Line of Credit and Security Agreement - Red Rock Investments Co. and VCG Holding Corp.
LINE OF CREDIT AND SECURITY AGREEMENT
THIS AGREEMENT is entered into effective as of March 7, 2003, by and
between RED ROCK INVESTMENTS CO, a Colorado General Partnership ("Red Rock"),
and VCG HOLDING CORP., a Colorado corporation ("Borrower").
RECITALS
WHEREAS, Red Rock desires to provide to Borrower, and Borrower desires
to obtain from Red Rock, a line of credit with a maximum loan amount of One
Million Two Hundred Thousand and 00/100 Dollars ($1,200,000.00) (the "Line of
Credit"), on certain terms and conditions as set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:
1. Commitment. Subject to and in accordance with the provisions of
this Agreement, Red Rock agrees to make disbursements under the Line of Credit,
and Borrower may draw upon and borrow, in the manner and upon the terms and
conditions expressed in this Agreement, amounts that shall not exceed in the
aggregate, at any one time outstanding, One Million Two Hundred Thousand and
00/100 Dollars ($1,200,000.00) (the "Commitment Amount"). The Line of Credit
shall be a revolving line of credit, against which disbursements may be made to
Borrower, repaid by Borrower and additional disbursements made to Borrower,
subject to the limitations contained in this Agreement; provided, that Red Rock
shall have no obligation to make any disbursement (i) that would cause the
outstanding principal balance of the Line of Credit plus all outstanding
principal and any accrued but unpaid interest to exceed the Commitment Amount or
(ii) if there is an Event of Default or a Default (as defined below). The Line
of Credit shall bear interest on the outstanding principal balance at a simple
annual rate of six and one half percent (6.5%), which interest shall be payable
monthly, on the third day of each month, beginning on April 7, 2003. If not
sooner paid, all outstanding principal, accrued but unpaid interest and other
outstanding sums due under this Agreement shall be paid in full on February 26,
2004 (the "Maturity Date").
2. Advances. Advances under the Line of Credit will be made by Red
Rock upon receipt by Red Rock of at least five (5) business days' prior written
notice setting forth the amount of the advance.
3. The Note. Borrower's obligation to pay the principal of and
interest on the Line of Credit shall be evidenced by a Promissory Note (the
"Note"), substantially in the form attached hereto as Exhibit A, which shall (i)
be duly executed and delivered by Borrower, (ii) be dated as of the date hereof,
(iii) be in the stated principal amount of the Line of Credit, (iv) mature on
the Maturity Date, (v) bear interest as provided in the Note, and (vi) be
governed by this Agreement.
/s/ (VCG) /s/ (Red Rock)
--------- --------------
(VCG) (Red Rock)
Page 1 of 6
<PAGE>
4. a) Collateral. In consideration of the Line of Credit, upon
execution of this Agreement, Borrower will grant to Red Rock a deed of trust
("Deed of Trust") on that certain property located at 1902 Black Canyon Freeway,
Phoenix, Arizona ("Property"), which Deed of Trust shall be subordinate to the
deed of trust being granted by Borrower to the seller of the Property in
connection with Borrower's purchase of the Property, as collateral
("Collateral"), to secure the payment, performance and observance of all
indebtedness, obligations and liabilities of Borrower to Red Rock under this
Agreement and the Note; b) personal guaranty from CEO Troy H. Lowrie; and c) a
term life insurance policy on the life of Troy H. Lowrie in the amount of
$1,200,000 and the Red Rock as beneficiary.
5. Common Stock; Subscription Agreement and Investment Letter. In
partial consideration for the execution of this Agreement by Red Rock, upon
execution of this Agreement, Borrower will deliver to Red Rock a stock
certificate for 40,000 shares of the Borrower's $.0001 par value common stock
(the "Shares"); provided, however, that prior to delivery of such stock
certificate, Red Rock will deliver to the Borrower a completed and fully
executed Subscription Agreement and Investment Letter, in the form attached
hereto as Exhibit B, which shall be subject to acceptance by the Borrower. The
Shares shall be "restricted" securities as that term is defined under Rule 144
under the Securities Act of 1933, as amended (the "Act"). The stock certificate
evidencing the Shares will contain a restrictive legend and the Company will
cause its stock transfer records to note such restrictions.
