EXHIBIT 10.2
GUARANTEE
This Guarantee ("Guarantee") is made by the undersigned SLG
Plastics, Inc., a Colorado corporation ("Guarantor") to Summit
Financial Resources LP ("Summit"), a Hawaii limited partnership, as an
inducement to Summit to enter into a Financing Agreement (the "Financing
Agreement") with Xxxxx'x Liquid Gold-Inc., a Colorado corporation,
("Client").
For good and valuable consideration, receipt of which is hereby
acknowledged, Guarantor, as a compensated Guarantor, agrees as follows:
1. Definitions. Terms defined in the above recitals shall have
the meanings set forth above. Terms defined in the singular shall have
the same meaning when used in the plural and vice versa. As used herein,
the term:
"Account" shall have the meaning set forth in the Financing
Agreement.
"Agreements" means the Financing Agreement or any agreements
related thereto.
"Collateral" means any and all collateral for the Indebtedness
and/or the Indebtedness, now existing or hereafter created or arising,
including Accounts purchased by Summit.
"Indebtedness" means any and all obligations of Client owing to
Summit arising from or related to the Agreements.
2. Guarantee. Guarantor absolutely and unconditionally
guarantees to Summit that Client shall promptly and fully perform, pay
and discharge the Indebtedness. If Client fails to pay any Indebtedness
promptly as the same becomes due, Guarantor agrees to pay the
Indebtedness on demand.
3. Guarantee Unconditional. This Guarantee is an absolute and
unconditional guarantee of payment and not of collectability. The
liability of Guarantor hereunder is not conditional or contingent upon
the genuineness, validity, sufficiency or enforceability of the
Agreements or any Collateral. Summit shall not be required to
(i) proceed against Client by suit or otherwise, (ii) foreclose,
proceed against, liquidate or exhaust any Collateral, or
(iii) exercise, pursue or enforce any right or remedy Summit may have
against any other guarantor (whether hereunder or under a separate
instrument), any other party, or otherwise, prior to proceeding against
Guarantor.
4. Interest, Collection Costs and Attorneys Fees. If Guarantor
fails to pay any Indebtedness promptly as the same becomes due,
Guarantor agrees to pay all costs and expenses, including reasonable
attorneys fees, incurred by Summit in enforcing or exercising any
remedies under this Guarantee and any other rights and remedies against
Guarantor. Additionally, Guarantor agrees to pay all costs and
expenses, including reasonable attorneys fees and legal expenses,
incurred by Summit in any bankruptcy proceedings of any type involving
Guarantor, including, without limitation, expenses incurred in modifying
or lifting the automatic stay, determining adequate protection, use of
cash collateral, or relating to any plan of reorganization.
5. Waiver by Guarantor. Guarantor expressly and absolutely,
without affecting the liability of Guarantor hereunder:
a. Waives notice of acceptance by Summit of this
Guarantee, the offer of guarantee contemplated by this Guarantee, or
any other notice which may be required relative to the acceptance of this
Guarantee;
b. Waives notice of the failure of Client to make any
payment on the Indebtedness and notice of the failure of any party to pay
to Summit any Account or other indebtedness held by Summit as Collateral;
c. Waives notice of any adverse change in Client's
condition, financial or otherwise, or of any other fact which might
materially increase Guarantor's risk, whether or not Summit has
knowledge of the same;
d. Waives notice of transactions which have occurred
under the Agreements or relating to or affecting this Guarantee;
e. Waives demand, protest, notice of dishonor or
nonpayment or presentment for payment of any note, agreement, or other
evidence of the Indebtedness;
f. Waives notice of any kind in bringing and prosecuting
any action on any note, agreement, or other evidence of the
Indebtedness, diligence in connection with the collection on any note,
agreement, or other evidence of Indebtedness and the handling of any
Collateral existing, or to exist, in connection therewith; and
g. Waives any right to require Summit to exhaust any
Collateral or to first proceed against any other person or property
6. Consent to Summit's Acts. Guarantor hereby authorizes and
consents to Summit at any time and from time to time, without notice or
further consent of Guarantor, doing the following and Guarantor agrees
that the liability of Guarantor shall not be released, diminished,
impaired, reduced, exonerated, or affected by:
a. The taking or accepting, or the failure by Summit to
take or accept any other collateral, guarantee for the Indebtedness
b. The modification, amendment, or extension, of any of
the Agreements, or other evidence of the Indebtedness, to the granting of
any other credit, and to the acceleration of maturity of the Indebtedness
c. Any complete or partial release, waiver, exchange,
substitution, subordination, impairment, loss, compromise, or other
modification of the Collateral or any other guarantee at any time
existing in connection with the Indebtedness;
d. The complete or partial release or substitution of
Client or any other guarantors on the Indebtedness;
e. Any renewal, extension, modification, acceleration,
consolidation, adjustment, indulgence, forbearance, waiver or
compromise of the payment of any part or all of the Indebtedness, or
any liability of any other party or any other guarantor therefore, or
the performance of any covenant contained in any agreement had or to be
had in connection with the Indebtedness, the Agreements, or the
Collateral, either with or without notice to or consent of Guarantor
f. Any neglect, delay, omission, failure, or refusal of
Summit to take or prosecute any action for the collection of the
Indebtedness or any part thereof, or for the enforcement of any
provision of any of the Agreements, or to foreclose or exhaust, or
take or prosecute any action in connection with any Collateral or any
guarantee of the Indebtedness, specifically including, but without
limitation, the failure of Summit to perfect any security interest
in any Collateral;
g. Any increase or decrease in the rate of interest on
any note, agreement, or other evidence of the Indebtedness;
h. Acceptance of any partial payments on the Indebtedness
and the application of such partial payments to part of the
Indebtedness; or
i. Summit's exercising any and all rights and remedies
available to Summit by law, at equity or agreement, even if the exercise
thereof may affect, modify, or eliminate Guarantor's right of subrogation
against Client or any other party.
7. Summit's Remedies. In the event Summit obtains another
guarantee for the Indebtedness or there is more than one Guarantor under
this Guarantee, Guarantor agrees that Summit, in its sole discretion,
may (i) bring suit against Guarantor and/or the guarantors under any
other guarantee, or any of the Guarantors individually, for the
Indebtedness, (ii) compromise or settle with any one or more of
Guarantor and/or the guarantors under any other guarantee for such
consideration as Summit may deem proper, and (iii) release one or more
of Guarantor and/or the guarantors under any other guarantee from
liability. Guarantor further agrees that such action shall not impair
or affect the rights of Summit to collect the entire unpaid Indebtedness
from Guarantor pursuant to this Guarantee.
8. Application of Payments. Without affecting any obligation
created hereby or hereunder, Guarantor grants to Summit full power and
authority, in its discretion and at any time and in such manner and on
such terms as it deems fit, with or without notice to Guarantor, to
apply payments and recoveries on the Indebtedness in such manner and in
such order of priority as Summit deems proper, whether or not such
obligation is due at the time of such application.
9. Term of Guarantee. This Guarantee shall remain in full force
and effect until all Indebtedness has been fully paid. No termination
of this Guarantee by Guarantor shall be effective.
10. Subrogation, Contribution and Indemnification. Guarantor
hereby waives any and all rights of subrogation, contribution or
indemnification against Client or any other guarantor of any nature
whatsoever, now existing or hereafter arising or created.
