Exhibit 10.9
Agreement to Fund, dated November 26, 2004.
AGREEMENT TO FUND
THIS AGREEMENT TO FUND ("Agreement") is made and entered into as of
November 26, 2004 by and between GDBA INVESTMENTS, LLLP a Colorado limited
liability limited partnership ("Lender"), and ACROSS AMERICA REAL ESTATE
DEVELOPMENT CORP., a Colorado corporation ("Borrower").
R E C I T A L S:
A. Borrower intends to acquire vacant properties to construct buildings for
sale to third-party purchasers ("TPPs").
B. Borrower has requested from Lender capital to finance Borrower's
acquisition of the vacant properties and construction of store buildings and
landscaping ("Improvements") for real estate projects where a tenant has signed
a long term lease for use of the property ("Project").
C. Lender shall commit to funding Borrower's Projects for three years from
the date of the Agreement and Borrower shall acquire the vacant properties
("Acquisition Property or Acquisition Properties") and construct the
Improvements in accordance with the approved Project plan.
D. Lender and Borrower may have entered into other funding agreements,
including, without limitation, an Agreement to Fund dated as of June 5, 2003
(collectively, "Prior Funding Agreements"), and the parties hereto wish to
terminate all Prior Funding Agreements.
NOW, THEREFORE, the parties hereto agree as follows, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged:
ARTICLE 1
LOAN
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1.1 Loan. By and subject to the terms and conditions contained in this
Agreement, Lender hereby agrees to lend Borrower up to the maximum principal sum
of $7,000,000.00 ("Principal Sum"). The amounts disbursed to Borrower shall be
used to finance Borrower's completion of the Projects. The total amount
disbursed by Lender to Borrower for each Project shall each constitute a
separate loan ("Project Loan"). Once a Project Loan is repaid, Borrower may
reborrow the funds for new projects. The proceeds of each Project Loan will be
used by Borrower to complete the Project for sale to the TPPs.
1.2 Term. The term of this Agreement is for a period of three years, ending on
November 26, 2007.
1.3 Funding of Project Loans.
a. Request for Funding. When Borrower has an executed contract to purchase
Acquisition Property and a corresponding Purchase Contract, Borrower shall give
Lender a written notice ("Preliminary Notice for Funding") which shall state the
estimated loan amount, the date of closing, and shall be accompanied by the
contract for the Acquisition Property, the Purchase Contract, and such
additional documents and information relating to the proposed funding. Within
five (5) business days after Lender's receipt of the Preliminary Notice for
Funding, Lender will confirm in writing ("Commitment Letter") to Borrower the
details of the Project Loan including the loan amount and the rate of interest
calculated at the then current market rate as determined by Lender. Borrower
will have five (5) business days after receipt of the Commitment Letter to
either accept or reject the proposed Project Loan. For each Project Loan
rejected by Borrower, Lender will have a right of first refusal as explained in
Section 4.2 below.
b. Funding of Loan Proceeds. Subject to the terms and conditions of this
Agreement, Lender shall make available to Borrower the proceeds of each Project
Loan on the closing date for the Acquisition Property. Lender shall disburse
such requested funds into Borrower's account with a federally insured bank
selected by Borrower and approved by Lender, in Lender's sole discretion.
1.4 Loan Documents. All Project Loans shall be full-recourse obligations secured
by the Borrower and by a lien upon the Projects. Borrower shall deliver to
Lender for each Project Loan, concurrently with the closing of each Acquisition
Property, the following documents and such other documents as Lender may require
("Loan Documents"), properly executed and in recordable form (if applicable) as
follows:
1. Promissory Note secured by Deed of Trust of even date herewith in the
original amount of the Project Loan;
2. Deed of Trust (strict due-on-sale) with Assignment of Rents of even
date executed by Borrower in favor of Lender as Beneficiary;
3. Settlement Statement;
4. Subordination and non-disclosure agreement; and
5. Such other documents as Lender may require.
1.5 Interest. Interest shall accrue on each of the Project Loans at the then
current market rates as set forth in the Commitment Letter for each respective
Project Loan. Borrower shall pay all Project Loans in the amounts and times
provided for in the Commitment Letter and in the corresponding promissory notes
executed in conjunction with each Project Loan.
