BUSINESS LOAN AGREEMENT
Exhibit 10.6
Principal |
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Loan Date |
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Maturity |
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Loan No |
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Call / Coll |
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Account |
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Officer |
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Initials |
$13,500,000.00 |
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12-28-2017 |
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12-28-2020 |
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15525533871 |
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1E1 / 150 |
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melinc |
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References in the boxes above are for Xxxxxx's use only and do not limit the applicability of this document to any particular loan or item.
Any item above containing "***" has been omitted due to text length limitations.
Borrower: |
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Boulder Road LLC, a Colorado limited liability company 000 X Xxxxx Xxxxxxx Xx Xxxxxxxxxx, XX 00000 |
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Lender: |
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GREAT WESTERN BANK Boulder West End 0000 Xxxxx Xx Xxxxxxx, XX 00000 |
THIS BUSINESS LOAN AGREEMENT dated December 28, 2017, is made and executed between Boulder Road LLC, a Colorado limited liability company ("Borrower") and GREAT WESTERN BANK ("Lender") on the following terms and conditions. Borrower has received prior commercial loans from Lender or has applied to Lender for a commercial loan or loans or other financial accommodations, including those which may be described on any exhibit or schedule attached to this Agreement. Xxxxxxxx understands and agrees that: (A) in granting, renewing, or extending any Loan, Lender is relying upon Borrower's representations, warranties, and agreements as set forth in this Agreement; (B) the granting, renewing, or extending of any Loan by Xxxxxx at all times shall be subject to Xxxxxx's sole judgment and discretion; and (C) all such Loans shall be and remain subject to the terms and conditions of this Agreement.
ADVANCE AUTHORITY. The following person or persons are authorized to request advances and authorize payments under the line of credit until Xxxxxx receives from Borrower, at Xxxxxx's address shown above, written notice of revocation of such authority: Xxxx Xxxxxx, Chief Financial Officer of GAIA, INC., a Colorado corporation, Sole Member and Manager of Boulder Road LLC, a Colorado limited liability company.
Organization. Borrower is a limited liability company which is, and at all times shall be, duly organized, validly existing, and in good standing under and by virtue of the laws of the State of Colorado. Borrower is duly authorized to transact business in all other states in which Borrower is doing business, having obtained all necessary filings, governmental licenses and approvals for each state in which Borrower is doing business. Specifically, Borrower is, and at all times shall be, duly qualified as a foreign limited liability company in all states in which the failure to so qualify would have a material adverse effect on its business or financial condition. Borrower has the full power and authority to own its properties and to transact the business in which it is presently engaged or presently proposes to engage. Xxxxxxxx maintains an office at 000 X Xxxxx Xxxxxxx Xx, Xxxxxxxxxx, XX 00000. Unless Borrower has designated otherwise in writing, the principal office is the office at which Borrower keeps its books and records including its records concerning the Collateral. Borrower will notify Lender prior to any change in the location of Xxxxxxxx's state of organization or any change in Borrower's name. Borrower shall do all things necessary to preserve and to keep in full force and effect its existence, rights and privileges, and shall comply with all regulations, rules, ordinances, statutes, orders and decrees of any governmental or quasi-governmental authority or court applicable to Borrower and Xxxxxxxx's business activities.
(b) any agreement or other instrument binding upon Borrower or (2) any law, governmental regulation, court decree, or order applicable to Borrower or to Borrower's properties.
Legal Effect. This Agreement constitutes, and any instrument or agreement Borrower is required to give under this Agreement when delivered will constitute legal, valid, and binding obligations of Borrower enforceable against Borrower in accordance with their respective terms.