11. Cumulative Rights. The rights and remedies herein conferred
are cumulative and not exclusive of any other rights or remedies and
shall be in addition to every other right, power and remedy herein
specifically or hereafter existing at law, in equity or by statute
which Summit might otherwise have and may be exercised from time to
time and as often and in such order as may be deemed expedient by
Summit. No delay or omission by Summit in the exercise of any such
right, power or remedy or in the pursuance of any remedy shall impair
any such right, power, or remedy or be construed to be a waiver of
any default or to be an acquiescence therein.
12. Governing Law. This Guarantee shall be governed by, and
construed in accordance with, the laws of the State of Utah.
13. Binding Effect. This Guarantee may be executed and delivered
to Summit prior to the execution and delivery of the Agreements. This
Guarantee shall nonetheless be considered a binding, enforceable
Guarantee upon its execution and delivery to Summit.
14. Revival Clause. If the incurring of any debt by Client or
Guarantor or the payment of any money or transfer of property to Summit
by or on behalf of Client, Guarantor, or any other party, should for
any reason subsequently be determined to be "voidable" or avoidable"
in whole or in part within the meaning of any state or federal law
(collectively "voidable transfers"), including, without limitation,
fraudulent conveyances or preferential transfers under the United
States Bankruptcy Code or any other federal or state law, and Summit
is required to repay or restore any voidable transfers or the amount
or any portion thereof, or upon the advice of Summit's counsel is
advised to do so, then, as to any such amount or property repaid or
restored, including all reasonable costs, expenses, and attorneys
fees of Summit related thereto, the liability of Guarantor shall
automatically be revived, reinstated and restored and shall exist as
though the voidable transfers had never been made.
15. Severability and Interpretation. Any provision of this
Guarantee which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction only, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. All references
in this Guarantee to the singular shall be deemed to include the plural
when the context so requires, and vice versa. References in the
collective or conjunctive shall also include the disjunctive unless the
context otherwise clearly requires a different interpretation.
16. Continuing Guarantee. All agreements, representations,
warranties, and covenants made herein by Guarantor shall survive the
execution and delivery of this Guarantee and shall continue in effect
so long as the Indebtedness, or any portion thereof is outstanding
and unpaid, notwithstanding any termination of the Guarantee. All
agreements, representations, warranties, and covenants made herein
by Guarantor shall survive any bankruptcy proceedings. This Guarantee
shall bind the party making the same, and its successors, assigns,
heirs, executors, and personal representatives. The death, insolvency,
bankruptcy, disability, or lack of corporate power of Client,
Guarantor, or any party at any time which is liable for the payment
of any part or all of any Indebtedness will not affect this Guarantee.
17. Joint and Several Liability. Each Guarantor shall be
jointly and severally liable, with each other and with Client and with
any other guarantors, for all obligations and liabilities arising
under this Guarantee. All of the agreements, obligations,
representations, and warranties contained herein shall apply to each
Guarantor.
18. Jury Waiver, Exclusive Jurisdiction of Utah Courts.
GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM, WHETHER IN CONTRACT OR IN
TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS
GUARANTEE.
Guarantor acknowledges that by execution and delivery of this
Guarantee, Guarantor has transacted business in the State of Utah and
Guarantor hereby voluntarily submits himself or herself, consents to,
and waives any defense, to the jurisdiction of courts located in the
State of Utah as to all matters relating to or arising from this
Guarantee. EXCEPT AS EXPRESSLY AGREED IN WRITING BY SUMMIT, THE STATE
AND FEDERAL COURTS LOCATED IN THE STATE OF UTAH SHALL HAVE SOLE AND
EXCLUSIVE JURISDICTION OF ANY AND ALL CLAIMS, DISPUTES, AND
CONTROVERSIES ARISING UNDER OR RELATING TO THIS GUARANTEE. NO
LAWSUIT, PROCEEDING, OR ANY OTHER ACTION RELATING TO OR ARISING UNDER
THIS GUARANTEE MAY BE COMMENCED OR PROSECUTED IN ANY OTHER FORUM
EXCEPT AS EXPRESSLY AGREED IN WRITING BY SUMMIT.
19. Disclosure of Information. Guarantor hereby consents to
Summit disclosing to any financial institution or investor providing
financing or capital for Summit, any and all information, knowledge,
reports, and records, including, without limitation, financial
statements, concerning Guarantor.
20. Entire Agreement. This Guarantee constitutes the entire
agreement between Summit and Guarantor and may not be altered, amended
or modified except in writing signed by Summit and Guarantor. All prior
and contemporaneous agreements and representations, express or implied,
are merged herein.
Dated: October 31, 2008
GUARANTOR:
SLG Plastics, Inc.
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
GUARANTEE
This Guarantee ("Guarantee") is made by the undersigned Advertising
Promotions Incorporated, a Colorado corporation ("Guarantor") to Summit
Financial Resources LP ("Summit"), a Hawaii limited partnership, as an
inducement to Summit to enter into a Financing Agreement (the "Financing
Agreement") with Xxxxx'x Liquid Gold-Inc., a Colorado corporation,
("Client").
For good and valuable consideration, receipt of which is hereby
acknowledged, Guarantor, as a compensated Guarantor, agrees as follows:
1. Definitions. Terms defined in the above recitals shall have
the meanings set forth above. Terms defined in the singular shall have
the same meaning when used in the plural and vice versa. As used herein,
the term:
"Account" shall have the meaning set forth in the Financing
Agreement.
"Agreements" means the Financing Agreement or any agreements
related thereto.
"Collateral" means any and all collateral for the Indebtedness
and/or the Indebtedness, now existing or hereafter created or arising,
including Accounts purchased by Summit.
"Indebtedness" means any and all obligations of Client owing to
Summit arising from or related to the Agreements.
2. Guarantee. Guarantor absolutely and unconditionally
guarantees to Summit that Client shall promptly and fully perform, pay
and discharge the Indebtedness. If Client fails to pay any Indebtedness
promptly as the same becomes due, Guarantor agrees to pay the
Indebtedness on demand.
3. Guarantee Unconditional. This Guarantee is an absolute and
unconditional guarantee of payment and not of collectability. The
liability of Guarantor hereunder is not conditional or contingent upon
the genuineness, validity, sufficiency or enforceability of the
Agreements or any Collateral. Summit shall not be required to
(i) proceed against Client by suit or otherwise, (ii) foreclose,
proceed against, liquidate or exhaust any Collateral, or
(iii) exercise, pursue or enforce any right or remedy Summit may have
against any other guarantor (whether hereunder or under a separate
instrument), any other party, or otherwise, prior to proceeding against
Guarantor.
4. Interest, Collection Costs and Attorneys Fees. If Guarantor
fails to pay any Indebtedness promptly as the same becomes due,
Guarantor agrees to pay all costs and expenses, including reasonable
attorneys fees, incurred by Summit in enforcing or exercising any
remedies under this Guarantee and any other rights and remedies against
Guarantor. Additionally, Guarantor agrees to pay all costs and
expenses, including reasonable attorneys fees and legal expenses,
incurred by Summit in any bankruptcy proceedings of any type involving
Guarantor, including, without limitation, expenses incurred in modifying
or lifting the automatic stay, determining adequate protection, use of
cash collateral, or relating to any plan of reorganization.
