BUSINESS LOAN AGREEMENT
| Principal | Loan Date | Maturity | Loan No | Call / Coll | Account | Officer | Initials | |||||||
| $2,000,000.00 | 08-28-2009 | 08-28-2010 | XXXXXX | 150/40 | XXXXXX | RDH |
References in the boxes above are for Xxxxxx’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.
Borrower:
|
Xxxxxx Management, LLLP 000 Xxxxx Xxxx., #000 Xxxxxxxx, XX 00000-1557 |
Lender: | Citywide Banks PO Box 128 Aurora, CO 80040-0128 (000) 000-0000 |
THIS BUSINESS LOAN AGREEMENT dated August 28, 2009, is made and executed between Xxxxxx Management,
LLLP (“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. 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 Xxxxxx’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 August 28, 2009, 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 August 28, 2010.
ADVANCE AUTHORITY. The following person or persons are authorized to request advances and authorize
payments under the line of credit until Xxxxxx receives from Borrower, at Xxxxxx’s address shown
above, written notice of revocation of such authority: Xxxx X. Xxxxxx, President of Xxxxxx
Investment Management, Inc., General Partner of Xxxxxx Management, LLLP.
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 Xxxxxx’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 partnership 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 partnership 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. Xxxxxxxx maintains an office at 000 Xxxxx Xxxx., #000, Xxxxxxxx, XX
00000-0000. 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 Xxxxxxxx’s principal office
address 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 ail assumed business names used by Xxxxxxxx. Excluding the name of Xxxxxxxx, 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 or agreements of partnership, 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 Xxxxxxxx’s financial statements supplied to Xxxxxx truly and
completely disclosed Xxxxxxxx’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 Xxxxxxxx’s
financial statements or in writing to Lender and as accepted by Xxxxxx, 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 Xxxxxxxx’s properties are
titled in Borrower’s legal name, and Xxxxxxxx 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 Xxxxxx 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 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, 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
BUSINESS LOAN AGREEMENT
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| Loan No: XXXXXX | Page 2 |
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 Xxxxxx in writing.
Taxes. To the best of Xxxxxxxx’s knowledge, all of Xxxxxxxx’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, Xxxxxxxx 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 Xxxxxx that, so long as this Agreement
remains in effect, Borrower will:
Notices of Claims and Litigation. Promptly inform Xxxxxx 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 Xxxxxx to examine and audit Xxxxxxxx’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 sixty (60) days after the end
of each fiscal year, Xxxxxxxx’s balance sheet and income statement for the year ended, prepared by
Xxxxxxxx.
Tax Returns. As soon as available, but in no event later than sixty (60) days after the applicable
filing date for the tax reporting period ended, Federal and other governmental tax returns,
prepared by Xxxxxxxx.
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 Xxxxxx may request
from time to time.
Insurance. Maintain fire and other risk insurance, public liability insurance, and such other
insurance as tender 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
Xxxxxx, 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.
Guaranties. Prior to disbursement of any Loan proceeds, furnish executed guaranties of the Loans in
favor of Xxxxxx, executed by the guarantor named below, on Xxxxxx’s forms, and in the amount and
under the conditions set forth in those guaranties.
| Name of Guarantor | Amount | |||
Xxxx X. Xxxxxx |
$ | 2,000,000.00 | ||
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 Xxxxxxxx’s business operations, unless specifically
consented to the contrary by Xxxxxx 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. Provided however,
Xxxxxxxx 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 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 Xxxxxx 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, ail 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 Xxxxxx’s sole opinion, Xxxxxx’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 Xxxxxx’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 Xxxxxxxx’s other properties and to examine or audit Xxxxxxxx’s
books, accounts, and records and to make copies and memoranda of Xxxxxxxx’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 Xxxxxx, 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 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
BUSINESS LOAN AGREEMENT
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| Loan No: XXXXXX | Page 3 |
evidence and secure the Loans and to perfect all Security interests.
XXXXXX’S EXPENDITURES. If any action or proceeding is commenced that would materially affect
Xxxxxx’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 Xxxxxxxx. 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 Xxxxxx.
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 Xxxxxx 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 IRA or Xxxxx accounts, or any trust accounts for
which setoff would be prohibited by law. Xxxxxxxx authorizes Xxxxxx, 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. Xxxxxxxx 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.
Death or Insolvency. The dissolution or termination of Xxxxxxxx’s existence as a going business or
the death of any partner, the insolvency of Xxxxxxxx, the appointment of a receiver for any part of
Xxxxxxxx’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 Xxxxxxxx as to the validity or reasonableness
of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower gives
Xxxxxx 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.
Events Affecting General Partner of Borrower. Any of the preceding events occurs with respect to
any general partner of Borrower or any general partner dies or becomes incompetent.
Change in Ownership. The resignation or expulsion of any general partner with an ownership interest
of twenty-five percent (25%) or more in Borrower,
Adverse
Change. A material adverse change occurs in Borrower’s financial condition, or Xxxxxx
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 Xxxxxx 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 Xxxxxx’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. Xxxxxxxx agrees to pay upon demand all of Xxxxxx’s
reasonable costs and expenses, including Xxxxxx’s attorneys’ fees and Xxxxxx’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 Xxxxxx’s attorneys’ fees and legal
expenses whether or not there is a lawsuit, including attorneys’ fees and legal expenses for
bankruptcy proceeding (including efforts to modify or vacate any
automatic Stay or injunction). appeals, and any anticipated
BUSINESS LOAN AGREEMENT
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| Loan No: XXXXXX | Page 4 |
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. Xxxxxxxx agrees and consents to Xxxxxx’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. Xxxxxxxx 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 Xxxxxxxx’s obligation under
the Loan irrespective of the failure or insolvency of any holder of any interest in the Loan.
Xxxxxxxx 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 Xxxxxx.
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 Xxxxxx in the State of Colorado.
No Waiver by Xxxxxx. Lender shall not be deemed to have waived any rights under this Agreement
unless such waiver is given in writing and signed by Xxxxxx. 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 Xxxxxx 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 Xxxxxx, nor any course of dealing between Xxxxxx 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,
Xxxxxxxx agrees to keep Xxxxxx informed at all times of Xxxxxxxx’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. Xxxxxxxx understands and agrees that in extending Loan
Advances, Xxxxxx 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 Xxxxxx, 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 redacted 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:
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 Xxxxxx Management, LLLP 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 ail 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
BUSINESS LOAN AGREEMENT
(Continued)
(Continued)
| Loan No: XXXXXX | Page 5 |
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 Xxxxxx Management, LLLP in the principal amount of
$2,000,000.00 dated August 28, 2009, together with all renewals of, extensions of, modifications
of, refinancings 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 Xxxxxxxx’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.
XXXXXXXX ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN AGREEMENT AND XXXXXXXX
AGREES TO ITS TERMS. THIS BUSINESS LOAN AGREEMENT IS DATED AUGUST 28, 2009.
BORROWER:
XXXXXX MANAGEMENT, LLLP
| XXXXXX INVESTMENT MANAGEMENT, INC.,
General Partner of Xxxxxx Management, LLLP |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Xxxx X. Xxxxxx, President of Xxxxxx Investment Management, Inc. | ||||
LENDER:
| CITYWIDE BANKS |
||||
| By: | /s/ Xxx Xxxxxx | |||
| Authorized Signer | ||||
