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LOAN NUMBER
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LOAN NAME
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ACCT. NUMBER
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AGREEMENT DATE
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INITIALS
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1759
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Eldorado Artesian Springs,
Inc.
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300117
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03/17/09
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RA
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NOTE AMOUNT
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INDEX (w/Margin)
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RATE
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MATURITY DATE
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LOAN PURPOSE
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$300,000.00
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Not Applicable
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8.000%
Creditor Use Only
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06/30/09
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Commercial
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COMMERCIAL
LOAN AGREEMENT
Single Advance Loan
DATE AND
PARTIES. The date of this Commercial Loan Agreement (Agreement) is
March 17, 2009. The parties and their addresses are as
follows:
AMERICAN
NATIONAL BANK 1360 Walnut Street,
Suite 100 Boulder, CO 80302
ELDORADO
ARTESIAN SPRINGS, INC. a Colorado Corporation
1783 Dogwood Street
Louisville, CO 80027
DOUGLAS A,
LARSON
31 Fowler Lane
Eldorado Springs, CO 80025
KEVIN M.
SIPPLE
12 Baldwin Circle
Eldorado Springs, CO 80025
JEREMY S.
MARTIN
2707 4th Street
Boulder, CO 80304
1. DEFINITIONS.
For the purposes of this Agreement, the following terms have the
following meanings,
A.
Accounting Terms. In this Agreement, any accounting terms that are
not specifically defined will have their customary meanings under
generally accepted accounting principles.
B.
Insiders. Insiders include those defined as insiders by the United
States Bankruptcy Code, as amended; or to the extent left
undefined, include without limitation any officer, employee,
stockholder or member, director, partner, or any immediate family
member of any of the foregoing, or any person or entity which,
directly or indirectly, controls, is controlled by or is under
common control with me.
C. Loan.
The Loan refers to this transaction generally, including
obligations and duties arising from the terms of all documents
prepared or submitted for this transaction.
D. Loan
Documents. Loan Documents refer to all the documents executed as a
part of or in connection with the Loan.
E. Pronouns. The pronouns “I”, “me” and
“my” refer to every Borrower signing this Agreement,
individually or together. “You” and “your”
refers to the Loan’s lender.
F.
Property. Property is any property, real, personal or intangible,
that secures my performance of the obligations of this
Loan.
2. SINGLE
ADVANCE. In accordance with the terms of this Agreement and other
Loan Documents, you will provide me with a term note in the amount
of $300,000.00 (Principal). I will receive the funds from this Loan
in one advance, No additional advances are contemplated, except
those made to protect and preserve your interests as provided in
this Agreement or other Loan Documents.
3. MATURITY
DATE. I agree to fully repay the Loan by June 30,
2009.
4. WARRANTIES
AND REPRESENTATIONS. I make to you the following warranties and
representations which will continue as long as this Loan is in
effect, except when this Agreement provides otherwise.
A. Power. I
am duly organized, and validly existing and in good standing in all
jurisdictions in which I operate. I have the power and authority to
enter into this transaction and to carry on my business or activity
as it is now being conducted and, as applicable, am qualified to do
so in each jurisdiction in which I operate.
B.
Authority. The execution, delivery and performance of this Loan and
the obligation evidenced by the Note are within my powers, have
been duly authorized, have received all necessary governmental
approval, will not violate any provision of law, or order of court
or governmental agency, and will not violate any agreement to which
I am a party or to which I am or any of my property is
subject.
C. Name and
Place of Business. Other than previously disclosed in writing to
you I have not changed my name or principal place of business
within the last 10 years and have not used any other trade or
fictitious name. Without your prior written consent, I do not and
will not use any other name and will preserve my existing name,
trade names and franchises.
D.
Hazardous Substances. Except as I previously disclosed in writing
and you acknowledge in writing, no Hazardous Substance, underground
tanks, private dumps or open wells are currently located at, on,
in, under or about the Property.
E. Use of
Property. After diligent inquiry, I do not know or have reason to
know that any Hazardous Substance has been discharged, leached or
disposed of, in violation of any Environmental Law, from the
property onto, over or into any other property, or from any other
property onto, over or into the property.
F.
Environmental Laws. I have no knowledge or reason to believe that
there is any pending or threatened investigation, claim, judgment
or order, violation, lien, or other notice under any Environmental
Law that concerns me or the property. The property and any
activities on the property are in full compliance with all
Environmental Law.
G. Loan
Purpose. This is a business-purpose loan transaction.
H. No Other
Liens. I own or lease all property that I need to conduct my
business and activities. I have good and marketable title to all
property that I own or lease. All of my Property is free and clear
of all liens, security interests, encumbrances and other adverse
claims and interests, except those to you or those you consent to
in writing.
I.
Compliance With Laws. I am not violating any laws, regulations,
rules, orders, judgments or decrees applicable to me or my
property, except for those which I am challenging in good faith
through proper proceedings after providing adequate reserves to
fully pay the claim and its challenge should I lose.
5. FINANCIAL
STATEMENTS. I will prepare and maintain my financial records using
consistently applied generally accepted accounting principles then
in effect. I will provide you with financial information in a form
that you accept and under the following terms.
A.
Certification. I represent and warrant that any financial
statements that I provide you fairly represents my financial
condition for the stated periods, is current, complete, true and
accurate in all material respects, includes all of my direct or
contingent liabilities and there has been no material adverse
change in my financial condition, operations or business since the
date the financial information was prepared,
B.