5. Waiver by Guarantor. Guarantor expressly and absolutely,
without affecting the liability of Guarantor hereunder:
a. Waives notice of acceptance by Summit of this
Guarantee, the offer of guarantee contemplated by this Guarantee, or
any other notice which may be required relative to the acceptance of this
Guarantee;
b. Waives notice of the failure of Client to make any
payment on the Indebtedness and notice of the failure of any party to pay
to Summit any Account or other indebtedness held by Summit as Collateral;
c. Waives notice of any adverse change in Client's
condition, financial or otherwise, or of any other fact which might
materially increase Guarantor's risk, whether or not Summit has
knowledge of the same;
d. Waives notice of transactions which have occurred
under the Agreements or relating to or affecting this Guarantee;
e. Waives demand, protest, notice of dishonor or
nonpayment or presentment for payment of any note, agreement, or other
evidence of the Indebtedness;
f. Waives notice of any kind in bringing and prosecuting
any action on any note, agreement, or other evidence of the
Indebtedness, diligence in connection with the collection on any note,
agreement, or other evidence of Indebtedness and the handling of any
Collateral existing, or to exist, in connection therewith; and
g. Waives any right to require Summit to exhaust any
Collateral or to first proceed against any other person or property
6. Consent to Summit's Acts. Guarantor hereby authorizes and
consents to Summit at any time and from time to time, without notice or
further consent of Guarantor, doing the following and Guarantor agrees
that the liability of Guarantor shall not be released, diminished,
impaired, reduced, exonerated, or affected by:
a. The taking or accepting, or the failure by Summit to
take or accept any other collateral, guarantee for the Indebtedness
b. The modification, amendment, or extension, of any of
the Agreements, or other evidence of the Indebtedness, to the granting of
any other credit, and to the acceleration of maturity of the Indebtedness
c. Any complete or partial release, waiver, exchange,
substitution, subordination, impairment, loss, compromise, or other
modification of the Collateral or any other guarantee at any time
existing in connection with the Indebtedness;
d. The complete or partial release or substitution of
Client or any other guarantors on the Indebtedness;
e. Any renewal, extension, modification, acceleration,
consolidation, adjustment, indulgence, forbearance, waiver or
compromise of the payment of any part or all of the Indebtedness, or
any liability of any other party or any other guarantor therefore, or
the performance of any covenant contained in any agreement had or to be
had in connection with the Indebtedness, the Agreements, or the
Collateral, either with or without notice to or consent of Guarantor
f. Any neglect, delay, omission, failure, or refusal of
Summit to take or prosecute any action for the collection of the
Indebtedness or any part thereof, or for the enforcement of any
provision of any of the Agreements, or to foreclose or exhaust, or
take or prosecute any action in connection with any Collateral or any
guarantee of the Indebtedness, specifically including, but without
limitation, the failure of Summit to perfect any security interest
in any Collateral;
g. Any increase or decrease in the rate of interest on
any note, agreement, or other evidence of the Indebtedness;
h. Acceptance of any partial payments on the Indebtedness
and the application of such partial payments to part of the
Indebtedness; or
i. Summit's exercising any and all rights and remedies
available to Summit by law, at equity or agreement, even if the exercise
thereof may affect, modify, or eliminate Guarantor's right of subrogation
against Client or any other party.
7. Summit's Remedies. In the event Summit obtains another
guarantee for the Indebtedness or there is more than one Guarantor under
this Guarantee, Guarantor agrees that Summit, in its sole discretion,
may (i) bring suit against Guarantor and/or the guarantors under any
other guarantee, or any of the Guarantors individually, for the
Indebtedness, (ii) compromise or settle with any one or more of
Guarantor and/or the guarantors under any other guarantee for such
consideration as Summit may deem proper, and (iii) release one or more
of Guarantor and/or the guarantors under any other guarantee from
liability. Guarantor further agrees that such action shall not impair
or affect the rights of Summit to collect the entire unpaid Indebtedness
from Guarantor pursuant to this Guarantee.
8. Application of Payments. Without affecting any obligation
created hereby or hereunder, Guarantor grants to Summit full power and
authority, in its discretion and at any time and in such manner and on
such terms as it deems fit, with or without notice to Guarantor, to
apply payments and recoveries on the Indebtedness in such manner and in
such order of priority as Summit deems proper, whether or not such
obligation is due at the time of such application.
9. Term of Guarantee. This Guarantee shall remain in full force
and effect until all Indebtedness has been fully paid. No termination
of this Guarantee by Guarantor shall be effective.
10. Subrogation, Contribution and Indemnification. Guarantor
hereby waives any and all rights of subrogation, contribution or
indemnification against Client or any other guarantor of any nature
whatsoever, now existing or hereafter arising or created.
11. Cumulative Rights. The rights and remedies herein conferred
are cumulative and not exclusive of any other rights or remedies and
shall be in addition to every other right, power and remedy herein
specifically or hereafter existing at law, in equity or by statute
which Summit might otherwise have and may be exercised from time to
time and as often and in such order as may be deemed expedient by
Summit. No delay or omission by Summit in the exercise of any such
right, power or remedy or in the pursuance of any remedy shall impair
any such right, power, or remedy or be construed to be a waiver of
any default or to be an acquiescence therein.
12. Governing Law. This Guarantee shall be governed by, and
construed in accordance with, the laws of the State of Utah.
13. Binding Effect. This Guarantee may be executed and delivered
to Summit prior to the execution and delivery of the Agreements. This
Guarantee shall nonetheless be considered a binding, enforceable
Guarantee upon its execution and delivery to Summit.
14. Revival Clause. If the incurring of any debt by Client or
Guarantor or the payment of any money or transfer of property to Summit
by or on behalf of Client, Guarantor, or any other party, should for
any reason subsequently be determined to be "voidable" or avoidable"
in whole or in part within the meaning of any state or federal law
(collectively "voidable transfers"), including, without limitation,
fraudulent conveyances or preferential transfers under the United
States Bankruptcy Code or any other federal or state law, and Summit
is required to repay or restore any voidable transfers or the amount
or any portion thereof, or upon the advice of Summit's counsel is
advised to do so, then, as to any such amount or property repaid or
restored, including all reasonable costs, expenses, and attorneys
fees of Summit related thereto, the liability of Guarantor shall
automatically be revived, reinstated and restored and shall exist as
though the voidable transfers had never been made.
15. Severability and Interpretation. Any provision of this
Guarantee which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction only, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. All references
in this Guarantee to the singular shall be deemed to include the plural
when the context so requires, and vice versa. References in the
collective or conjunctive shall also include the disjunctive unless the
context otherwise clearly requires a different interpretation.
16. Continuing Guarantee. All agreements, representations,
warranties, and covenants made herein by Guarantor shall survive the
execution and delivery of this Guarantee and shall continue in effect
so long as the Indebtedness, or any portion thereof is outstanding
and unpaid, notwithstanding any termination of the Guarantee. All
agreements, representations, warranties, and covenants made herein
by Guarantor shall survive any bankruptcy proceedings. This Guarantee
shall bind the party making the same, and its successors, assigns,
heirs, executors, and personal representatives. The death, insolvency,
bankruptcy, disability, or lack of corporate power of Client,
Guarantor, or any party at any time which is liable for the payment
of any part or all of any Indebtedness will not affect this Guarantee.
17. Joint and Several Liability. Each Guarantor shall be
jointly and severally liable, with each other and with Client and with
any other guarantors, for all obligations and liabilities arising
under this Guarantee. All of the agreements, obligations,
representations, and warranties contained herein shall apply to each
Guarantor.
18. Jury Waiver, Exclusive Jurisdiction of Utah Courts.
GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM, WHETHER IN CONTRACT OR IN
TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS
GUARANTEE.
