FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.11
FIRST
AMENDMENT TO
This
First Amendment to Credit ("Amendment"),
executed on August 3, 2006
to
be effective as of April 26,2006, is by and among ACROSS AMERICA REAL
ESTATE
CORP., a Colorado corporation (formerly known as "Across America Real
Estate
Development Corp.") ("Company"),
GDBA
INVESTMENTS, LLLP, a Colorado limited liability limited partnership,
G. XXXXX
XXXXXXX, and XXXXX X. XXXXXXX (collectively "Guarantor")
and
VECTRA BANK COLORADO, NATIONAL ASSOCIATION ("Lender").
RECITALS:
A.
Company and Lender entered into that certain Credit Agreement, dated
April 25,
2005 ("Original Credit Agreement") relating to a credit facility for
individual
development and construction loans to be made to the Company and its
operating
subsidiaries, which in the aggregate will not exceed $10,000,000.00
("Loans").
B.
The
credit facility described in the Original Credit Agreement expired
on April 25,
2006. Company has requested that Lender extend the credit facility
one year.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT:
1. Definitions
Except
as defined herein, the capitalized terms shall have the same meanings
as set
forth in the Original Credit Agreement. Any reference to "Agreement"
shall mean
the Original Credit Agreement as amended in this Amendment, and as
may be
amended or modified from time to time. All references in any documents
to any
Notes, Security Documents or any of the Loan Documents shall refer
to the Loan,
Notes, Security Documents and Loan Documents, as amended pursuant to
this
Amendment.
2. Representations
and Warranties.
Company
hereby warrants and represents to the Lender that as of the date of
this
Amendment:
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(a)
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There
has been no material adverse change in the financial condition
of Company
or any other person whose financial statement has been delivered
to Lender
in connection with the Loans from the most recent financial
statements
received by Lender.
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(b)
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Each
and all representations and warranties of Company in the
Loan Documents
are accurate on the date hereof.
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(c)
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Company
has no claims, counterclaims, defenses, or set-offs with
respect to the
Loans or the Loan Documents.
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(d)
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The
Loan Documents are the legal, valid, and binding obligations
of Company,
enforceable against Company in accordance with their
terms.
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(e)
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Company
is validly existing under the laws of the state of its formation
or
organization and has the requisite power and authority to
execute and
deliver this Amendment and to perform the Loan Documents
as modified
herein. The execution and delivery of this Amendment and
the performance
of the Loan Documents as modified herein have been duly authorized
by all
requisite action by or on behalf of
Company.
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This
Amendment has been duly executed and delivered on behalf of
Company.
3. Credit
Agreement.
The
following sections and subsections of the Credit Agreement shall be,
and hereby
are, amended as follows:
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(a)
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Section
1. The definition of Debt Service Coverage Ratio shall hereby
be amended
and restated as follows:
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"Debt
Service Coverage Ratio" means,
for any period, the ratio calculated by dividing the (i) proforma NO1
of the
Approved Lease before interest expense, capitalized interest, taxes,
amortization and depreciation for such period by (ii) the amount equal
to the
principal and interest payments that would be due and payable during
a one year
period based upon the amount necessary to fully amortize a hypothetical
loan in
an amount equal to the Maximum Project Loan Amount, using an interest
rate equal
to 2.20% plus the three-month average Treasury rate (for treasuries
having a ten
(10) year maturity) as of the last day of the most recent calendar
month in
equal installments over an assumed amortization period of 25 years"
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(b)
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Section
2.2 h. shall hereby be amended and restated as
follows:
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"h.
Debt
Service Coverage Ratio. The Approved Lease must reflect a pro forma
NOI, as
determined by Lender, that is in compliance with the Debt Service Coverage
Ratio. For a lease to be approved, the Debt Service Coverage Ratio
must equal or
exceed 1.25 to 1 ."
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(c)
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Section
2.3 e. shall hereby be amended and restated as
follows:
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"e.
The
rental rate of the Lease must reflect a proforma NO1 that will, upon
completion,
comply with the Debt Service Coverage Ratio. For a lease to be approved,
the
Debt Service Coverage Ratio must equal or exceed 1.25 to 1."
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(d)
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Section
2.5 shall be amended and restated as
follows:
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"2.5 Expiration
of Facility. This facility shall expire on July 21, 2007, at which
time Lender
shall have no obligation to review or approve any additional Projects,
but the
Loan Documents shall remain in full force and effect until paid in
full."