Hazardous Substances. Except as disclosed to and acknowledged by Xxxxxx in writing, Borrower represents and warrants that: (1) During the period of Borrower's ownership of the Collateral, there has been no use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance by any person on, under, about or from any of the Collateral. (2) Borrower has no knowledge of, or reason to believe that there has been (a) any breach or violation of any Environmental Laws; (b) any use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the Collateral by any prior owners or occupants of any of the Collateral; or (c) any actual or threatened litigation or claims of any kind by any person relating to such matters. (3) Neither Borrower nor any tenant, contractor, agent or other authorized user of any of the Collateral shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from any of the Collateral; and any such activity shall be conducted in compliance with all applicable federal, state, and local laws, regulations, and ordinances, including without limitation all Environmental Laws. Borrower authorizes Lender and its agents to enter upon the Collateral to make such inspections and tests as Lender may deem appropriate to determine compliance of the Collateral with this section of the Agreement. Any inspections or tests made by Lender shall be at Borrower's expense and for Lender's purposes only and shall not be construed to create any responsibility or liability on the part of Lender to Borrower or to any other person. The representations and warranties contained herein are based on Borrower's due diligence in investigating the Collateral for hazardous waste and Hazardous Substances. Borrower hereby (1) releases and waives any future claims against Lender for indemnity or contribution in the event Borrower becomes liable for cleanup or other costs under any such laws, and (2) agrees to indemnify, defend, and hold harmless Lender against any and all claims, losses, liabilities, damages, penalties, and expenses which Lender may directly or indirectly sustain or suffer resulting from a breach of this section of the Agreement or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release of a hazardous waste or substance on the
Collateral. The provisions of this section of the Agreement, including the obligation to indemnify and defend, shall survive the payment of the Indebtedness and the termination, expiration or satisfaction of this Agreement and shall not be affected by Lender's acquisition of any interest in any of the Collateral, whether by foreclosure or otherwise.
Litigation and Claims. No litigation, claim, investigation, administrative proceeding or similar action (including those for unpaid taxes) against Borrower is pending or threatened, and no other event has occurred which may materially adversely affect Borrower's financial condition or properties, other than litigation, claims, or other events, if any, that have been disclosed to and acknowledged by Xxxxxx in writing.
Lien Priority. Unless otherwise previously disclosed to Lender in writing, Xxxxxxxx has not entered into or granted any Security Agreements, or permitted the filing or attachment of any Security Interests on or affecting any of the Collateral directly or indirectly securing repayment of Borrower's Loan and Note, that would be prior or that may in any way be superior to Xxxxxx's Security Interests and rights in and to such Collateral.
Notices of Claims and Litigation. Promptly inform Xxxxxx in writing of (1) all material adverse changes in Borrower's financial condition, and (2) all existing and all threatened litigation, claims, investigations, administrative proceedings or similar actions affecting Borrower or any Guarantor which could materially affect the financial condition of Borrower or the financial condition of any Guarantor.
Financial Statements. Furnish Lender with the following:
Additional Requirements.
Rent Rolls: As soon as available, but in no event later than forty five (45) days after December 31st (12/31) and June 30th (6/30) of each year, a complete and accurate rent roll of all tenants of the properties located at 000 Xxxx
South Boulder Road, Louisville, CO 80027, including names, addresses, rents paid/due, lease commencement and expiration dates, and other information requested by Borrower for the most recent reporting period most recently ended. Said report shall be prepared by Borrower in a format reasonably acceptable to Lender.
Annual Financial Statements. As soon as available, but in no event later than forty-five (45) days after FYE, Borrowers Balance Sheet and Income Statement for the period ended, prepared by Borrower. As soon as available, but in no event later than forty-five (45) days after FYE, GAIA, Inc.’s Balance Sheet and Income Statement for the period ended, prepared by GAIA, Inc.
All financial reports required to be provided under this Agreement shall be prepared in accordance with GAAP, applied on a consistent basis, and certified by Borrower as being true and correct.
Borrower will maintain its primary operating accounts with Lender for the life of the loan.
The subject loan to Borrower shall receive a 0.50% interest rate reduction for the next calendar quarter if the previous quarter’s average deposit balances exceed $15,000,000 combined for Boulder Road LLC and GAIA, Inc.
Borrower will pay an “Unused Line Fee” of $30,000 for each calendar year if it does not meet the Minimum Interest Requirement for such calendar year, which shall be measured beginning December 31, 2018. Minimum Interest Requirement defined as a minimum $15,000.00 interest accrued and paid to Lender during a calendar year.
Advances will be limited to the following using a Borrowing Base Certificate to be measured January 1st and July 1st of each year:
1.Maximum credit of $13,500,000.00 to be reduced by $500,000.00 semi-annually beginning June 30, 2018, and then an additional reduction of $500,000.00 every December 31 and June 30 following that date.
2.A minimum 10% debt yield (or 10x the average of the previous 2 years Net Operating Income) for Xxxxxxxx's previous 2 year average.
Insurance Reports. Furnish to Lender, upon request of Lender, reports on each existing insurance policy showing such information as Lender may reasonably request, including without limitation the following: (1) the name of the insurer; (2) the risks insured; (3) the amount of the policy; (4) the properties insured; (5) the then current property values on the basis of which insurance has been obtained, and the manner of determining those values; and
(6) the expiration date of the policy. In addition, upon request of Lender (however not more often than annually), Borrower will have an independent appraiser satisfactory to Lender determine, as applicable, the actual cash value or replacement cost of any Collateral. The cost of such appraisal shall be paid by Borrower.
