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EXHIBIT 10.9
FIRSTATE BANK OF COLORADO
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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
"LENDER"
COMMERCIAL/AGRICULTURAL REVOLVING OR DRAW
NOTE-VARIABLE RATE
BORROWER: NINE LINE, INC., A COLORADO CORPORATION
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
IDENTIFICATION NO.: ▇▇▇-▇▇▇▇▇▇▇
TELEPHONE NO.:
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OFFICER INTEREST RATE PRINCIPAL FUNDING/ MATURITY CUSTOMER LOAN
INITIALS AMOUNT/ AGREEMENT DATE NUMBER NUMBER
CREDIT LIMIT DATE
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GP Variable $1,300,000.00 09/27/99 06/27/00 05-174961
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PROMISE TO PAY
For value received, ▇▇▇▇▇▇▇▇ promises to pay to the order of Lender indicated
above the principal amount of ONE MILLION THREE HUNDRED THOUSAND & 00/100
Dollars ($1,300,000.00) or, if less, the aggregate unpaid principal amount of
all loans or advances made by the Lender to the Borrower, plus interest on the
unpaid principal balance at the rate and in the manner described below. All
amounts received by ▇▇▇▇▇▇ shall be applied first to late payment charges and
expenses, then to accrued interest, and then to principal.
INTEREST RATE: This Note has a variable rate feature. Interest on the Note may
change from time to time if the Index Rate identified below changes. Interest
shall be computed on the basis of 360 days and the actual number of days per
year. Interest on this Note shall be calculated at a variable rate equal to ONE
& 750/1000 percent (1.750%) per annum over the Index Rate. The initial Index
Rate is currently EIGHT & 250/1000 percent (8.250%) per annum. Therefore, the
initial interest rate on this Note shall be TEN & No/100 percent (10.000%) per
annum. Any change in the interest rate resulting from a change in the Index Rate
will be effective on: THE DATE THE INTEREST RATE CHANGES
INDEX RATE: The Index Rate for this Note shall be: PRIME RATE AS PUBLISHED IN
THE WALL STREET JOURNAL
MINIMUM RATE/MAXIMUM RATE: The minimum interest rate on this Note shall be n/a
percent (n/a%) per annum. The maximum interest rate on this Note shall not
exceed TWENTY-ONE & No/1000 percent (21.000%) per annum or the maximum interest
rate Lender is permitted to charge by law, whichever is less.
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DEFAULT RATE: In the event of any default under this Note, the Lender may in its
discretion, determine that all amounts owed to Lender shall bear interest at the
lesser of EIGHTEEN & No/1000 percent (18.000%), or the maximum interest rate
Lender is permitted to charge by law.
PAYMENT SCHEDULE: Borrower shall pay the principal and interest according to the
following schedule:
INTEREST TO BE PAID MONTHLY COMMENCING OCTOBER 27, 1999 AND CONTINUING
ON A MONTHLY BASIS THEREAFTER. A FINAL PAYMENT OF THE UNPAID PRINCIPAL
BALANCE PLUS ACCRUED INTEREST IS DUE AND PAYABLE AT MATURITY.
All payments will be made to Lender at its address described above and in lawful
currency of the United States of America.
RENEWAL: If checked, [ ] this Note is a renewal of loan number:
SECURITY: To secure the payment and performance of obligations incurred under
this Note, Borrower grants Lender a security interest in, and pledges and
assigns to Lender all of Borrower's rights, title, and interest, in all monies,
instruments, savings, checking and other deposit accounts of Borrower's,
(excluding IRA, ▇▇▇▇▇ and trust accounts and deposits subject to tax penalties
if so assigned) that are now or in the future in ▇▇▇▇▇▇'s custody or control.
Upon default, and to the extent permitted by applicable law, Lender may exercise
its security interest in all such property which shall be in addition to
Lender's common law right of setoff. If checked, the obligations under this Note
are also secured by a lien and/or security interest in the property described in
the documents executed in connection with this Note as well as any other
property designated as security now or in the future.
PREPAYMENT: This Note may be prepaid in part or in full on or before its
maturity date. If this Note contains more than one installment, all prepayments
will be credited as determined by ▇▇▇▇▇▇ and as permitted by law. If this Note
is prepaid in full, there will be: [X] No minimum finance charge or prepayment
penalty. [ ] A minimum finance charge of $__________. [ ] A prepayment penalty
of _____% of the principal prepaid.