Guarantor acknowledges that by execution and delivery of this
Guarantee, Guarantor has transacted business in the State of Utah and
Guarantor hereby voluntarily submits himself or herself, consents to,
and waives any defense, to the jurisdiction of courts located in the
State of Utah as to all matters relating to or arising from this
Guarantee. EXCEPT AS EXPRESSLY AGREED IN WRITING BY SUMMIT, THE STATE
AND FEDERAL COURTS LOCATED IN THE STATE OF UTAH SHALL HAVE SOLE AND
EXCLUSIVE JURISDICTION OF ANY AND ALL CLAIMS, DISPUTES, AND
CONTROVERSIES ARISING UNDER OR RELATING TO THIS GUARANTEE. NO
LAWSUIT, PROCEEDING, OR ANY OTHER ACTION RELATING TO OR ARISING UNDER
THIS GUARANTEE MAY BE COMMENCED OR PROSECUTED IN ANY OTHER FORUM
EXCEPT AS EXPRESSLY AGREED IN WRITING BY SUMMIT.
19. Disclosure of Information. Guarantor hereby consents to
Summit disclosing to any financial institution or investor providing
financing or capital for Summit, any and all information, knowledge,
reports, and records, including, without limitation, financial
statements, concerning Guarantor.
20. Entire Agreement. This Guarantee constitutes the entire
agreement between Summit and Guarantor and may not be altered, amended
or modified except in writing signed by Summit and Guarantor. All prior
and contemporaneous agreements and representations, express or implied,
are merged herein.
Dated: October 31, 2008
GUARANTOR:
Advertising Promotions Incorporated
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
GUARANTEE
This Guarantee ("Guarantee") is made by the undersigned Colorado
Product Concepts, Inc., a Colorado corporation ("Guarantor") to Summit
Financial Resources LP ("Summit"), a Hawaii limited partnership, as an
inducement to Summit to enter into a Financing Agreement (the "Financing
Agreement") with Xxxxx'x Liquid Gold-Inc., a Colorado corporation,
("Client").
For good and valuable consideration, receipt of which is hereby
acknowledged, Guarantor, as a compensated Guarantor, agrees as follows:
1. Definitions. Terms defined in the above recitals shall have
the meanings set forth above. Terms defined in the singular shall have
the same meaning when used in the plural and vice versa. As used herein,
the term:
"Account" shall have the meaning set forth in the Financing
Agreement.
"Agreements" means the Financing Agreement or any agreements
related thereto.
"Collateral" means any and all collateral for the Indebtedness
and/or the Indebtedness, now existing or hereafter created or arising,
including Accounts purchased by Summit.
"Indebtedness" means any and all obligations of Client owing to
Summit arising from or related to the Agreements.
2. Guarantee. Guarantor absolutely and unconditionally
guarantees to Summit that Client shall promptly and fully perform, pay
and discharge the Indebtedness. If Client fails to pay any Indebtedness
promptly as the same becomes due, Guarantor agrees to pay the
Indebtedness on demand.
3. Guarantee Unconditional. This Guarantee is an absolute and
unconditional guarantee of payment and not of collectability. The
liability of Guarantor hereunder is not conditional or contingent upon
the genuineness, validity, sufficiency or enforceability of the
Agreements or any Collateral. Summit shall not be required to
(i) proceed against Client by suit or otherwise, (ii) foreclose,
proceed against, liquidate or exhaust any Collateral, or
(iii) exercise, pursue or enforce any right or remedy Summit may have
against any other guarantor (whether hereunder or under a separate
instrument), any other party, or otherwise, prior to proceeding against
Guarantor.
4. Interest, Collection Costs and Attorneys Fees. If Guarantor
fails to pay any Indebtedness promptly as the same becomes due,
Guarantor agrees to pay all costs and expenses, including reasonable
attorneys fees, incurred by Summit in enforcing or exercising any
remedies under this Guarantee and any other rights and remedies against
Guarantor. Additionally, Guarantor agrees to pay all costs and
expenses, including reasonable attorneys fees and legal expenses,
incurred by Summit in any bankruptcy proceedings of any type involving
Guarantor, including, without limitation, expenses incurred in modifying
or lifting the automatic stay, determining adequate protection, use of
cash collateral, or relating to any plan of reorganization.
5. Waiver by Guarantor. Guarantor expressly and absolutely,
without affecting the liability of Guarantor hereunder:
a. Waives notice of acceptance by Summit of this
Guarantee, the offer of guarantee contemplated by this Guarantee, or
any other notice which may be required relative to the acceptance of this
Guarantee;
b. Waives notice of the failure of Client to make any
payment on the Indebtedness and notice of the failure of any party to pay
to Summit any Account or other indebtedness held by Summit as Collateral;
c. Waives notice of any adverse change in Client's
condition, financial or otherwise, or of any other fact which might
materially increase Guarantor's risk, whether or not Summit has
knowledge of the same;
d. Waives notice of transactions which have occurred
under the Agreements or relating to or affecting this Guarantee;
e. Waives demand, protest, notice of dishonor or
nonpayment or presentment for payment of any note, agreement, or other
evidence of the Indebtedness;
f. Waives notice of any kind in bringing and prosecuting
any action on any note, agreement, or other evidence of the
Indebtedness, diligence in connection with the collection on any note,
agreement, or other evidence of Indebtedness and the handling of any
Collateral existing, or to exist, in connection therewith; and
g. Waives any right to require Summit to exhaust any
Collateral or to first proceed against any other person or property
6. Consent to Summit's Acts. Guarantor hereby authorizes and
consents to Summit at any time and from time to time, without notice or
further consent of Guarantor, doing the following and Guarantor agrees
that the liability of Guarantor shall not be released, diminished,
impaired, reduced, exonerated, or affected by:
a. The taking or accepting, or the failure by Summit to
take or accept any other collateral, guarantee for the Indebtedness
b. The modification, amendment, or extension, of any of
the Agreements, or other evidence of the Indebtedness, to the granting of
any other credit, and to the acceleration of maturity of the Indebtedness
c. Any complete or partial release, waiver, exchange,
substitution, subordination, impairment, loss, compromise, or other
modification of the Collateral or any other guarantee at any time
existing in connection with the Indebtedness;
d. The complete or partial release or substitution of
Client or any other guarantors on the Indebtedness;
e. Any renewal, extension, modification, acceleration,
consolidation, adjustment, indulgence, forbearance, waiver or
compromise of the payment of any part or all of the Indebtedness, or
any liability of any other party or any other guarantor therefore, or
the performance of any covenant contained in any agreement had or to be
had in connection with the Indebtedness, the Agreements, or the
Collateral, either with or without notice to or consent of Guarantor
f. Any neglect, delay, omission, failure, or refusal of
Summit to take or prosecute any action for the collection of the
Indebtedness or any part thereof, or for the enforcement of any
provision of any of the Agreements, or to foreclose or exhaust, or
take or prosecute any action in connection with any Collateral or any
guarantee of the Indebtedness, specifically including, but without
limitation, the failure of Summit to perfect any security interest
in any Collateral;
g. Any increase or decrease in the rate of interest on
any note, agreement, or other evidence of the Indebtedness;
h. Acceptance of any partial payments on the Indebtedness
and the application of such partial payments to part of the
Indebtedness; or
i. Summit's exercising any and all rights and remedies
available to Summit by law, at equity or agreement, even if the exercise
thereof may affect, modify, or eliminate Guarantor's right of subrogation
against Client or any other party.
