
singular, as the context may require. Words and terms not otherwise defined in
this Agreement shall have the meanings attributed to such terms in the Uniform
Commercial Code. Accounting words and terms not otherwise defined in this
Agreement shall have the meanings assigned to them in accordance with generally
accepted accounting principles as in effect on the date of this
Agreement:
| (Continued) | Page 6 |
Advance. The word "Advance" means a
disbursement of Loan funds made, or to be made, to Borrower or on Borrower's
behalf on a line of credit or multiple advance basis under the terms and
conditions of this Agreement.
Agreement.
The word
"Agreement" means this Business Loan Agreement, as this Business Loan Agreement
may be amended or modified from time to time, together with all exhibits and
schedules attached to this Business Loan Agreement from time to
time.
Borrower. The word "Borrower" means LANDPIXX,
LLC; and XXXX X. XXXXXXXXXX III and includes all co-signers and co-makers
signing the Note and all their successors and assigns.
Collateral. The word "Collateral" means all
property and assets granted as collateral security for a Loan, whether real or
personal property, whether granted directly or indirectly, whether granted now
or in the future, and whether granted in the form of a security interest,
mortgage, collateral mortgage, deed of trust, assignment, pledge, crop pledge,
Chanel mortgage, collateral chattel mortgage, chattel trust, factor's lien,
equipment trust, conditional sale, trust receipt, lien, charge, lien or title
retention contract, lease or consignment intended as a security device, or any
other security or lien interest whatsoever, whether created by law, contract, or
otherwise.
Default. The
word "Default" means the Default set forth in this Agreement in the section
titled "Default".
Environmental Laws. The words "Environmental
Laws" mean any and all state, federal and local statutes, regulations and
ordinances relating to the protection of human health or the environment,
including without limitation the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et
seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub.
L. No. 99-499 ("XXXX"), the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
Section 69Q1, et seq., Of other applicable state or federal laws, rules, or
regulations adopted pursuant thereto.
Event
of Default. The words "Event of
Default" mean any of the events of default set forth in this Agreement in the
default section Of this agreement.
GAAP. The word "GAAP" means
generally accepted accounting principles.
Grantor.
The word "Grantor" means each and all of the
persons or entities granting a Security Interest in any Collateral for the Loan,
including without limitation all Borrowers granting such a Security
Interest.
Guarantor. The word
"Guarantor" means any guarantor, surety, or accommodation party of any or all of
the Loan.
Hazardous Substances. The words "Hazardous
Substances" mean materials that, because of their quantity, concentration or
physical, chemical or infectious characteristics, may cause or pose a present or
potential hazard to human health or the environment when improperly used,
treated, stored, disposed of, generated, manufactured, transported or otherwise
handled. The words "Hazardous Substances" are used in their very broadest sense
and include without limitation any and all hazardous or toxic substances,
materials or waste as defined by or listed under the Environment Laws. The term "Hazardous Substances* also
includes, without limitation, petroleum and petroleum by-products or any
fraction thereof and asbestos.
Indebtedness. The word "Indebtedness" means the
indebtedness evidenced by the Note or Related Documents, including all principal
and interest together with all other indebtedness and costs and expenses for
which Borrower is responsible under this Agreement or under any of the Related
Documents.
Lender. The word "Lender" means BANK
OF THE WEST, its successors and assigns.
Loan. The word "Loan" means any and all loans
and financial accommodations from Lender to Borrower whether now or hereafter
existing, and however evidenced, including without limitation those loans and
financial accommodations described herein or described on any exhibit or
schedule attached to this Agreement from time to time.
Note. The word "Note" means and includes
without limitation all of the Borrower's promissory notes and/or credit
agreements, whether now or hereafter existing, evidencing Borrower's loan
obligations in favor of Lender, together with all renewals of, extensions of,
modifications of, refinancings of, consolidations of, and substitutions for
promissory notes and/or credit agreements.
Permitted Liens. The words "Permitted Liens"
mean (1) liens and security interests securing Indebtedness owed by Borrower to
Lender; (2) liens for taxes, assessments, or similar charges either not yet due
or being contested in good faith; (3) liens of materialmen, mechanics,
warehousemen, or carriers, or other like liens arising in the ordinary course of
business and securing obligations which are not yet delinquent; (4) purchase
money liens or purchase money security interests upon or in any property
acquired or held by Borrower in the ordinary course of business to secure
indebtedness outstanding on the date of this Agreement or permitted to be
incurred under the paragraph of this Agreement titled "Indebtedness and Liens";
(5) liens and security interests which, as of the date of this Agreement, have
been disclosed to and approved by the Lender in writing; and (6) those Bens and
security interests which in the aggregate constitute an immaterial and
insignificant monetary amount with respect to the net value of Borrower's
assets.
Related Documents. The words "Related
Documents" mean all promissory notes, credit agreements, loan agreements,
environmental agreements, guaranties, security agreements, mortgages, deeds of
trust, security deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in
connection with the Loan.
Security
Agreement. The words "Security Agreement" mean
and include without limitation any agreements, promises, covenants,
arrangements, understandings or other agreements, whether created by law,
contract, or otherwise, evidencing, governing, representing, or creating a
Security Interest.
Security Interest. The words "Security
Interest" mean, without limitation, any and all types of collateral security,
present and future, whether in the form of a lien, charge, encumbrance,
mortgage, deed of trust, security deed, assignment, pledge, crop pledge, chattel
mortgage, collateral chattel mortgage, chattel trust, factor's lien, equipment
trust, conditional sale, trust receipt, lien or title retention contract, lease
or consignment intended as a security device, or any other security or Ben
interest whatsoever whether created by law, contract, or
otherwise.
BUSINESS
LOAN AGREEMENT
| (Continued) | Page 7 |
BORROWER
ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSMESS LOAN AGREEMENT AND
BORROWER AGREES TO ITS TERMS. THIS BUSINESS LOAN AGREEMENT IS DATED
FEBRUARY 25, 2008.
BORROWER:
LANDPIXX,
LLC
By:
/s/ XXXXXXX
XXXXXXXX
XXXXXXX
XXXXXXXX, MANAGER of LANDPIXX. LLC
By: /s/ XXXX
XXXXXX
XXXX XXXXXX, MANAGER
of LANDPIXX, LLC
PIXXURES,
INC., MEMBER of LANDPIXX, LLC
By: /s/ XXXXXXX
XXXXXXXX
XXXXXXX
XXXXXXXX, PRESIDENT/CEO of PIXXURES, INC.
LANDISCOR,
INC., MEMBER of LANDPIXX, LLC
By: /s/ XXXX
XXXXXX
XXXX
XXXXXX, PRESIDENT/CEO of LANDISCOR, INC.
/s/
XXXX X. XXXXXXXXXX III
XXXX
X. XXXXXXXXXX III, Individually LENDER:
BANK
OF THE WEST
By:
/s/ Xxxxxx Xxxx
Xxxxxx
Xxxx, Relationship Manager
