EXHIBIT 10.2
BUSINESS LOAN AGREEMENT
Borrower: Xxxxx'x Liquid Gold-Inc.
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Lender: Citywide Banks
XX Xxx 000
Xxxxxx, XX 00000-0000
(000) 000-0000
THIS BUSINESS LOAN AGREEMENT dated June 28, 2006, is made and executed
between Xxxxx'x Liquid Gold-Inc. ("Borrower") and Citywide Banks
"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 ("Loan"). 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 June 28, 2006, and
shall 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 June 28, 2021.
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) 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.
Borrower's Authorization. Borrower shall have provided in form and
substance satisfactory to Lender properly certified resolutions,
duly authorizing the execution and delivery of this Agreement, the
Note and the Related Documents, In addition, Borrower shall have
provided such other resolutions, authorizations, documents and
instruments as Lender or its counsel, may require.
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.
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. Borrower is a corporation for profit which is, and at
all times shall be, duly organized, validly existing, and in good
standing under and by virtue of the laws of the State of Colorado.
Borrower is duly authorized to transact business in all other states
in which Borrower is doing business, having obtained all necessary
filings, governmental licenses and approvals for each state in which
Borrower is doing business. Specifically, Borrower is, and at all
times shall be, duly qualified as a foreign corporation in all states
in which the failure to so qualify would have a material adverse
effect on its business or financial condition. Borrower 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. Borrower maintains an office at 0000 Xxxxxx Xxxxxx, Xxxxxx,
XX 00000. Unless Borrower has designated otherwise in writing,
the principal office is the office at which Borrower keeps its books
and records including its records concerning the Collateral. Borrower
will notify Lender prior to any change in the location of Borrower's
state of organization or any change in Borrower's name. Borrower shall
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
Borrower and Borrower'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 have been duly authorized
by all necessary action by Borrower and do not conflict with, result
in a violation of, or constitute a default under (1) any provision of
(a) Borrower's articles of incorporation or organization, or bylaws,
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 Borrower's
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 shall 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 (1) 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 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, 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 all reasonable
times.
Financial Statements. Furnish Lender with the following:
Annual Statements. As soon as available, but in no event later
than ninety (90) days after the end of each fiscal year,
Borrower's balance sheet and income statement for the year
ended, audited by a certified public accountant satisfactory
to Lender.
Interim Statements. As soon as available, but in no event later
than 45 days after the end of each month, Borrower's balance
sheet and profit and loss statement for the period ended, prepared
by Borrower.
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.
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. Borrower shall comply with the
following working capital ratio requirements:
Current Ratio. Maintain a Current Ratio in excess of 1.000 to
1.000. The term "Current Ratio" means Borrower's total Current
Assets divided by Borrower's total Current Liabilities. This
liquidity ratio should be maintained at all times and may be
evaluated at any time.
Tangible Net Worth Requirements. Other Net Worth requirements
are as follows: Long term debt/consolidated net worth (in
accordance with Generally Accepted Accounting Principles (GAAP)
of not more than 1:1.
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 (10)
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 Lender'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 will
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.
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 all lawful claims that, if unpaid, might become a
lien or charge upon any of Borrower's properties, income, or
profits.
Performance. Perform and comply, in a timely manner, with all
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.
Compliance Certificates. Unless waived in writing by Lender,
provide Lender at least annually, with a certificate executed
by Borrower's chief financial officer. or other officer or person
acceptable to Lender, certifying that the representations and
warranties set forth in this Agreement are true and correct as
of the date of the certificate and further certifying that, as
of the date of the certificate, no Event of Default exists under
this Agreement.
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 authorities;
shall furnish to Lender promptly and in any event within thirty
(30) days otter 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.
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 this 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 the date incurred or paid by Lender to the date of
repayment by Borrower. All 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.
Additional Financial Restrictions. Borrower shall advise Bank
immediately of any adverse change in the business, property or
operating conditions, including litigation or threat of litigation.
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) pay any dividends on Borrower's stock (other than dividends
payable in its stock), provided, however that notwithstanding the
foregoing, but only so long as no Event of Default has occurred
and is continuing or would result from the payment of dividends,
it Borrower is a "Subchapter S Corporation" (as defined in the
Internal Revenue Code of 1986, as amended), Borrower may pay cash
dividends on its stock to its shareholders from time to time in
amounts necessary to enable the shareholders to pay income taxes
and make estimated income tax payments to satisfy their
liabilities under federal and state law which arise solely from
their status as Shareholders of a Subchapter S Corporation
because of their ownership of shares of Borrower's stock, or
purchase or retire any of Borrower's outstanding shares or
alter or amend Borrower's capital structure.
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 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.
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 Loan.
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 or any Grantor
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 or any Grantor's property or Borrower's or any
Grantor's ability to repay the Loans or perform their respective
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
appointment of a receiver for any part of Borrower's property,
any assignment for the benefit of creditors, any type of
creditor workout, or the commencement of any proceeding under
any bankruptcy or insolvency laws by or against Borrower.
Defective Collateralization. This Agreement or any of the
Related Documents ceases to be in full force and effect
(including failure of any collateral document to create a
valid and perfected security interest or lien) at any time
and for any reason.
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 Loan. 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 of any of the Indebtedness or any
Guarantor dies or becomes incompetent, or revokes or disputes
the validity of, or liability under, any Guaranty of the
Indebtedness.
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 Loan is impaired.
Insecurity. Lender in good faith believes itself insecure.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall
occur, except where otherwise provided 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 shall
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.
MISCELLANBOUS 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
all of Lender's reasonable costs and expenses, including Lender's
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 all 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.
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.
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 circumstance, that finding shall not
make the offending provision illegal, invalid, or unenforceable
as to any other 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.
Subsidiaries and Affiliates of Borrower. To the extent the
context of any provisions of this Agreement makes it appropriate,
including without limitation any representation, warranty or
covenant, the word "Borrower" as used in this Agreement shall
include all of Borrower's subsidiaries and affiliates.
Notwithstanding the foregoing however, under no circumstances
shall this Agreement be construed to require Lender to make any
Loan or other financial accommodation to any of Borrower's
subsidiaries or affiliates.
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 will survive the extension of Loan Advances and
delivery to Lender of the Related Documents, shall be continuing
in nature, shall 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 Borrowers 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:
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 Xxxxx'x Liquid
Gold-Inc. and includes all co-signers and co-makers signing
the Note.
Borrower. The word "Borrower" means Xxxxx'x Liquid Gold-Inc.
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, chattel 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.
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 6901, et seq., or 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.
Guaranty. The word "Guaranty" means the guaranty from Guarantor
to Lender, including without limitation a guaranty of all or part
of the Note.
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 Environmental 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 Citywide Banks, 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 the Note executed by Xxxxx'x Liquid
Gold-Inc. in the principal amount of $5,156,641.00 dated June 28,
2006, together with all renewals of, extensions of, modifications
of, refinancing of, consolidations of, and substitutions for the
note or credit agreement.
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 liens 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 lien
interest whatsoever whether created by law, contract, or otherwise.
BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS
BUSINESS LOAN AGREEMENT AND BORROWER AGREES TO ITS TERMS, THIS
BUSINESS LOAN AGREEMENT IS DATED JUNE 28, 2006.
BORROWER:
XXXXX'X LIQUID GOLD-INC.
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxxx, CEO and President
of Xxxxx'x Liquid Gold-Inc.
LENDER:
CITYWIDE BANKS
By: /s/Xxxxxxx X. XxXxxxx
------------------------------------
Authorized Signer