1.6 Payments Relating to Purchase Contracts. The maturity date for each Project
Loan shall coincide with the date of closing under the related Project plan.
Amounts that are repaid under each Project Loan shall not thereafter be
available for borrowing again at a later time. However, such payment under the
Project Loans shall not reduce the Principal Sum available to Borrower.
Following the closing of Borrower's purchase of the Acquisition Property,
Borrower shall use the remainder of the loan proceeds from each Project Loan to
complete construction of the Improvements as provided for in the Purchase
Contract related to that Project Loan.
1.7 Full Repayment and Release. Upon receipt of all amounts owing and
outstanding on each Project Loan, Lender shall issue a full release of the
secured property from the lien of the deed of trust and any other Loan
Documents; provided, however, that at the time of and with respect to such
release, Borrower shall pay to Lender an amount equal to all escrow, closing and
recording costs, the costs of preparing and delivering such release and any sums
then due and payable under the Project Loan.
1.8 Authorization. Borrower shall act under this Agreement and the other Project
Loans only through such authorized representatives as Borrower shall designate
to Lender in writing from time to time. Borrower hereby designates ▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ as Borrower's authorized representative for purposes of this Agreement
and the other Project Loans, and such person shall continue as Borrower's
authorized representative until such time as Borrower shall duly authorize other
or additional persons to act on behalf of Borrower.
1.9 Borrower Financial Statements. from and after the date Lender funds the
first Project Loan, Borrower shall deliver to Lender quarterly financial
statements for Borrower within 45 days after the end of each quarter, or at such
other times as agreed in writing by Lender.
ARTICLE 2
Conditions to Funding
---------------------
2.1 General Conditions. Lender's obligation to make the disbursement for each
Project Loan is subject to the satisfaction of each of the following conditions
precedent on or before the date funding is to occur:
a. Loan Documents. Borrower shall have executed and acknowledged, if
appropriate, and delivered to Lender the Loan Documents as provided in Section
1.3 herein, in form and substance acceptable to Lender and any other documents
to be executed or delivered by or on behalf of Borrower pursuant to this
Agreement or as Lender shall otherwise reasonably require.
b. Property Documents. Lender may request any of the following documents
with respect to each property which may serve as collateral for the Project
Loan, in form and substance acceptable to Lender:
i. Any copies of easements, covenants and restrictions affecting the
property to be recorded by Borrower at or prior to the closing
date;
ii. A current, binding commitment from the title company to issue the
title policy in the amount of the Project Loan, insuring Lender
that the Deed of Trust constitutes a valid first priority lien
upon that property, subject only to such title exceptions as
Lender shall approve in its sole discretion, which such
endorsements as Lender shall reasonably require and otherwise in
such form and substance as shall be acceptable to Lender;
iii. A Phase I Environmental audit report addressed to Lender and, if
reasonably deemed necessary or appropriate by Lender based on its
review of the Phase I, a Phase II Environmental report prepared
by a registered engineer approved by Lender;
iv. A current ALTA Survey of the property, prepared by a land
surveyor registered under the laws of the subject state,
certified in favor of Lender, and otherwise in a form reasonably
acceptable to Lender;
v. True, correct and complete copies of a soils/geotechnical report
for the property prepared by an engineer and copies of all
agreements which are material to the Project;
vi. Evidence that sufficient utilities are or will be available for
construction of the Improvements and the operation of the
Improvements for their intended purposes;
vii. Appropriate written evidence that the property is and upon
construction of the Improvements will be in full compliance with
all zoning, subdivision, land use and other laws, statutes,
ordinances, codes and governmental rules and regulations;
viii. Preliminary drawings and specifications for the Improvements in
form and substance satisfactory to Lender;
ix. Lease between tenant and Borrower for specific funded project,
and
ix. Such other documents with respect to the property as are required
pursuant to this Agreement or as Lender shall otherwise
reasonably require.