LATE PAYMENT CHARGE: If a payment is received more than 10 days late, Borrower
will be charged a late payment charge of $15.00 or 5.000% of the payment amount,
whichever is greater or less, as permitted by law.
REVOLVING OR DRAW FEATURE: [ ] This Note possesses a revolving feature. Upon
satisfaction of the conditions set forth in this Note, Borrower shall be
entitled to borrower up to the full principal amount of the Note and to repay
and reborrow from time to time during the term of this Note. [X] This Note
possesses a draw feature. Upon satisfaction of the conditions set forth in this
Note, Borrower shall be entitled to make one or more draws under this Note. The
aggregate amount of such draws shall not exceed the full principal amount of
this Note.
Lender shall maintain a written ledger of the amounts loaned to and repaid by
Borrower under this Note. The aggregate unpaid principal amount shown on such
ledger shall be rebuttable presumptive evidence of the principal amount owing
and unpaid on this Note. The Lender's
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failure to record the date and amount of any loan or advance on such ledger
shall not limit or otherwise affect the obligations of the Borrower under this
Note to repay the principal amount of the loans or advances together with all
interest accruing thereon. Lender shall not be obligated to provide Borrower
with a copy of the ledger on a periodic basis, however, Borrower shall be
entitled to inspect or obtain a copy of the ledger during ▇▇▇▇▇▇'s business
hours.
CONDITIONS FOR ADVANCES: If there is no default under this Note, Borrower shall
be entitled to borrow monies under this Note (subject to the limitations
described above) under the following conditions:
PER SECTION 4 OF THE "COMMERCIAL CONSTRUCTION LOAN AGREEMENT" DATED
THIS SAME DATE.
▇▇▇▇▇▇▇▇ ACKNOWLEDGES THAT ▇▇▇▇▇▇▇▇ HAS READ, UNDERSTANDS, AND AGREES TO THE
TERMS AND CONDITIONS OF THIS NOTE INCLUDING THE PROVISIONS ON THE REVERSE SIDE.
BORROWER ACKNOWLEDGES RECEIPT OF AN EXACT COPY OF THIS NOTE.
NOTE DATE: SEPTEMBER 27, 1999
BORROWER: NINE LINE, INC., BORROWER:
a Colorado corporation
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
SENIOR VICE PRESIDENT
BORROWER: BORROWER:
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BORROWER: BORROWER:
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BORROWER: BORROWER:
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BORROWER
NINE LINE, INC.,
A COLORADO CORPORATION
FIRSTIER BANK EXTENSION AND AMENDMENT TO
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. PROMISSORY NOTE
WESTMINSTER, COLORADO 80031 ADDRESS
(▇▇▇) ▇▇▇-▇▇▇▇
"LENDER" ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TELEPHONE NO.
IDENTIFICATION NO.
(▇▇▇) ▇▇▇-▇▇▇▇
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NOTE INTEREST RATE PRINCIPAL FUNDING MATURITY CUSTOMER LOAN
INFORMATION AMOUNT DATE DATE NUMBER NUMBER
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Variable $1,300,000.00 09/27/99 06/27/00 05-174961
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AMENDMENT TO LOAN TO CONVERT CONSTRUCTION LOAN TO A MINI-PERM
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EXTENSION AND AMENDMENT TO NOTE
Effective June 09, 2000, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ agree that the Note, identified
above, (the "Note") shall be amended as follows:
[X] EXTENSION: The Maturity Date of the Note is extended to June 9, 2006.
[X] INTEREST RATE: The interest rate on the Note shall be changed to:
[ ] A fixed rate of _____% per annum.
[X] A variable rate of 1.250% per annum over the Index Rate
indicated below. Any change in the interest rate resulting
from a change in the Index Rate will be effective on:
THE DAY THE INDEX RATE CHANGES.
The Index Rate used for the Note shall be: PRIME RATE AS
PUBLISHED IN THE WALL STREET JOURNAL.
If the Index Rate is redefined or becomes unavailable, then
Lender may select another index which is substantially
similar.
The initial interest rate on the Note, as amended, shall be
10.750% per annum.
MINIMUM RATE/MAXIMUM RATE: Subject to applicable law, the minimum
interest rate on the Note, as amended, shall be n/a% per annum. The
maximum interest rate on the Note, as amended, shall not exceed 21.00%
per annum, or if less, or if a maximum rate is not indicated, the
maximum interest rate Lender is permitted to charge by law.
RATE ADJUSTMENT LIMITATIONS: The maximum interest rate increase at any
one time will be n/a%. The maximum rate decrease at any one time will
be n/a%.