6. Registration Rights.
If the Company, at any time prior to one year anniversary of the
effective date of this Agreement, proposes to file a registration statement to
register any of its securities under the Act for sale to the public, whether for
its own account or for the account of other security holders or both, except
with respect to registration statements on Forms S-4, S-8 or any other form not
available for registering the Shares for sale to the public, and provided the
Shares are not otherwise registered for resale pursuant to a pending or
effective registration statement, the Company shall give Red Rock or any
subsequent record holder of the Shares (the "Holder") at least 30 days' prior
written notice of its intention so to do. Upon the written request of the Holder
received by the Company within 10 days after the Company's giving of any such
notice, the Company shall cause the Shares as to which registration shall have
been so requested to be included for registration in the registration statement.
In the event that any such registration shall be, in whole or in part,
an underwritten public offering of the Company, the number of Shares to be
included in such an underwriting may be reduced by the managing underwriter if,
and to the extent that, the Company and the underwriter shall reasonably be of
the opinion that such inclusion would adversely affect the marketing of the
securities to be sold by the Company therein; provided, however, that the
Company shall notify the Holder in writing of any such reduction.
The Company may withdraw, delay or suffer a delay of any registration
statement referred to in this Section without thereby incurring any liability to
the Holder.
/s/ (VCG) /s/ (Red Rock)
--------- --------------
(VCG) (Red Rock)
Page 2 of 6
<PAGE>
It shall be a condition precedent to the registration obligations of the
Company that the Holder furnish to the Company such information as shall be
reasonably required to effect the registration of such Shares and execute such
documents in connection with such registration as the Company may reasonably
request, and the Holder must cooperate with the Company as reasonably requested
by the Company in connection with the preparation and filing of a registration
statement contemplated hereunder.
7. Default. The occurrence of any of the following events shall
constitute an "Event of Default" hereunder:
a. The non-payment of any interest due and owing to Red
Rock under the Line of Credit and such failure to make payment shall continue
for a period of five (5) days or longer from the due date.
b. Violation by Borrower of any covenant or obligation
contained in this Agreement or the Note, or breach of any representation or
warranty contained herein or in the Note; or
c. Borrower (i) admits in writing its inability to pay its
debts as they become due; (ii) files a petition under any chapter of the Federal
Bankruptcy Code or similar law, state or federal, not or hereafter existing; or
(iii) is adjudged a bankrupt or insolvent.
Upon occurrence of an Event of Default, Red Rock shall notify
Borrower in writing. If the Event of Default is not cured within ten business
(10) days after the giving of such notice of default, Borrower shall be deemed
to be in default under this Agreement (a "Default").
8. Default Rate; Late Charges; Acceleration. Upon Default, Red Rock
shall have the right to collect interest on the outstanding principal balance on
the Line of Credit at a rate of twelve percent (12%) per annum (the "Default
Rate").
9. Enforcement of Collateral. In addition to any other remedies
which Red Rock has hereunder or by law, upon Default, Red Rock shall have the
right to enforce its rights in the Collateral by giving notice of the Default to
Borrower and foreclosing on the Collateral.
10. Cumulative Remedies. All remedies of Red Rock provided for
herein are cumulative and shall be in addition to all other rights and remedies
provided by law. The exercise of any right or remedy by Red Rock hereunder shall
not in any way constitute a cure or waiver of default hereunder or invalidate
any act done pursuant to any notice of default, or prejudice Red Rock in the
exercise of any of its rights hereunder unless, in the exercise of its rights,
Red Rock realizes all amounts owed to it under the Line of Credit.
11. Payment and Renewal of the Line of Credit; Collateral. Borrower
shall have the right to prepay the Line of Credit, in whole or in part, in
accordance with the terms of the Note. Upon full payment of all amounts due and
owing under the Line of Credit, and Borrower
/s/ (VCG) /s/ (Red Rock)
--------- --------------
(VCG) (Red Rock)
Page 3 of 6
<PAGE>
giving written notice to Red Rock, Red Rock shall immediately deliver the Deed
of Trust to Borrower.
In the event of a full prepayment of all amounts due and owing under the Line of
Credit, Borrower shall have the right before the Maturity Date to renew the Line
of Credit upon at least five (5) business days' advance written notice to Red
Rock; provided, however, that prior to such renewal Borrower shall deliver to
Red Rock the Deed of Trust, or substitute Collateral which is acceptable to Red
Rock.