c. Material Adverse Changes. No change in Borrower, the secured properties
or any other collateral, as determined by Lender in its sole discretion, shall
have occurred which would have a material adverse effect on the value of the
properties or any other collateral or Lender's right or ability to receive
payment in full of all amounts payable by Borrower to Lender under this
Agreement or any of the Project Loans;
d. No Event of Default. On the closing day of the Project Loan, no event of
default shall exist under this Agreement or any of the Loan Documents executed
in conjunction with previous Project Loans;
e. Consents and Project Approval. All licenses, permits, consents and
approval of governmental authorities necessary to enable Borrower to proceed
forward with the Projects shall have been obtained;
f. Budget. Lender shall have reviewed and approved a detailed preliminary
construction budget prepared by Borrower for the Project and Borrower's proposed
sources and uses of the loan proceeds, sufficient for Lender to confirm that the
loan proceeds shall be sufficient to pay all costs of completing each Project;
g. Insurance. Evidence, including such certificates of insurance and
binders as Lender shall require, that builder's risk, contractor's liability and
▇▇▇▇▇▇▇'▇ compensation satisfactory to Lender for each Project and issued by
insurance companies acceptable to Lender has been obtained, with loss payable
endorsement in form and substance satisfactory to Lender naming Lender as loss
payee with respect to property and casualty insurance as its interest may
appear;
h. Borrower Officer/Employee Compensation. No officer or employee of
Borrower shall receive cash and other compensation valued at more than $400,000
per year;
i. Borrower Earnings. Borrower must have positive earnings before interest,
taxes, depreciation and amortization on a year to date basis, measured
quarterly, beginning in the third quarter of 2005 and then for the term of the
applicable Project Loan;
j. Regulatory Compliance. Borrower and the Project shall be in compliance
with all rules, regulations, laws and ordinances of all local, state and federal
governmental authorities which have jurisdiction over Borrower and/or the
Property, including, without limitation, all rules and regulations of the
Securities Exchange Commission.
ARTICLE III
Construction
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3.1 Construction and Completion. Borrower shall construct the Improvements for
each individual Project in accordance with the construction schedule therefore
approved by Lender.
3.2 Force Majeure. The time within which construction of the Improvements for
each Project must be commenced and completed shall be extended for a period of
time equal to the period of any delay effecting construction which is caused by
any action or inaction which is beyond the reasonable control of Borrower;
provided, however that Borrower shall furnish Lender with written notice
satisfactory to Lender evidencing any such delay within five (5) days following
the occurrence of any such delay. In no event shall the time for completion of
the Improvements for any Project be extended for more than an additional thirty
(30) days beyond the completion date applicable thereto.
3.3. Liens and Disbursement Claims. If a mechanic's lien or claim of lien is
recorded which effects the Project or a claim for disbursement is served upon
Lender, Borrower shall, within thirty (30) days following such recording of
service or within five (5) days of Lender's demand whichever occurs first: (a)
pay and discharge the mechanic's lien or claim of lien or claim for
disbursement; (b) effect the release thereof by recording or delivering to
Lender a surety bond in sufficient form and amount; or (c) provide Lender with
other insurances which Lender deems, in its sole discretion, to be satisfactory
for the payment of such mechanic's lien or claim of lien or claim for
disbursement and for the full and continuous protection of Lender from the
effect of such lien or claim for disbursement.
3.4 Construction Responsibilities. Borrower shall construct the Improvements in
a good and workmanlike matter according to the drawings and specification and
the recommendations of any soils or engineering report approved by Lender and
free of any mechanic's lien or claims of liens for each Project. Borrower shall
comply with all applicable laws, recorded covenants and restrictions, and
requirements of all regulatory authorities having jurisdiction over the Project.