Other Agreements. Comply with all terms and conditions of all other agreements, whether now or hereafter existing, between Borrower and any other party and notify Lender immediately in writing of any default in connection with any other such agreements.
Loan Proceeds. Use all Loan proceeds solely for Xxxxxxxx's business operations, unless specifically consented to the contrary by Xxxxxx in writing.
Taxes, Charges and Liens. Pay and discharge when due all of its indebtedness and obligations, including without limitation all assessments, taxes, governmental charges, levies and liens, of every kind and nature, imposed upon Borrower or its properties, income, or profits, prior to the date on which penalties would attach, and all lawful claims that, if unpaid, might become a lien or charge upon any of Borrower's properties, income, or profits. Provided however, Xxxxxxxx will not be required to pay and discharge any such assessment, tax, charge, xxxx, xxxx or claim so long as (1) the legality of the same shall be contested in good faith by appropriate proceedings, and (2) Borrower shall have established on Borrower's books adequate reserves with respect to such contested assessment, tax, charge, levy, lien, or claim in accordance with GAAP.
Performance. Perform and comply, in a timely manner, with all terms, conditions, and provisions set forth in this Agreement, in the Related Documents, and in all other instruments and agreements between Borrower and Lender.
Borrower shall notify Xxxxxx immediately in writing of any default in connection with any agreement.
Environmental Studies. Promptly conduct and complete, at Borrower's expense, all such investigations, studies, samplings and testings as may be requested by Lender or any governmental authority relative to any substance, or any waste or by-product of any substance defined as toxic or a hazardous substance under applicable federal, state, or local law, rule, regulation, order or directive, at or affecting any property or any facility owned, leased or used by Borrower.
Compliance with Governmental Requirements. Comply with all laws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable to the conduct of Borrower's properties, businesses and operations, and to the use or occupancy of the Collateral, including without limitation, the Americans With Disabilities Act. Borrower may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Borrower has notified Lender in writing prior to doing so and so long as, in Xxxxxx's sole opinion, Xxxxxx's interests in the Collateral are not jeopardized. Lender may require Borrower to post adequate security or a surety bond, reasonably satisfactory to Lender, to protect Xxxxxx's interest.
Additional Assurances. Make, execute and deliver to Lender such promissory notes, mortgages, deeds of trust, security agreements, assignments, financing statements, instruments, documents and other agreements as Lender or its attorneys may reasonably request to evidence and secure the Loans and to perfect all Security Interests.
Loans, Acquisitions and Guaranties. (1) Loan, invest in or advance money or assets to any other person, enterprise or entity, (2) purchase, create or acquire any interest in any other enterprise or entity, or (3) incur any obligation as surety or guarantor other than in the ordinary course of business.
Agreements. Enter into any agreement containing any provisions which would be violated or breached by the performance of Xxxxxxxx's obligations under this Agreement or in connection herewith.
attempts to limit, modify or revoke such Guarantor's guaranty of the Loan or any other loan with Lender; or (E) Lender in good xxxxx xxxxx itself insecure, even though no Event of Default shall have occurred.
DEFAULT. Each of the following shall constitute an Event of Default under this Agreement:
Payment Default. Xxxxxxxx fails to make any payment when due under the Loan.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower or by any governmental agency against any collateral securing the Loan. This includes a garnishment of any of Xxxxxxxx's accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Xxxxxxxx as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower gives Xxxxxx written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute.
Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the Indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except where otherwise provided in this Agreement or the Related Documents, all commitments and obligations of Lender under this Agreement or the Related Documents or any other agreement immediately will terminate (including any obligation to make further Loan Advances or disbursements), and, at Lender's option, all Indebtedness immediately will become due and payable, all without notice of any kind to Borrower, except that in the case of an Event of Default of the type described in the "Insolvency" subsection above, such acceleration shall be automatic and not optional. In addition, Lender shall have all the rights and remedies provided in the Related Documents or available at law, in equity, or otherwise. Except as may be prohibited by applicable law, all of Lender's rights and remedies shall be cumulative and may be exercised singularly or concurrently. Election by Xxxxxx to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Borrower or of any Grantor shall not affect Xxxxxx's right to declare a default and to exercise its rights and remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement:
Governing Law. This Agreement will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the State of Colorado without regard to its conflicts of law provisions. This Agreement has been accepted by Xxxxxx in the State of Colorado.