7. Summit's Remedies. In the event Summit obtains another
guarantee for the Indebtedness or there is more than one Guarantor under
this Guarantee, Guarantor agrees that Summit, in its sole discretion,
may (i) bring suit against Guarantor and/or the guarantors under any
other guarantee, or any of the Guarantors individually, for the
Indebtedness, (ii) compromise or settle with any one or more of
Guarantor and/or the guarantors under any other guarantee for such
consideration as Summit may deem proper, and (iii) release one or more
of Guarantor and/or the guarantors under any other guarantee from
liability. Guarantor further agrees that such action shall not impair
or affect the rights of Summit to collect the entire unpaid Indebtedness
from Guarantor pursuant to this Guarantee.
8. Application of Payments. Without affecting any obligation
created hereby or hereunder, Guarantor grants to Summit full power and
authority, in its discretion and at any time and in such manner and on
such terms as it deems fit, with or without notice to Guarantor, to
apply payments and recoveries on the Indebtedness in such manner and in
such order of priority as Summit deems proper, whether or not such
obligation is due at the time of such application.
9. Term of Guarantee. This Guarantee shall remain in full force
and effect until all Indebtedness has been fully paid. No termination
of this Guarantee by Guarantor shall be effective.
10. Subrogation, Contribution and Indemnification. Guarantor
hereby waives any and all rights of subrogation, contribution or
indemnification against Client or any other guarantor of any nature
whatsoever, now existing or hereafter arising or created.
11. Cumulative Rights. The rights and remedies herein conferred
are cumulative and not exclusive of any other rights or remedies and
shall be in addition to every other right, power and remedy herein
specifically or hereafter existing at law, in equity or by statute
which Summit might otherwise have and may be exercised from time to
time and as often and in such order as may be deemed expedient by
Summit. No delay or omission by Summit in the exercise of any such
right, power or remedy or in the pursuance of any remedy shall impair
any such right, power, or remedy or be construed to be a waiver of
any default or to be an acquiescence therein.
12. Governing Law. This Guarantee shall be governed by, and
construed in accordance with, the laws of the State of Utah.
13. Binding Effect. This Guarantee may be executed and delivered
to Summit prior to the execution and delivery of the Agreements. This
Guarantee shall nonetheless be considered a binding, enforceable
Guarantee upon its execution and delivery to Summit.
14. Revival Clause. If the incurring of any debt by Client or
Guarantor or the payment of any money or transfer of property to Summit
by or on behalf of Client, Guarantor, or any other party, should for
any reason subsequently be determined to be "voidable" or avoidable"
in whole or in part within the meaning of any state or federal law
(collectively "voidable transfers"), including, without limitation,
fraudulent conveyances or preferential transfers under the United
States Bankruptcy Code or any other federal or state law, and Summit
is required to repay or restore any voidable transfers or the amount
or any portion thereof, or upon the advice of Summit's counsel is
advised to do so, then, as to any such amount or property repaid or
restored, including all reasonable costs, expenses, and attorneys
fees of Summit related thereto, the liability of Guarantor shall
automatically be revived, reinstated and restored and shall exist as
though the voidable transfers had never been made.
15. Severability and Interpretation. Any provision of this
Guarantee which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction only, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. All references
in this Guarantee to the singular shall be deemed to include the plural
when the context so requires, and vice versa. References in the
collective or conjunctive shall also include the disjunctive unless the
context otherwise clearly requires a different interpretation.
16. Continuing Guarantee. All agreements, representations,
warranties, and covenants made herein by Guarantor shall survive the
execution and delivery of this Guarantee and shall continue in effect
so long as the Indebtedness, or any portion thereof is outstanding
and unpaid, notwithstanding any termination of the Guarantee. All
agreements, representations, warranties, and covenants made herein
by Guarantor shall survive any bankruptcy proceedings. This Guarantee
shall bind the party making the same, and its successors, assigns,
heirs, executors, and personal representatives. The death, insolvency,
bankruptcy, disability, or lack of corporate power of Client,
Guarantor, or any party at any time which is liable for the payment
of any part or all of any Indebtedness will not affect this Guarantee.
17. Joint and Several Liability. Each Guarantor shall be
jointly and severally liable, with each other and with Client and with
any other guarantors, for all obligations and liabilities arising
under this Guarantee. All of the agreements, obligations,
representations, and warranties contained herein shall apply to each
Guarantor.
18. Jury Waiver, Exclusive Jurisdiction of Utah Courts.
GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM, WHETHER IN CONTRACT OR IN
TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS
GUARANTEE.
Guarantor acknowledges that by execution and delivery of this
Guarantee, Guarantor has transacted business in the State of Utah and
Guarantor hereby voluntarily submits himself or herself, consents to,
and waives any defense, to the jurisdiction of courts located in the
State of Utah as to all matters relating to or arising from this
Guarantee. EXCEPT AS EXPRESSLY AGREED IN WRITING BY SUMMIT, THE STATE
AND FEDERAL COURTS LOCATED IN THE STATE OF UTAH SHALL HAVE SOLE AND
EXCLUSIVE JURISDICTION OF ANY AND ALL CLAIMS, DISPUTES, AND
CONTROVERSIES ARISING UNDER OR RELATING TO THIS GUARANTEE. NO
LAWSUIT, PROCEEDING, OR ANY OTHER ACTION RELATING TO OR ARISING UNDER
THIS GUARANTEE MAY BE COMMENCED OR PROSECUTED IN ANY OTHER FORUM
EXCEPT AS EXPRESSLY AGREED IN WRITING BY SUMMIT.
19. Disclosure of Information. Guarantor hereby consents to
Summit disclosing to any financial institution or investor providing
financing or capital for Summit, any and all information, knowledge,
reports, and records, including, without limitation, financial
statements, concerning Guarantor.
20. Entire Agreement. This Guarantee constitutes the entire
agreement between Summit and Guarantor and may not be altered, amended
or modified except in writing signed by Summit and Guarantor. All prior
and contemporaneous agreements and representations, express or implied,
are merged herein.
Dated: October 31, 2008
GUARANTOR:
Colorado Product Concepts, Inc.
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
GUARANTEE
This Guarantee ("Guarantee") is made by the undersigned Neoteric
Cosmetics, Inc., a Colorado corporation ("Guarantor") to Summit
Financial Resources LP ("Summit"), a Hawaii limited partnership, as an
inducement to Summit to enter into a Financing Agreement (the "Financing
Agreement") with Xxxxx'x Liquid Gold-Inc., a Colorado corporation,
("Client").
For good and valuable consideration, receipt of which is hereby
acknowledged, Guarantor, as a compensated Guarantor, agrees as follows:
1. Definitions. Terms defined in the above recitals shall have
the meanings set forth above. Terms defined in the singular shall have
the same meaning when used in the plural and vice versa. As used herein,
the term:
"Account" shall have the meaning set forth in the Financing
Agreement.
"Agreements" means the Financing Agreement or any agreements
related thereto.
"Collateral" means any and all collateral for the Indebtedness
and/or the Indebtedness, now existing or hereafter created or arising,
including Accounts purchased by Summit.
"Indebtedness" means any and all obligations of Client owing to
Summit arising from or related to the Agreements.
2. Guarantee. Guarantor absolutely and unconditionally
guarantees to Summit that Client shall promptly and fully perform, pay
and discharge the Indebtedness. If Client fails to pay any Indebtedness
promptly as the same becomes due, Guarantor agrees to pay the
Indebtedness on demand.