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(e)
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The
following Section 13.19 is hereby added to the Credit Agreement:
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"1
3.19
Arbitration Disclosures.
1.
ARBITRATION IS FINAL AND BINDING ON THE PARTIES AND SUBJECT TO ONLY
VERY LIMITED
REVIEW BY A COURT.
2.
IN
ARBITRATION THE PARTIES ARE WAIVING THEIR RIGHT TO LITIGATE IN COURT,
INCLUDING
THEIR RIGHT TO A JURY TRIAL.
3.
DISCOVERY IN ARBITRATION IS MORE LIMITED THAN DISCOVERY IN COURT.
4.
ARBITRATORS ARE NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL REASONING
IN
THEIR AWARDS. THE RIGHT TO APPEAL OR TO SEEK MODIFICATION OF ARBITRATORS'
RULINGS IS VERY LIMITED.
5.
A
PANEL OF ARBITRATORS MIGHT INCLUDE AN ARBITRATOR WHO IS OR WAS AFFILIATED
WITH
THE BANKING INDUSTRY.
6.
ARBITRATION WILL APPLY TO ALL DISPUTES BETWEEN THE PARTIES, NOT JUST
THOSE
CONCERNING THIS AGREEMENT.
7.
IF YOU
HAVE QUESTIONS ABOUT ARBITRATION, CONSULT YOUR ATTORNEY OR THE AMERICAN
ARBITRATION ASSOCIATION.
Any
claim
or controversy ("Dispute") between or among the parties and their employees,
agents, affiliates, and assigns, including, but not limited to, Disputes
arising
out of or relating to this agreement, this arbitration provision ("arbitration
clause"), or any related agreements or instruments relating hereto
or delivered
in connection herewith ("Related Agreements"), and including, but not
limited
to, a Dispute based on or arising from an alleged tort, shall at the
request of
any party be resolved by binding arbitration in accordance with the
applicable
arbitration rules of the American Arbitration Association (the "Administrator").
The provisions of this arbitration clause shall survive any termination,
amendment, or expiration of this agreement or Related Agreements. The
provisions
of this arbitration clause shall supersede any prior arbitration agreement
between or among the parties.
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The
arbitration proceedings shall be conducted in a city mutually agreed
by the
parties. Absent such an agreement, arbitration will be conducted in
Denver,
Colorado or such other place as may be determined by the Administrator.
The
Administrator and the arbitrator(s) shall have the authority to the
extent
practicable to take any action to require the arbitration proceeding
to be
completed and the arbitrator(s)' award issued within 150 days of the
filing of
the Dispute with the Administrator. The arbitrator(s) shall have the
authority
to impose sanctions on any party that fails to comply with time periods
imposed
by the Administrator or the arbitrator(s), including the sanction of
summarily
dismissing any Dispute or defense with prejudice. The arbitrator(s)
shall have
the authority to resolve any Dispute regarding the terms of this agreement,
this
arbitration clause, or Related Agreements, including any claim or controversy
regarding the arbitrability of any Dispute. All limitations periods
applicable
to any Dispute or defense, whether by statute or agreement, shall apply
to any
arbitration proceeding hereunder and the arbitrator(s) shall have the
authority
to decide whether any Dispute or defense is barred by a limitations
period and,
if so, to summarily enter an award dismissing any Dispute or defense
on that
basis. The doctrines of compulsory counterclaim, res judicata, and
collateral
estoppel shall apply to any arbitration proceeding hereunder so that
a party
must slate as a counterclaim in the arbitration proceeding any claim
or
controversy which arises out of the transaction or occurrence that
is the
subject matter of the Dispute. The arbitrator(s) may in the arbitrator(s)'
discretion and at the request of any party: (1) consolidate in a single
arbitration proceeding any other claim arising out of the same transaction
involving another party to that transaction that is bound by an arbitration
clause with Lender, such as borrowers, guarantors, sureties, and owners
of
collateral; and (2) consolidate or administer multiple arbitration
claims or
controversies as a class action in accordance with the provisions of
Rule 23 of
the Federal Rules of Civil Procedure.