Borrower shall be solely responsible for all aspects of Borrower's business and
contacts in connection with the Projects including, without limitation, for the
quality and suitability of the drawings and specification and their compliance
with all governmental requirements, the supervision of the work of construction,
and the accuracy of all applications for payment and the proper application of
all disbursements. Lender is not obligated to supervise, inspect, or inform
Borrower or any third party of any aspect of the Projects or any other matter
referred to above.
ARTICLE IV
Additional Sources of Funding
-----------------------------
4.1 Additional Capital. Lender will, if necessary, assist Borrower with
obtaining additional capital over and above the Principal Sum, up to an
additional maximum amount of eighteen million dollars ($18,000,000) with an
institutional lender of construction financing by co-signing with Borrower.
Lender will assist with this additional financing over the three years after the
date of this Agreement to fund Projects, provided Borrower has first depleted
all of the Principal Sum available under this Agreement.
4.2. Other Sources of Funding. Borrower is free to obtain funding for its
Projects from other sources besides Lender, so long as such funding sources are
financial institutions. However, Lender shall have the right to match the loan
commitment terms of such other lending institutions by having a right of first
refusal to make such Project Loan. If Borrower obtains a commitment for a loan
from any other lender, Borrower must give Lender notice of such commitment and
all of the terms of such proposed loan ("Notice of Alternative Funding"). Lender
shall then have fifteen (15) business days after receipt of such Notice of
Alternative Funding to match the amount of such funding as well as the terms for
such proposed loan. If Lender commits to making such loan on the same terms as
the alternative source of funding, Borrower agrees to make that Project Loan
with Lender. If Lender fails to commit to making such loan within the 15
business day period, Borrower may proceed to make the loan with the financial
institution. This right of first refusal must be offered to Lender each time
Borrower has a commitment from any institutional lender for any Project.
ARTICLE V
Purchase Agreements
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5.1 Purchase Contracts. Borrower shall timely perform and comply with all
covenants, agreements, obligations and restrictions imposed upon Borrower under
the Purchase Contract and shall not do or permit to be done anything to impair
Borrower's rights and interests thereunder, or to cause any Purchase Contract to
be terminated prior to the date of Borrower's receipt of the entire purchase
price and other amounts payable by Purchaser under such Purchase Contract.
Borrower shall give Lender prompt notice of any default, breach or
non-compliance by Borrower or any other party under any Purchase Contract.
Borrower shall not amend, modify, terminate or release any right or obligation
under any Purchase Contract, shall not consent or approve any matter under
Purchase Contract for which Borrower's consent or approval is required and shall
not assign, transfer, convey, mortgage, pledge, hypothecate or convey any
interest in Borrower's rights and interest under any Purchase Contract without
Lender's prior written consent.
ARTICLE VI
Default and Remedies
--------------------
6.1 Events of Default. The occurrence of any one or more of the following,
whatever the reason therefore, shall constitute an event of default hereunder:
a. Payment. Borrower shall fail to pay any accrued interest on any other
notes within five (5) days following the date when due and payable; or any
portion of the principal amount of a note, or any amount payable by Borrower
under this Agreement or the other Loan Documents, when and as the same shall
become due and payable;
b. Other Covenants. Borrower shall fail to perform any other covenant,
agreement or obligation to be performed by Borrower under this Agreement or any
of the other Loan Documents for each Project Loan and such failure shall
continue for more than thirty (30) days after written notice thereof is given to
Borrower by Lender; provided, however, that if such failure to perform is not
reasonably capable of cure within such 30-day period, such failure to perform
shall not constitute an event of default, provided that Borrower commences to
cure such failure to perform within such 30-day period and thereafter diligently
prosecutes such cure to completion within an additional sixty (60) days.
c. Construction Use. If there is any material deviation in the work or the
construction from the drawings or specification or governmental requirements or
in the appearance or use of defective workmanship or materials in constructing
the Improvements for any Project, and Borrower fails to remedy the same to
Lender's reasonable satisfaction within thirty (30) days following Lender's
demand to do so.