3. Guarantee Unconditional. This Guarantee is an absolute and
unconditional guarantee of payment and not of collectability. The
liability of Guarantor hereunder is not conditional or contingent upon
the genuineness, validity, sufficiency or enforceability of the
Agreements or any Collateral. Summit shall not be required to
(i) proceed against Client by suit or otherwise, (ii) foreclose,
proceed against, liquidate or exhaust any Collateral, or
(iii) exercise, pursue or enforce any right or remedy Summit may have
against any other guarantor (whether hereunder or under a separate
instrument), any other party, or otherwise, prior to proceeding against
Guarantor.
4. Interest, Collection Costs and Attorneys Fees. If Guarantor
fails to pay any Indebtedness promptly as the same becomes due,
Guarantor agrees to pay all costs and expenses, including reasonable
attorneys fees, incurred by Summit in enforcing or exercising any
remedies under this Guarantee and any other rights and remedies against
Guarantor. Additionally, Guarantor agrees to pay all costs and
expenses, including reasonable attorneys fees and legal expenses,
incurred by Summit in any bankruptcy proceedings of any type involving
Guarantor, including, without limitation, expenses incurred in modifying
or lifting the automatic stay, determining adequate protection, use of
cash collateral, or relating to any plan of reorganization.
5. Waiver by Guarantor. Guarantor expressly and absolutely,
without affecting the liability of Guarantor hereunder:
a. Waives notice of acceptance by Summit of this
Guarantee, the offer of guarantee contemplated by this Guarantee, or
any other notice which may be required relative to the acceptance of this
Guarantee;
b. Waives notice of the failure of Client to make any
payment on the Indebtedness and notice of the failure of any party to pay
to Summit any Account or other indebtedness held by Summit as Collateral;
c. Waives notice of any adverse change in Client's
condition, financial or otherwise, or of any other fact which might
materially increase Guarantor's risk, whether or not Summit has
knowledge of the same;
d. Waives notice of transactions which have occurred
under the Agreements or relating to or affecting this Guarantee;
e. Waives demand, protest, notice of dishonor or
nonpayment or presentment for payment of any note, agreement, or other
evidence of the Indebtedness;
f. Waives notice of any kind in bringing and prosecuting
any action on any note, agreement, or other evidence of the
Indebtedness, diligence in connection with the collection on any note,
agreement, or other evidence of Indebtedness and the handling of any
Collateral existing, or to exist, in connection therewith; and
g. Waives any right to require Summit to exhaust any
Collateral or to first proceed against any other person or property
6. Consent to Summit's Acts. Guarantor hereby authorizes and
consents to Summit at any time and from time to time, without notice or
further consent of Guarantor, doing the following and Guarantor agrees
that the liability of Guarantor shall not be released, diminished,
impaired, reduced, exonerated, or affected by:
a. The taking or accepting, or the failure by Summit to
take or accept any other collateral, guarantee for the Indebtedness
b. The modification, amendment, or extension, of any of
the Agreements, or other evidence of the Indebtedness, to the granting of
any other credit, and to the acceleration of maturity of the Indebtedness
c. Any complete or partial release, waiver, exchange,
substitution, subordination, impairment, loss, compromise, or other
modification of the Collateral or any other guarantee at any time
existing in connection with the Indebtedness;
d. The complete or partial release or substitution of
Client or any other guarantors on the Indebtedness;
e. Any renewal, extension, modification, acceleration,
consolidation, adjustment, indulgence, forbearance, waiver or
compromise of the payment of any part or all of the Indebtedness, or
any liability of any other party or any other guarantor therefore, or
the performance of any covenant contained in any agreement had or to be
had in connection with the Indebtedness, the Agreements, or the
Collateral, either with or without notice to or consent of Guarantor
f. Any neglect, delay, omission, failure, or refusal of
Summit to take or prosecute any action for the collection of the
Indebtedness or any part thereof, or for the enforcement of any
provision of any of the Agreements, or to foreclose or exhaust, or
take or prosecute any action in connection with any Collateral or any
guarantee of the Indebtedness, specifically including, but without
limitation, the failure of Summit to perfect any security interest
in any Collateral;
g. Any increase or decrease in the rate of interest on
any note, agreement, or other evidence of the Indebtedness;
h. Acceptance of any partial payments on the Indebtedness
and the application of such partial payments to part of the
Indebtedness; or
i. Summit's exercising any and all rights and remedies
available to Summit by law, at equity or agreement, even if the exercise
thereof may affect, modify, or eliminate Guarantor's right of subrogation
against Client or any other party.
7. Summit's Remedies. In the event Summit obtains another
guarantee for the Indebtedness or there is more than one Guarantor under
this Guarantee, Guarantor agrees that Summit, in its sole discretion,
may (i) bring suit against Guarantor and/or the guarantors under any
other guarantee, or any of the Guarantors individually, for the
Indebtedness, (ii) compromise or settle with any one or more of
Guarantor and/or the guarantors under any other guarantee for such
consideration as Summit may deem proper, and (iii) release one or more
of Guarantor and/or the guarantors under any other guarantee from
liability. Guarantor further agrees that such action shall not impair
or affect the rights of Summit to collect the entire unpaid Indebtedness
from Guarantor pursuant to this Guarantee.
8. Application of Payments. Without affecting any obligation
created hereby or hereunder, Guarantor grants to Summit full power and
authority, in its discretion and at any time and in such manner and on
such terms as it deems fit, with or without notice to Guarantor, to
apply payments and recoveries on the Indebtedness in such manner and in
such order of priority as Summit deems proper, whether or not such
obligation is due at the time of such application.
9. Term of Guarantee. This Guarantee shall remain in full force
and effect until all Indebtedness has been fully paid. No termination
of this Guarantee by Guarantor shall be effective.
10. Subrogation, Contribution and Indemnification. Guarantor
hereby waives any and all rights of subrogation, contribution or
indemnification against Client or any other guarantor of any nature
whatsoever, now existing or hereafter arising or created.
11. Cumulative Rights. The rights and remedies herein conferred
are cumulative and not exclusive of any other rights or remedies and
shall be in addition to every other right, power and remedy herein
specifically or hereafter existing at law, in equity or by statute
which Summit might otherwise have and may be exercised from time to
time and as often and in such order as may be deemed expedient by
Summit. No delay or omission by Summit in the exercise of any such
right, power or remedy or in the pursuance of any remedy shall impair
any such right, power, or remedy or be construed to be a waiver of
any default or to be an acquiescence therein.
12. Governing Law. This Guarantee shall be governed by, and
construed in accordance with, the laws of the State of Utah.
13. Binding Effect. This Guarantee may be executed and delivered
to Summit prior to the execution and delivery of the Agreements. This
Guarantee shall nonetheless be considered a binding, enforceable
Guarantee upon its execution and delivery to Summit.
14. Revival Clause. If the incurring of any debt by Client or
Guarantor or the payment of any money or transfer of property to Summit
by or on behalf of Client, Guarantor, or any other party, should for
any reason subsequently be determined to be "voidable" or avoidable"
in whole or in part within the meaning of any state or federal law
(collectively "voidable transfers"), including, without limitation,
fraudulent conveyances or preferential transfers under the United
States Bankruptcy Code or any other federal or state law, and Summit
is required to repay or restore any voidable transfers or the amount
or any portion thereof, or upon the advice of Summit's counsel is
advised to do so, then, as to any such amount or property repaid or
restored, including all reasonable costs, expenses, and attorneys
fees of Summit related thereto, the liability of Guarantor shall
automatically be revived, reinstated and restored and shall exist as
though the voidable transfers had never been made.