The
arbitrator(s) shall be selected in accordance with the rules of the
Administrator from panels maintained by the Administrator. A single
arbitrator
shall have expertise in the subject matter of the Dispute. Where three
arbitrators conduct an arbitration proceeding, the Dispute shall be
decided by a
majority vote of the three arbitrators, at least one of whom must have
expertise
in the subject matter of the Dispute and at least one of whom must
be a
practicing attorney. The arbitrator(s) shall award to the prevailing
party
recovery of all costs and fees (including attorneys' fees and costs,
arbitration
administration fees and costs, and arbitrator(s)' fees). The arbitrator(s),
either during the pendency of the arbitration proceeding or as part
of the
arbitration award, also may grant provisional or ancillary remedies
including
but not limited to an award of injunctive relief, foreclosure, sequestration,
attachment, replevin, garnishment, or the appointment of a
receiver.
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Judgment
upon an arbitration award may be entered in any court having jurisdiction,
subject to the following limitation: the arbitration award is binding
upon the
parties only if the amount does not exceed Four Million Dollars ($4,000,000);
if
the award exceeds that limit, any party may demand the right to a court
trial.
Such a demand must be filed with the Administrator within 30 days following
the
date of the arbitration award; if such a demand is not made within
that time
period, the amount of the arbitration award shall be binding. The computation
of
the total amount of an arbitration award shall include amounts awarded
for
attorneys' fees and costs, arbitration administration fees and costs,
and
arbitrator(s)' fees.
No
provision of this arbitration clause, nor the exercise of any rights
hereunder,
shall limit the right of any party to: (1) judicially or nonjudicially
foreclose
against any real or personal property collateral or other security;
(2) exercise
self-help remedies, including but not limited to repossession and setoff
rights;
or (3) obtain from a court having jurisdiction thereover any provisional
or
ancillary remedies including but not limited to injunctive relief,
foreclosure,
sequestration, attachment, replevin, garnishment, or the appointment
of a
receiver. Such rights can be exercised at any time, before or after
initiation
of an arbitration proceeding, except to the extent such action is contrary
to
the arbitration award. The exercise of such rights shall not constitute
a waiver
of the right to submit any Dispute to arbitration, and any claim or
controversy
related to the exercise of such rights shall be a Dispute to be resolved
under
the provisions of this arbitration clause. Any party may initiate arbitration
with the Administrator. If any party desires to arbitrate a Dispute
asserted
against such party in a complaint, counterclaim, crossclaim, or third-party
complaint thereto, or in an answer or other reply to any such pleading,
such
party must make an appropriate motion to the trial court seeking to
compel
arbitration, which motion must be filed with the court within 45 days
of service
of the pleading, or amendment thereto, setting forth such Dispute.
If
arbitration is compelled after commencement of litigation of a Dispute,
the
party obtaining an order compelling arbitration shall commence arbitration
and
pay the Administrator's filing fees and costs within 45 days of entry
of such
order. Failure to do so shall constitute an agreement to proceed with
litigation
and waiver of the right to arbitrate. In any arbitration commenced
by a consumer
regarding a consumer Dispute, Vectra Bank Colorado, National Association
shall
pay one half of the Administrator's filing fee, up to $250.
Notwithstanding
the applicability of any other law to this agreement, the arbitration
clause, or
Related Agreements between or among the parties, the Federal Arbitration
Act, 9
U.S.C. 5
1
m.,
shall apply to the construction and interpretation of this arbitration
clause.
If any provision of this arbitration clause should be determined to
be
unenforceable, all
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other
provisions of this arbitration clause shall remain in full force and
effect."
4. Conditions
Precedent.
The
obligations of the Lender under this Amendment and under the foregoing
amendments to the Original Credit Agreement, the Notes and other Loan
Documents
are subject to the satisfaction of the following conditions precedent
(all of
which shall he satisfactory to the Lender in form and substance in
the Lender's
sole and absolute discretion):
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(a)
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Company
shall have executed and delivered this
Amendment;
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(b)
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Company
shall have paid all accrued and unpaid interest due on the
Notes;
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(c)
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The
Guarantors shall have executed and delivered to the Lender
a Consent of
Guarantors consenting to the amendments contemplated by this
Amendment,
substantially in the form of Exhibit A
hereto;
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(d)
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Company
and each Guarantor shall have provided current financial
statements to the
Lender;
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(e)
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Company
and each Guarantor that as other than a natural person shall
have
delivered borrowing resolutions in a form acceptable to Lender
authorizing
the execution of the documents set forth
herein;
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(f)
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Company
shall have paid the Lender an additional loan fee in the
amount of
$-0.;
and
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(g)
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Company
shall have paid all of the expenses incurred in connection
with the
transactions contemplated by this Amendment, including, without
limitation, all the fees and disbursements of the Lender's
attorneys and
their staff, the cost of obtaining the endorsement to the
mortgagee's
title insurance policy and all recording and filing fees,
charges and
expenses.