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PAYMENT SCHEDULE: Borrower shall pay the principal and interest on the Note
according to the following schedule:
71 payments of $13,347.44 beginning July 09, 2000 and continuing at
monthly time intervals thereafter. A final payment of the unpaid
principal balance plus accrued interest is due and payable on June 09,
2006.
ADDITIONAL TERMS:
TERM OUT LOAN - CHANGING PAYMENT STRUCTURE AND DUE DATES, INTEREST
RATE VARIANCE AND FREQUENCY CHANGE, MATURITY AND
DELETING LINE OF CREDIT FEATURE.
INSURANCE: If Borrower has purchased credit life or credit accident and health
insurance, this insurance may only cover payments made under the Note.
ADDITIONAL DOCUMENTS: ▇▇▇▇▇▇▇▇ agrees to execute any additional documents that
▇▇▇▇▇▇ may request in connection with this extension/amendment of the Note.
RATIFICATION AND INCORPORATION: The terms, definitions, and conditions of the
Note are fully ratified and incorporated into this Agreement by this reference.
The terms and conditions of the Note shall remain in full force and effect
except as specifically extended/amended by this Agreement. The Note and all
other loan documents, as extended and amended, are hereby adopted, ratified,
confirmed and acknowledged to be in full force and effect and binding upon
Borrower with all of the collateral being pledged remaining as security for
Lender.
RESERVATION OF RIGHTS: If a Borrower under the Note does not sign this
Agreement, such Borrower will remain liable under the terms and conditions
contained in the Note, if not released from those obligations in a writing
signed by ▇▇▇▇▇▇.
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AMENDED
NOTE INTEREST RATE PRINCIPAL MATURITY CUSTOMER LOAN
INFORMATION AMOUNT DATE NUMBER NUMBER
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Variable $1,300,000.00 06/09/06 05-174961
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BORROWER WAIVES ALL KNOWN AND UNKNOWN, ABSOLUTE AND CONTINGENT, CLAIMS,
DEFENSES, SETOFFS OR COUNTERCLAIMS AGAINST LENDER OR ITS SHAREHOLDERS,
DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS AS OF THE DATE OF THIS AGREEMENT.
▇▇▇▇▇▇▇▇ ACKNOWLEDGES THAT ▇▇▇▇▇▇▇▇ HAS READ, UNDERSTANDS AND AGREES TO THE
TERMS OF THIS AGREEMENT. BORROWER ACKNOWLEDGES RECEIPT OF AN EXACT COPY OF THIS
AGREEMENT.
Dated:
BORROWER: NINE LINE, INC. BORROWER:
a Colorado Corporation
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
PRESIDENT
BORROWER: BORROWER:
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BORROWER: BORROWER:
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BORROWER: BORROWER:
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LENDER:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇
ASSISTANT VICE PRESIDENT
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FIRSTIER BANK
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
WESTMINSTER, CO 80031 UNLIMITED CONTINUING GUARANTY
(▇▇▇) ▇▇▇-▇▇▇▇ "LENDER"
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GUARANTOR BORROWER
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇ NINE LINE, INC.
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ADDRESS ADDRESS
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3883 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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TELEPHONE NO. IDENTIFICATION NO. TELEPHONE NO. IDENTIFICATION NO.
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(▇▇▇) ▇▇▇-▇▇▇▇ ###-##-#### (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇-▇▇▇▇▇▇▇
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1. CONSIDERATION. This Guaranty is being executed to induce Lender, indicated
above, to enter into one or more loans or other financial accommodations with or
on behalf of Borrower.
2. GUARANTY. Guarantor hereby unconditionally guarantees the prompt and full
payment and performance, and promises to pay all of ▇▇▇▇▇▇▇▇'s present and
future, joint and/or several, direct and indirect, absolute and contingent,
express and implied, indebtedness, liabilities, obligations and covenants
(cumulatively "Indebtedness") to Lender when due (whether upon maturity or by
demand, acceleration or otherwise). Guarantor's liabilities and obligations
under this Guaranty ("Obligations") shall be unlimited and shall include all
present and future written agreements between Borrower and Lender (whether
executed for the same or different purposes than the foregoing), evidencing the
Indebtedness, together with all interest and all of ▇▇▇▇▇▇'s expenses and costs,
including, but not limited to reasonable attorney's fees incurred in connection
with the indebtedness including any amendments, extensions, modifications,
renewals, replacements or substitutions thereto, including, but not limited to,
the following indebtedness:
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PRINCIPAL AMOUNT/ FUNDING/ MATURITY CUSTOMER LOAN
INTEREST RATE CREDIT LIMIT AGREEMENT DATE DATE NUMBER NUMBER
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7.530% $200,000.00 04/07/00 10/07/00 05-185713
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3. SECURITY INTEREST. [ ] If checked, the Obligations under this Guaranty are
secured by the collateral described in any security instrument(s) executed in
connection with this Guaranty and any collateral described in any other security
instrument(s) securing this Guaranty or all of Guarantor's obligations.