12. Representations and Warranties of the Borrower. Borrower hereby
represents and warrants as follows:
a. Organization; Authority to Enter into Agreement.
Borrower is a corporation, duly formed and validly in existence and in good
standing under the laws of the State of Colorado. Borrower has full power and
authority to enter into this Agreement and to execute and to carry out the
provisions of this Agreement.
b. No Consents. The execution, delivery and performance by
Borrower of this Agreement does not require consent, approval, authorization or
license of any governmental authority or a third party.
13. Restrictions on Sale or Further Encumbrance. Borrower agrees not
to sell, assign, exchange, or further encumber the Collateral without prior
written consent of Red Rock, which consent shall not be unreasonably withheld.
14. Expenses, Fees and Costs. In the event of any litigation between
the parties to declare or enforce any provision of this Agreement, the
prevailing party shall be entitled to recover from the losing party, in addition
to any other recovery and costs, reasonable expenses, attorney's fees, and costs
associated with such litigation, in both the trial and in all appellate courts.
15. Waiver. No waiver by Red Rock of any default shall operate as a
waiver of any other default or of the same default on a future occasion.
16. Assignment. The terms hereof shall be binding upon and shall
inure to the benefit of the parties hereto and their personal representatives,
successors and assigns; provided, however, that the parties may not assign their
rights or delegate their duties and obligations hereunder without the prior
written consent of the other party, which consent shall not be unreasonably
withheld.
17. Notices. Any notice required or permitted to be given hereunder
shall be in writing and will be deemed received (a) on the date of receipted
delivery by a courier service or (b) on the fifth business day after mailing, by
registered or certified United States mail, postage prepaid, to the appropriate
party at its address set forth below:
/s/ (VCG) /s/ (Red Rock)
--------- --------------
(VCG) (Red Rock)
Page 4 of 6
<PAGE>
If to Red Rock:
John H. Rosasco
Red Rock Investments Co
731 Clarkson Street
Denver, Colorado 80218
If to BORROWER:
VCG Holding Corp.
1601 W. Evans Avenue, Suite 200
Denver, Colorado 80223
Attn: Troy Lowrie
With a copy to:
A. Thomas Tenenbaum, Esq.
Tenenbaum & Kreye LLP
Plaza Tower One, Suite 2025
6400 S. Fiddler's Green Circle
Englewood, Colorado 80111
18. Amendments. No amendment, modification or termination of any
provisions of this Agreement shall in any event be effective unless the same
shall be in writing and signed by all parties hereto.
19. Survival of Representations and Warranties. All agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement and continue in full force and effect until the
obligations of Borrower hereunder evidenced by the Note have been fully paid and
satisfied.
20. Entire Agreement; Severability. This Agreement, together will
all Exhibits hereto, constitutes the entire agreement of the parties hereto with
respect to the subject matter hereof, and supersedes all prior agreements and
understandings. In the event that any clause or provision of this Agreement
shall be determined to be invalid, illegal or unenforceable, such clause or
provision may be severed or modified to the extent necessary, and as severed
and/or modified, this Agreement shall remain in full force and effect.
/s/ (VCG) /s/ (Red Rock)
--------- --------------
(VCG) (Red Rock)
Page 5 of 6
<PAGE>
21. Governing Law; Jurisdiction and Venue. This Agreement and other
documents delivered pursuant hereto and the legal relations between the parties
shall be governed and construed in accordance with the law of the State of
Colorado. Any dispute or litigation with respect to the representations,
warranties, terms and conditions of this Agreement, or any other matter between
the parties, shall be litigated in the Colorado District Court in and for the
City and County of Denver, Colorado and the parties hereby expressly consent to
the exclusive jurisdiction and venue in said Colorado District Court.
22. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
RED ROCK INVESTMENTS CO VCG HOLDING CORP.
By: /s/ John H. Rosasco By: /s/ Troy H. Lowrie
----------------------- ---------------------
John H. Rosasco Name: Troy H. Lowrie
General Partner Title: CEO
Date: Date:
----------------------- ---------------------
/s/ (VCG) /s/ (Red Rock)
--------- --------------
(VCG) (Red Rock)
Page 6 of 6