15. Severability and Interpretation. Any provision of this
Guarantee which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction only, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. All references
in this Guarantee to the singular shall be deemed to include the plural
when the context so requires, and vice versa. References in the
collective or conjunctive shall also include the disjunctive unless the
context otherwise clearly requires a different interpretation.
16. Continuing Guarantee. All agreements, representations,
warranties, and covenants made herein by Guarantor shall survive the
execution and delivery of this Guarantee and shall continue in effect
so long as the Indebtedness, or any portion thereof is outstanding
and unpaid, notwithstanding any termination of the Guarantee. All
agreements, representations, warranties, and covenants made herein
by Guarantor shall survive any bankruptcy proceedings. This Guarantee
shall bind the party making the same, and its successors, assigns,
heirs, executors, and personal representatives. The death, insolvency,
bankruptcy, disability, or lack of corporate power of Client,
Guarantor, or any party at any time which is liable for the payment
of any part or all of any Indebtedness will not affect this Guarantee.
17. Joint and Several Liability. Each Guarantor shall be
jointly and severally liable, with each other and with Client and with
any other guarantors, for all obligations and liabilities arising
under this Guarantee. All of the agreements, obligations,
representations, and warranties contained herein shall apply to each
Guarantor.
18. Jury Waiver, Exclusive Jurisdiction of Utah Courts.
GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM, WHETHER IN CONTRACT OR IN
TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS
GUARANTEE.
Guarantor acknowledges that by execution and delivery of this
Guarantee, Guarantor has transacted business in the State of Utah and
Guarantor hereby voluntarily submits himself or herself, consents to,
and waives any defense, to the jurisdiction of courts located in the
State of Utah as to all matters relating to or arising from this
Guarantee. EXCEPT AS EXPRESSLY AGREED IN WRITING BY SUMMIT, THE STATE
AND FEDERAL COURTS LOCATED IN THE STATE OF UTAH SHALL HAVE SOLE AND
EXCLUSIVE JURISDICTION OF ANY AND ALL CLAIMS, DISPUTES, AND
CONTROVERSIES ARISING UNDER OR RELATING TO THIS GUARANTEE. NO
LAWSUIT, PROCEEDING, OR ANY OTHER ACTION RELATING TO OR ARISING UNDER
THIS GUARANTEE MAY BE COMMENCED OR PROSECUTED IN ANY OTHER FORUM
EXCEPT AS EXPRESSLY AGREED IN WRITING BY SUMMIT.
19. Disclosure of Information. Guarantor hereby consents to
Summit disclosing to any financial institution or investor providing
financing or capital for Summit, any and all information, knowledge,
reports, and records, including, without limitation, financial
statements, concerning Guarantor.
20. Entire Agreement. This Guarantee constitutes the entire
agreement between Summit and Guarantor and may not be altered, amended
or modified except in writing signed by Summit and Guarantor. All prior
and contemporaneous agreements and representations, express or implied,
are merged herein.
Dated: October 31, 2008
GUARANTOR:
Neoteric Cosmetics, Inc.
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
GUARANTEE
This Guarantee ("Guarantee") is made by the undersigned SLG
Chemicals, Inc., a Colorado corporation ("Guarantor") to Summit
Financial Resources LP ("Summit"), a Hawaii limited partnership, as an
inducement to Summit to enter into a Financing Agreement (the "Financing
Agreement") with Xxxxx'x Liquid Gold-Inc., a Colorado corporation,
("Client").
For good and valuable consideration, receipt of which is hereby
acknowledged, Guarantor, as a compensated Guarantor, agrees as follows:
1. Definitions. Terms defined in the above recitals shall have
the meanings set forth above. Terms defined in the singular shall have
the same meaning when used in the plural and vice versa. As used herein,
the term:
"Account" shall have the meaning set forth in the Financing
Agreement.
"Agreements" means the Financing Agreement or any agreements
related thereto.
"Collateral" means any and all collateral for the Indebtedness
and/or the Indebtedness, now existing or hereafter created or arising,
including Accounts purchased by Summit.
"Indebtedness" means any and all obligations of Client owing to
Summit arising from or related to the Agreements.
2. Guarantee. Guarantor absolutely and unconditionally
guarantees to Summit that Client shall promptly and fully perform, pay
and discharge the Indebtedness. If Client fails to pay any Indebtedness
promptly as the same becomes due, Guarantor agrees to pay the
Indebtedness on demand.
3. Guarantee Unconditional. This Guarantee is an absolute and
unconditional guarantee of payment and not of collectability. The
liability of Guarantor hereunder is not conditional or contingent upon
the genuineness, validity, sufficiency or enforceability of the
Agreements or any Collateral. Summit shall not be required to
(i) proceed against Client by suit or otherwise, (ii) foreclose,
proceed against, liquidate or exhaust any Collateral, or
(iii) exercise, pursue or enforce any right or remedy Summit may have
against any other guarantor (whether hereunder or under a separate
instrument), any other party, or otherwise, prior to proceeding against
Guarantor.
4. Interest, Collection Costs and Attorneys Fees. If Guarantor
fails to pay any Indebtedness promptly as the same becomes due,
Guarantor agrees to pay all costs and expenses, including reasonable
attorneys fees, incurred by Summit in enforcing or exercising any
remedies under this Guarantee and any other rights and remedies against
Guarantor. Additionally, Guarantor agrees to pay all costs and
expenses, including reasonable attorneys fees and legal expenses,
incurred by Summit in any bankruptcy proceedings of any type involving
Guarantor, including, without limitation, expenses incurred in modifying
or lifting the automatic stay, determining adequate protection, use of
cash collateral, or relating to any plan of reorganization.
5. Waiver by Guarantor. Guarantor expressly and absolutely,
without affecting the liability of Guarantor hereunder:
a. Waives notice of acceptance by Summit of this
Guarantee, the offer of guarantee contemplated by this Guarantee, or
any other notice which may be required relative to the acceptance of this
Guarantee;
b. Waives notice of the failure of Client to make any
payment on the Indebtedness and notice of the failure of any party to pay
to Summit any Account or other indebtedness held by Summit as Collateral;
c. Waives notice of any adverse change in Client's
condition, financial or otherwise, or of any other fact which might
materially increase Guarantor's risk, whether or not Summit has
knowledge of the same;
d. Waives notice of transactions which have occurred
under the Agreements or relating to or affecting this Guarantee;
e. Waives demand, protest, notice of dishonor or
nonpayment or presentment for payment of any note, agreement, or other
evidence of the Indebtedness;
f. Waives notice of any kind in bringing and prosecuting
any action on any note, agreement, or other evidence of the
Indebtedness, diligence in connection with the collection on any note,
agreement, or other evidence of Indebtedness and the handling of any
Collateral existing, or to exist, in connection therewith; and
g. Waives any right to require Summit to exhaust any
Collateral or to first proceed against any other person or property
6. Consent to Summit's Acts. Guarantor hereby authorizes and
consents to Summit at any time and from time to time, without notice or
further consent of Guarantor, doing the following and Guarantor agrees
that the liability of Guarantor shall not be released, diminished,
impaired, reduced, exonerated, or affected by:
a. The taking or accepting, or the failure by Summit to
take or accept any other collateral, guarantee for the Indebtedness
b. The modification, amendment, or extension, of any of
the Agreements, or other evidence of the Indebtedness, to the granting of
any other credit, and to the acceleration of maturity of the Indebtedness
c. Any complete or partial release, waiver, exchange,
substitution, subordination, impairment, loss, compromise, or other
modification of the Collateral or any other guarantee at any time
existing in connection with the Indebtedness;
d. The complete or partial release or substitution of
Client or any other guarantors on the Indebtedness;
e. Any renewal, extension, modification, acceleration,
consolidation, adjustment, indulgence, forbearance, waiver or
compromise of the payment of any part or all of the Indebtedness, or
any liability of any other party or any other guarantor therefore, or
the performance of any covenant contained in any agreement had or to be
had in connection with the Indebtedness, the Agreements, or the
Collateral, either with or without notice to or consent of Guarantor
f. Any neglect, delay, omission, failure, or refusal of
Summit to take or prosecute any action for the collection of the
Indebtedness or any part thereof, or for the enforcement of any
provision of any of the Agreements, or to foreclose or exhaust, or
take or prosecute any action in connection with any Collateral or any
guarantee of the Indebtedness, specifically including, but without
limitation, the failure of Summit to perfect any security interest
in any Collateral;
g. Any increase or decrease in the rate of interest on
any note, agreement, or other evidence of the Indebtedness;
h. Acceptance of any partial payments on the Indebtedness
and the application of such partial payments to part of the
Indebtedness; or
i. Summit's exercising any and all rights and remedies
available to Summit by law, at equity or agreement, even if the exercise
thereof may affect, modify, or eliminate Guarantor's right of subrogation
against Client or any other party.