d. Liens, Attachments, Condemnation. The recording of any mechanic's lien
or claim of lien against any of the Projects and the continuance of such lien or
claim of lien for sixty (60) days without discharge, satisfaction or provision
for payment being made by Borrower in a manner satisfactory to Lender or the
condemnation, seizure, or appropriation of or the occurrence of a material
uninsured casualty with respect thereto or any material portion of the Projects.
e. Dissolution. Borrower has terminated, dissolved or liquidated; or all or
substantially all of the assets of Borrower are sold or otherwise transferred
without Lender's written consent;
f. Insolvency. Borrower is the subject of an order for relief by any
bankruptcy court, or is unable and admits in writing its inability to pay its
debts as they mature, or makes an assignment for the benefit of creditors; or
Borrower applies for or consents to the appointment of any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar officer for
Borrower.
g. Material Adverse Change. There shall occur a change in the financial
condition of Borrower as of the date of this Agreement, and such change will
have an adverse effect upon the right or ability of Lender to receive payment in
full or all amounts payable by Borrower to Lender under this Agreement or any of
Project Loans, and Borrower shall fail to present evidence satisfactory to
Lender that such condition has been remedied within thirty (30) days after
written notice by Lender to Borrower.
h. Loss of Priority. The failure at any time of any of the deeds of trust
to be valid first priority liens upon the applicable secured properties or any
portion thereof under any Project Loan, other than as a result of the release of
the deeds of trust pursuant to this Agreement.
i. Other Default. The occurrence of any other event, circumstance of other
condition that constitutes a default, or event of default under any of the
Project Loans; or the occurrence of any monetary default or event of default or
any other non-monetary default resulting in acceleration with respect to the
indebtedness or obligations of Borrower.
6.2 Remedies Upon Default. Upon the occurrence of any event of default, Lender
may, at its option, do any or all of the following:
a. Acceleration. Declare all amounts owing under any or all of the Project
Loans, this Agreement, and the other Loan Documents, together with interest
thereon, to be immediately due and payable, regardless of any other specified
maturity date, without notice of default, presentment or demand for payment,
protest or notice of non-payment or dishonor or other notices and demands of any
kind or character, and without the necessity of prior recourse to any security;
b. Termination. Terminate Lender's obligations under the Agreement and all
rights of Borrower's and obligations of Lender under the Loan Documents for each
Project Loan;
c. Disbursement to Third Parties. Upon the occurrence of event of default
occasioned by Borrower's failure to pay money to a third party as required by
this Agreement, Lender may, but shall not be obligated to, make such payments
from Project Loan proceeds; and
d. Other Remedies. Exercise any and all of Lender's other rights and
remedies under the Loan Documents for each or all of the Project Loans,
including, but not limited to, the right to take possession of and foreclose on
any security or deeds of trust and exercise any other rights with respect to any
security, whether under the Loan Documents or any other agreement or as provided
by applicable laws, all in such order and such manner as Lender in its sole
discretion may determine.
6.3 Cumulative Remedies. No Waiver. All remedies of Lender provided for herein
are cumulative and shall be in addition to any and all other rights and remedies
provided in this Agreement, other Loan Documents or provided by applicable laws
from time to time. The exercise of any right or remedy by Lender hereunder shall
not in any way constitute a cure or waiver of any event of default hereunder, or
under any of the Loan Documents, nor invalidate any notice of default or any act
pursuant to such notice, nor prejudice Lender in the exercise of any rights
hereunder or under the other Loan Documents. Any waiver of any breach, of any
covenant, term or condition contained herein shall not be construed as a waiver
of any subsequent breach of the same covenant term or condition.
ARTICLE VII
Miscellaneous
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7.1 Non-liability of Lender. The relationship of Borrower and Lender under the
Project Loans and related Loan Documents is and shall at all times remain solely
that of Borrower and Lender, and Lender neither undertakes nor assumes any
responsibility or duty to Borrower to any other person with respect to the
Projects and notwithstanding any other provision of the Loan Documents; (1)
Lender is not and shall not be construed as a partner, joint venturer,
alter-ego, manager or other business associate or participant of any kind of
Borrower and Lender does not intend to ever assume such status; and (2) Lender
does not intend to ever assume any responsibility to any person for the quality,
stability, safety or condition of the Projects; and (3) Lender shall not be
deemed responsible for or as a participant in any acts, omissions or decisions
of the Borrower.