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If
Company fails to comply with all of the conditions set forth above,
all of the
Lender's obligations under this Amendment shall be null and void and
of no force
and effect whatsoever.
5. Status
of Obligations: Release of Claims
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(a)
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Except
as specified in this Amendment, the provisions of the Original
Credit
Agreement, the Notes and Security Documents shall remain
in full force and
effect, and if there is a conflict between the terns of the
Original
Credit Agreement, this Amendment and the Notes or the Loan
Documents, the
terms of this Amendment shall
control.
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(b)
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Company
does hereby ratify, confirm and acknowledge that the Loan
Documents are
valid and binding obligations of the Company, enforceable
against the same
in accordance with their terms.
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(c)
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Company,
for itself, its heirs, administrators, executors, personal
representatives, successors and assigns, and all persons
claiming by,
through or under the Company, does hereby fully and forever
release and
discharge the Lender, its affiliates, all its past and present
employees,
officers, directors and agents and its successors and assigns
from any and
all claims, demands, obligations, actions, liabilities, losses,
costs,
expenses and damages of every kind and nature whatsoever,
including,
without limitation, attorney's fees, in law or in equity,
whether known or
unknown, that Company or any other person acting by, through
or under
Company may now have, or claim at any future time to have,
based in whole
or in part upon any act or omission to the date hereof, without
regard to
present, actual knowledge of acts or omissions, arising from
or based upon
or in any way related to the Loans or the making or administration
of the
Loans.
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6. Additional
Documents.
Company
shall execute and deliver to the Lender at any time and from time to
time such
additional amendments to the Original Credit Agreement, the Notes and
the
Security Documents as the Lender may request to confirm and carry out
the
transactions contemplated hereby or to confirm, correct and clarify
the security
for the Loan.
7.
Miscellaneous.
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(a)
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This
Amendment shall be governed by and construed under the laws
of the State
of Colorado and shall be binding upon and inure to the benefit
of the
parties hereto and their heirs, administrators, executors,
personal
representatives, successors and
assigns.
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(b)
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This
Amendment may be executed in two or more counterparts, each
of which shall
be deemed an original and all of which together shall constitute
one
instrument.
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(c)
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This
Amendment and all documents to be executed and delivered
hereunder may be
delivered in the form of a facsimile copy, subsequently confirmed
by
delivery of the originally executed
document.
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(d)
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Time
is of the essence hereof with respect to the dates, terms
and conditions
of this Amendment and the documents to be delivered pursuant
hereto.
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(e)
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This
Amendment constitutes the entire agreement between Company
and the Lender
concerning the subject matter of this Amendment. This Amendment
may not be
amended or modified orally, but only by a written agreement
executed by
Company and the Lender and designated as an amendment or
modification of
this Amendment.
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If
any
provision of this Amendment shall be held invalid, illegal or unenforceable,
the
validity, legality and enforceability of the remaining provisions of
this
Amendment shall not be impaired thereby.
IN
WITNESS WHEREOF, the
parties hereto have executed this Amendment as of the day and year
first above
written.
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"Lender"
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VECTRA
BANK COLORADO, NATIONAL ASSOCIATION
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By:
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/s/___________________________________
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Vice
President
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"Company"
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A
Colorado corporation
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By:
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/s/___________________________________
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President
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"Guarantor"
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GDBA
INVESTMENTS, LLLP,
a
Colorado limited liability limited partnership
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By:
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/s/___________________________________
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G.
Xxxxx Xxxxxxx, general partner
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G.
Xxxxx Xxxxxxx, individually
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Xxxxx
X. Xxxxxxx, individually
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-8-
EXHIBIT
A
CONSENT
OF GUARANTOR
In
consideration of the transactions consented to hereby, and for other
good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned ("Guarantor") as the guarantor under
the
Unconditional Continuing Guaranty of Payment, dated April 25,
2005, given
by
the undersigned to Vectra Bank Colorado, National Association (the
"Lender") to
guarantee certain obligations of Across America Real Estate Corp. (formerly
known as "Across America Real Estate Development Corp.") ("Company"),
a Colorado
corporation, to the Lender, hereby:
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(a)
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consents
to the extension of the credit facility and other transactions
set forth
in and contemplated by the First Amendment to Credit Agreement,
dated as
of April 26,2006,
between
the Lender and Company;
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(b)
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consents
to any and all prior extensions, amendments and renewals
of the Loans and
the documents governing, evidencing and securing the
Loans.