7. Summit's Remedies. In the event Summit obtains another
guarantee for the Indebtedness or there is more than one Guarantor under
this Guarantee, Guarantor agrees that Summit, in its sole discretion,
may (i) bring suit against Guarantor and/or the guarantors under any
other guarantee, or any of the Guarantors individually, for the
Indebtedness, (ii) compromise or settle with any one or more of
Guarantor and/or the guarantors under any other guarantee for such
consideration as Summit may deem proper, and (iii) release one or more
of Guarantor and/or the guarantors under any other guarantee from
liability. Guarantor further agrees that such action shall not impair
or affect the rights of Summit to collect the entire unpaid Indebtedness
from Guarantor pursuant to this Guarantee.
8. Application of Payments. Without affecting any obligation
created hereby or hereunder, Guarantor grants to Summit full power and
authority, in its discretion and at any time and in such manner and on
such terms as it deems fit, with or without notice to Guarantor, to
apply payments and recoveries on the Indebtedness in such manner and in
such order of priority as Summit deems proper, whether or not such
obligation is due at the time of such application.
9. Term of Guarantee. This Guarantee shall remain in full force
and effect until all Indebtedness has been fully paid. No termination
of this Guarantee by Guarantor shall be effective.
10. Subrogation, Contribution and Indemnification. Guarantor
hereby waives any and all rights of subrogation, contribution or
indemnification against Client or any other guarantor of any nature
whatsoever, now existing or hereafter arising or created.
11. Cumulative Rights. The rights and remedies herein conferred
are cumulative and not exclusive of any other rights or remedies and
shall be in addition to every other right, power and remedy herein
specifically or hereafter existing at law, in equity or by statute
which Summit might otherwise have and may be exercised from time to
time and as often and in such order as may be deemed expedient by
Summit. No delay or omission by Summit in the exercise of any such
right, power or remedy or in the pursuance of any remedy shall impair
any such right, power, or remedy or be construed to be a waiver of
any default or to be an acquiescence therein.
12. Governing Law. This Guarantee shall be governed by, and
construed in accordance with, the laws of the State of Utah.
13. Binding Effect. This Guarantee may be executed and delivered
to Summit prior to the execution and delivery of the Agreements. This
Guarantee shall nonetheless be considered a binding, enforceable
Guarantee upon its execution and delivery to Summit.
14. Revival Clause. If the incurring of any debt by Client or
Guarantor or the payment of any money or transfer of property to Summit
by or on behalf of Client, Guarantor, or any other party, should for
any reason subsequently be determined to be "voidable" or avoidable"
in whole or in part within the meaning of any state or federal law
(collectively "voidable transfers"), including, without limitation,
fraudulent conveyances or preferential transfers under the United
States Bankruptcy Code or any other federal or state law, and Summit
is required to repay or restore any voidable transfers or the amount
or any portion thereof, or upon the advice of Summit's counsel is
advised to do so, then, as to any such amount or property repaid or
restored, including all reasonable costs, expenses, and attorneys
fees of Summit related thereto, the liability of Guarantor shall
automatically be revived, reinstated and restored and shall exist as
though the voidable transfers had never been made.
15. Severability and Interpretation. Any provision of this
Guarantee which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction only, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. All references
in this Guarantee to the singular shall be deemed to include the plural
when the context so requires, and vice versa. References in the
collective or conjunctive shall also include the disjunctive unless the
context otherwise clearly requires a different interpretation.
16. Continuing Guarantee. All agreements, representations,
warranties, and covenants made herein by Guarantor shall survive the
execution and delivery of this Guarantee and shall continue in effect
so long as the Indebtedness, or any portion thereof is outstanding
and unpaid, notwithstanding any termination of the Guarantee. All
agreements, representations, warranties, and covenants made herein
by Guarantor shall survive any bankruptcy proceedings. This Guarantee
shall bind the party making the same, and its successors, assigns,
heirs, executors, and personal representatives. The death, insolvency,
bankruptcy, disability, or lack of corporate power of Client,
Guarantor, or any party at any time which is liable for the payment
of any part or all of any Indebtedness will not affect this Guarantee.
17. Joint and Several Liability. Each Guarantor shall be
jointly and severally liable, with each other and with Client and with
any other guarantors, for all obligations and liabilities arising
under this Guarantee. All of the agreements, obligations,
representations, and warranties contained herein shall apply to each
Guarantor.
18. Jury Waiver, Exclusive Jurisdiction of Utah Courts.
GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM, WHETHER IN CONTRACT OR IN
TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS
GUARANTEE.
Guarantor acknowledges that by execution and delivery of this
Guarantee, Guarantor has transacted business in the State of Utah and
Guarantor hereby voluntarily submits himself or herself, consents to,
and waives any defense, to the jurisdiction of courts located in the
State of Utah as to all matters relating to or arising from this
Guarantee. EXCEPT AS EXPRESSLY AGREED IN WRITING BY SUMMIT, THE STATE
AND FEDERAL COURTS LOCATED IN THE STATE OF UTAH SHALL HAVE SOLE AND
EXCLUSIVE JURISDICTION OF ANY AND ALL CLAIMS, DISPUTES, AND
CONTROVERSIES ARISING UNDER OR RELATING TO THIS GUARANTEE. NO
LAWSUIT, PROCEEDING, OR ANY OTHER ACTION RELATING TO OR ARISING UNDER
THIS GUARANTEE MAY BE COMMENCED OR PROSECUTED IN ANY OTHER FORUM
EXCEPT AS EXPRESSLY AGREED IN WRITING BY SUMMIT.
19. Disclosure of Information. Guarantor hereby consents to
Summit disclosing to any financial institution or investor providing
financing or capital for Summit, any and all information, knowledge,
reports, and records, including, without limitation, financial
statements, concerning Guarantor.
20. Entire Agreement. This Guarantee constitutes the entire
agreement between Summit and Guarantor and may not be altered, amended
or modified except in writing signed by Summit and Guarantor. All prior
and contemporaneous agreements and representations, express or implied,
are merged herein.
Dated: October 31, 2008
GUARANTOR:
SLG Chemicals, Inc.
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