7.2 No Third Party Beneficiaries. This Agreement is made for the purpose of
setting forth certain rights and obligations of Borrower and Lender in
connection with the Project Loans. It is made for the sole protection of
Borrower and Lender, and Lender's successor and assigns. No other person shall
have any rights of any nature hereunder or by reason hereof.
7.3 Indemnity. Borrower hereby agrees to indemnify, defend and hold Lender and
its directors, officers, agents and employees harmless from, any and all
liabilities and costs which Lender or any other person may suffer or incur as a
direct or indirect consequence of Lender's making of the Project Loans.
Borrower's duty to defend and indemnify Lender shall survive the release and
cancellation of all the notes and the deeds of trust executed in conjunction
with the Project Loans.
7.4 Binding Effect; Assignment. This Agreement shall be binding upon and shall
inure to the benefit of Borrower and Lender and their respective successors and
assigns, except that Borrower may not delegate or assign any of its duties under
this Agreement or any of the other Loan Documents of the Loan Projects without
the prior written consent of Lender. Borrower recognizes that this Agreement
does not provide for an ordinary loan and that Lender would not make the Loan
except in reliance upon Borrower's expertise and reputation, Lender's knowledge
and ownership interest in Borrower, and Lender's understanding that this
Agreement is more in the nature of an agreement involving personal services than
in a standard loan where Lender would rely on security which already exists.
7.5 Tax Service. Lender is authorized to secure, at Borrower's expense, a tax
service contract which shall provide tax information on the Projects to Lender
for the term of each applicable Project Loan.
7.6. Notices. All notices and other communications provided for hereunder and
under any other Loan Documents must be in writing and must be personally
delivered, mailed by U.S. Certified Mail, Return Receipt Requested, postage
pre-paid, sent by a nationally recognized private courier service or transmitted
by telecopier (provided that a copy is concurrently deposited for delivery via
U.S. Mail), delivered or addressed to the appropriate party at the respective
address set forth below:
If to Borrower: Across America Real Estate Development Corp.
c/o ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Lender: GDBA INVESTMENTS, LLLP
▇▇▇▇▇ ▇▇▇▇▇▇, Manager
GDBA Investments, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇
▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may change its address by giving written notice to the other party in
accordance with this Section.
7.7 Governing Law. This Agreement and the other Loan Documents of each Project
Loan shall be governed by, construed and enforced in accordance with the laws of
the State of Colorado.
7.8 Severability of Provisions. Any provision in any Loan Document that is held
to be inoperable, unenforceable or invalid shall be inoperable, unenforceable or
invalid without effecting the remaining provisions, and to this end, the
provisions of all Loan Documents are declared to be severable.
7.9 Construction of Agreement. Both Borrower and Lender have cooperated in
drafting and negotiating this Agreement, and any ambiguities contained herein
shall not be construed against either party.
7.10 Impounding of Advances. Unless Lender is provided with indemnification or
other insurance satisfactory to Lender (in Lender's sole discretion), Lender may
impound such advances under any of the Project Loans as may be required to
enable Lender to comply with the provisions of Colorado Revised Statute Section
▇▇-▇▇-▇▇▇, as amended.
7.11 Prior Funding Agreements. All prior Funding Agreements between the parties
are hereby terminated.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed as of the date first above written.
BORROWER: LENDER:
ACROSS AMERICA REAL ESTATE GDBA INVESTMENTS, LLLP, a Colorado
DEVELOPMENT CORP., a Colorado limited liability limited partnership
corporation
By: signed By: Signed
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President G. ▇▇▇▇▇ ▇▇▇▇▇▇▇,