4. ABSOLUTE AND CONTINUING NATURE OF GUARANTY. Guarantor's Obligations are
absolute and continuing and shall not be affected or impaired if Lender
repeatedly and unconditionally amends, renews, extends, compromises, exchanges,
fails to exercise or perfect rights in, impairs or releases any collateral or
any of the indebtedness owed by any Borrower, Co-guarantor or third party, or
collateral. In addition, the Obligations shall not be affected or impaired by
the business cessation, or other financial deterioration of any Borrower,
Guarantor, or third party or by any state of facts or the happening from time to
time of any event, including without limitation: The invalidity, irregularity,
illegality or unenforceability of, or any defect in, the promissory note or any
agreement or any collateral security for the Obligation (the "Collateral"); Any
present or future law or order of any government (de jure or de facto) or of any
agency thereof purporting to reduce, amend or otherwise affect the Indebtedness
of the Borrower or any other obligor or any other terms of payment; The waiver,
compromise, settlement, release or termination of any or all of the obligations,
covenants or agreements of the Borrower under the promissory note or any
agreement or of any party named as Guarantor under this Guaranty; The failure to
give notice to the Guarantor of the occurrence of an event of default under the
promissory note or any other agreement; The loss, release, sale, exchange,
surrender or other change in any Collateral; The repeated extension of the time
for payment of any principal of or interest on the Indebtedness or of the time
for performance of any obligations, covenants or agreements under or arising out
of the promissory note or any agreement or the repeated extension or the renewal
of any thereof; The modification or amendment (whether material or otherwise) of
any obligation, covenant or agreement set forth in the promissory note or any
agreement; The taking of, or the omission to take, any right, power or remedy
conferred on the Lender in the promissory note or any agreement; The voluntary
or involuntary liquidation, dissolution, sale or other disposition of all or
substantially all the assets, marshalling of assets and liabilities,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition with creditors or readjustment of, or
other similar proceedings affecting the Guarantor or the Borrower or any of
their assets, or any allegation or contest of the validity of the promissory
note or any agreement; The default or failure of the Guarantor to fully perform
any Obligations set forth in this Guaranty; Any event or action that would, in
the absence of this paragraph, result in the release or discharge of the
Guarantor from the performance or observance of any Obligation, covenant or
agreement
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contained in this Guaranty; and, Any other circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or a guarantor.
5. DIRECT AND UNCONDITIONAL NATURE OF GUARANTY. Guarantor's Obligations are
direct and unconditional and may be enforced without requiring Lender to
exercise, enforce, or exhaust any right or remedy against any Borrower,
Co-guarantor, third party, or any security or Collateral.
6. WAIVER. Guarantor hereby waives notice of the acceptance of this Guaranty,
notice of present and future extensions of credit and other financial
accommodations by Lender to any Borrower; notice of the obtaining or release of
any guaranty, assignment, or other security for any of the indebtedness; notice
of presentment for payment, demand, protest, dishonor, default, and nonpayment
pertaining to the indebtedness and this Guaranty; and, any and all defenses to
payment as permitted by law.
▇▇▇▇▇▇▇▇▇ ACKNOWLEDGES THAT ▇▇▇▇▇▇▇▇▇ HAS READ, UNDERSTANDS, AND AGREES TO THE
TERMS AND CONDITIONS OF THIS GUARANTY INCLUDING THE TERMS AND CONDITIONS ON THE
REVERSE SIDE. ▇▇▇▇▇▇▇▇▇ HAS EXECUTED THIS GUARANTY WITH THE INTENT TO BE LEGALLY
BOUND NOTWITHSTANDING ANY FAILURE BY ANY OTHER PERSON TO SIGN THIS GUARANTY.
GUARANTOR ACKNOWLEDGES RECEIPT OF AN EXACT COPY OF THIS GUARANTY.
Dated: April 07, 2000
GUARANTOR: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇
GUARANTOR: GUARANTOR:
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