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(c)
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agrees
that the Guaranty and all obligations of the Guarantor thereunder
remain
in full force and effect, notwithstanding the modifications
described in
the First Amendment to Credit Agreement; and (d) forever
and
unconditionally releases and discharges, for himself, his
heirs,
administrators, executors, personal representatives, successors
and
assigns, and all persons claiming by, through or under him,
the Lender,
its affiliates, all its past and present employees, officers,
directors,
agents and its successors and assigns from any and all claims,
demands,
obligations, actions, liabilities, losses, costs, expenses
and damages of
every kind and nature whatsoever, including, without limitation,
attorneys' fees, in law or in equity, whether known or unknown,
that the
undersigned or any other person acting by, through or under
him may now
have, or claim at any future time to have, based in whole
or in part upon
any act or omission to the date herein, without regard to
present, actual
knowledge of acts or omissions, arising from or based upon
or in any way
related to the Loans or the making or administration of the
Loans.
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Dated
as
of April 26,2006.
GUARANTOR:
GDBA
INVESTMENTS,
LLLP,
a
Colorado limited
liability limited partnership
By:
/s/
_______________________
G. Xxxxx Xxxxxxx, general partner
-9-
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STATE
OF ______________________
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)
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ss
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COUNTY
OF_____________________
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)
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The
foregoing instrument was acknowledged before me this day of ____,
2006,
by
G. Xxxxx Xxxxxxx as general partner of and on behalf of GDBA Investments,
LLLP,
a Colorado limited liability limited partnership.
Witness
my hand and official seal
My
commission expires: ___________________
__________________________________
Notary
Public
-10-
CONSENT
OF GUARANTOR
In
consideration of the transactions consented to hereby, and for other
good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned (collectively "Guarantor") as the guarantor
under
the Unconditional Continuing Guaranty of Payment, dated April 25,
2005, given
by
the undersigned to Vectra Bank Colorado, National Association (the
"Lender") to
guarantee certain obligations of Across America Real Estate Corp. (formerly
known as "Across America Real Estate Development Corp.") ("Company"),
a Colorado
corporation, to the Lender, hereby:
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(a)
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consents
to the extension of the credit facility and other transactions
set forth
in and contemplated by the First Amendment to Credit Agreement,
dated as
of April 26,2006,
between
the Lender and Company;
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(b)
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consents
to any and all prior extensions, amendments and renewals
of the Loans and
the documents governing, evidencing and securing the Loans.
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(c)
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agrees
that the Guaranty and all obligations of the Guarantor thereunder
remain
in full force and effect, notwithstanding the modifications
described in
the First Amendment to Credit Agreement; and
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(d)
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forever
and unconditionally releases and discharges, for himself,
his heirs,
administrators, executors, personal representatives, successors
and
assigns, and all persons claiming by, through or under him,
the Lender,
its affiliates, all its past and present employees, officers,
directors,
agents and its successors and assigns from any and all claims,
demands,
obligations, actions, liabilities, losses, costs, expenses
and damages of
every kind and nature whatsoever, including, without limitation,
attorneys' fees, in law or in equity, whether known or unknown,
that the
undersigned or any other person acting by, through or under
him may now
have, or claim at any future time to have, based in whole
or in part upon
any act or omission to the date herein, without regard to
present, actual
knowledge of acts or omissions, arising from or based upon
or in any way
related to the Loans or the making or administration of the
Loans.
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Dated
as
of April 26, 2006
GUARANTOR:
/s/___________________________________
G.
Xxxxx
Xxxxxxx, individually
/s/___________________________________
Xxxxx
X.
Xxxxxxx, individually
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STATE
OF ______________________
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)
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)
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ss
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COUNTY
OF_____________________
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)
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The
foregoing instrument was acknowledged before me this day of ___, 2006,
by G.
Xxxxx Xxxxxxx, individually.
Witness
my hand and official seal.
My
commission expires: __________________
___________________________
Notary
Public
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STATE
OF ______________________
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)
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)
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ss
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COUNTY
OF_____________________
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)
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The
foregoing instrument was acknowledged before me this day of ___, 2006,
by Xxxxx
X. Xxxxxxx, individually.
Witness
my hand and official seal
My
commission expires: _________
______________________________
Notary
Public
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