Frequency. In addition to the financial statements provided to you
prior to closing, I will provide you with current financial
statements on an annual basis, or as otherwise requested by you,
until I have performed all of my obligations under the Loan and you
terminate the Loan in writing.
C.
Requested Information. I will provide you with any other
information about my operations, financial affairs and condition
within see below or 30 days after your request.
D.
Additional Financial Statements Term.
(1) Annual
Audited Business Financial Statements: Borrower will provide fiscal
year end, audited business financial statements within 90-days of
fiscal year end.
(2) Quarterly
10-QSB Forms: Borrower will provide quarterly 10-QSB forms, within
30 days of filing due date.
(3) Annual
Personal Financial Statements: Co-makers will provide a financial
statement annually or within 30 days of written
request.
(4) Annual
Personal Tax Returns: Co-makers will provide personal tax returns,
or valid extension, within 30 days of filing due date. If an
extension is received, the filed tax returns must be received
within 30-days of expiration of extension.
6. COVENANTS.
Until the Loan and all related debts, liabilities and obligations
are paid and discharged, I will comply with the following terms,
unless you waive compliance in writing.
A.
Participation. I consent to you participating or syndicating the
Loan and sharing any information that you decide is necessary about
me and the Loan with the other participants or
syndicators.
B.
Inspection. Following your written request, I will immediately pay
for all one-time and recurring out-of-pocket costs that are related
to the inspection of my records, business or Property that secures
the Loan. Upon reasonable notice, I will permit you or your agents
to enter any of my premises and any location where my Property is
located during regular business hours to do the
following.
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(1)
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You may inspect, audit, check,
review and obtain copies from my books, records, journals, orders,
receipts, and any correspondence and other business related
data.
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(2)
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You may discuss my affairs,
finances and business with anyone who provides you with evidence
that they are a creditor of mine, the sufficiency of which will be
subject to your sole discretion.
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After prior
notice to me, you may discuss my financial condition and business
operations with my independent accountants, if any, or my chief
financial officer and I may be present during these discussions. As
long as the Loan is outstanding, I will direct all of my
accountants and auditors to permit you to examine my records in
their possession and to make copies of these records. You will use
your best efforts to maintain the confidentiality of the
information you or your agents obtain, except you may provide your
regulator, if any, with required information about my financial
condition, operation and business or that of my parent,
subsidiaries or affiliates.
C. Business
Requirements. I will preserve and maintain my present existence and
good standing in the jurisdiction where I am organized and all of
my rights, privileges and franchises. I will do all that is needed
or required to continue my business or activities as presently
conducted, by obtaining licenses, permits and bonds everywhere I
engage in business or activities or own, lease or locate my
property. I will obtain your prior written consent before I cease
my business or before I engage in any new line of business that is
materially different from my present business.
D.
Compliance with Laws. I will not violate any laws, regulations,
rules, orders, judgments or decrees applicable to me or my
Property, except for those which I challenge in good faith through
proper proceedings after providing adequate reserves to fully pay
the claim and its appeal should I lose. Laws include without
limitation the Federal Fair Labor Standards Act requirements for
producing goods, the federal Employee Retirement Income Security
Act of 1974’s requirements for the establishment, funding and
management of qualified deferred compensation plans for employees,
health and safety laws, environmental laws, tax laws, licensing and
permit laws. On your request, I will provide you with written
evidence that I have fully and timely paid my taxes, assessments
and other governmental charges levied or imposed on me, my income
or profits and my property. Taxes include without limitation sales
taxes, use taxes, personal property taxes, documentary stamp taxes,
recordation taxes, franchise taxes, income taxes, withholding
taxes, FICA taxes and unemployment taxes. I will adequately provide
for the payment of these taxes, assessments and other charges that
have accrued but are not yet due and payable.
E. New
Organizations. I will obtain your written consent before
organizing, merging into, or consolidating with an entity;
acquiring all or substantially all the assets of another;
materially changing the legal structure, management, ownership or
financial condition; or effecting or entering into a domestication,
conversion or interest exchange.
F. Other
Liabilities. I will not incur, assume or permit any debt evidenced
by notes, bonds or similar obligations, except: debt in existence
on the date of this Agreement and fully disclosed to you; debt
subordinated in payment to you on conditions and terms acceptable
to you; accounts payable incurred in the ordinary course of my
business and paid under customary trade terms or contested in good
faith with reserves satisfactory to you,
G. Notice
to You. I will promptly notify you of any material change in my
financial condition, of the occurrence of a default under the terms
of this Agreement or any other Loan Document, or a default by me
under any agreement between me and any third party which materially
and adversely affects my property, operations, financial condition
or business.
H. Dispose
of No Assets. Without your prior written consent or as the Loan
Documents permit, I will not sell, lease, assign, transfer, dispose
of or otherwise distribute all or substantially all of my assets to
any person other than in the ordinary course of business for the
assets’ depreciated book value or more.
I.
Insurance. I will obtain and maintain insurance with insurers, in
amounts and coverages that are acceptable to you and customary with
industry practice. This may include without limitation insurance
policies for public liability, fire, hazard and extended risk,
workers compensation, and, at your request, business interruption
and/or rent loss insurance. At your request, I will deliver to you
certified copies of all of these insurance policies, binders or
certificates. I will obtain and maintain a mortgagee or lender loss
payee endorsement for you when these endorsements are available. I
will immediately notify you of cancellation or termination of
insurance. I will require all insurance policies to provide you
with at least 10 days prior written notice to you of
cancellation or modification. I consent to you using or disclosing
information relative to any contract of insurance requir
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