Choice of Venue. If there is a lawsuit, Xxxxxxxx agrees upon Xxxxxx's request to submit to the jurisdiction of the courts of Boulder County, State of Colorado.
No Waiver by Xxxxxx. Lender shall not be deemed to have waived any rights under this Agreement unless such waiver is given in writing and signed by Xxxxxx. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Xxxxxx of a provision of this Agreement shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Agreement. No prior waiver by Xxxxxx, nor any course of dealing between Xxxxxx and Borrower, or between Lender and any Grantor, shall constitute a waiver of any of Lender's rights or of any of Borrower's or any Grantor's obligations as to any future transactions. Whenever the consent of Lender is required under this Agreement, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender.
Notices. Any notice required to be given under this Agreement shall be given in writing, and shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Agreement. Any party may change its address for notices under this Agreement by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, Xxxxxxxx agrees to keep Xxxxxx informed at all times of Xxxxxxxx's current address. Unless otherwise provided or required by law, if there is more than one Borrower, any notice given by Lender to any Borrower is deemed to be notice given to all Borrowers.
Successors and Assigns. All covenants and agreements by or on behalf of Borrower contained in this Agreement or any Related Documents shall bind Xxxxxxxx's successors and assigns and shall inure to the benefit of Lender and its successors and assigns. Borrower shall not, however, have the right to assign Xxxxxxxx's rights under this Agreement or any interest therein, without the prior written consent of Lender.
Time is of the Essence. Time is of the essence in the performance of this Agreement.
Advance. The word "Advance" means a disbursement of Loan funds made, or to be made, to Borrower or on Borrower's behalf on a line of credit or multiple advance basis under the terms and conditions of this Agreement.
Agreement. The word "Agreement" means this Business Loan Agreement, as this Business Loan Agreement may be amended or modified from time to time, together with all exhibits and schedules attached to this Business Loan Agreement from time to time.
Borrower. The word "Borrower" means Boulder Road LLC, a Colorado limited liability company and includes all co-signers and co-makers signing the Note and all their successors and assigns.
Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statutes, regulations and ordinances relating to the protection of human health or the environment, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("XXXX"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable state or federal laws, rules, or regulations adopted pursuant thereto.
GAAP. The word "GAAP" means generally accepted accounting principles.
Guarantor. The word "Guarantor" means any guarantor, surety, or accommodation party of any or all of the Loan.
Hazardous Substances. The words "Hazardous Substances" mean materials that, because of their quantity, concentration or physical, chemical or infectious characteristics, may cause or pose a present or potential hazard to human health or the environment when improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handled. The words "Hazardous Substances" are used in their very broadest sense and include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances" also includes, without limitation, petroleum and petroleum by-products or any fraction thereof and asbestos.
Lender. The word "Lender" means GREAT WESTERN BANK, its successors and assigns.
Loan. The word "Loan" means any and all loans and financial accommodations from Lender to Borrower whether now or hereafter existing, and however evidenced, including without limitation those loans and financial accommodations described herein or described on any exhibit or schedule attached to this Agreement from time to time.
XXXXXXXX ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN AGREEMENT AND XXXXXXXX AGREES TO ITS TERMS. THIS BUSINESS LOAN AGREEMENT IS DATED DECEMBER 28, 2017.
BORROWER:
Boulder Road LLC, a Colorado limited liability company |
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By: |
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GAIA, INC., a Colorado corporation, Manager of Boulder Road LLC, a Colorado limited liability company |
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By: |
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Xxxx XxxxxX, Chief Financial Officer of GAIA, INC., a Colorado corporation |
Addendum to Business Loan Agreement and Related Documents
This Addendum is made as of December_, 2017, to (i) the Business Loan Agreement dated December_, 2017 (the "Agreement") between Boulder Road LLC, a Colorado limited liability company ("Borrower") and Great Western Bank ("Lender"), (ii) the Promissory Note dated December_, 2017 (the "Note") issued by Borrower to Lender in the principal amount of $13,500,000, (iii) the Commercial Guaranty dated December_, 2017 (the "Guaranty"), by GAIA, Inc. (the "Guarantor") in favor of Lender, (iv) the Deed of Trust dated December_, 2017 (the "Deed of Trust"), among Borrower, Lender and the Public Trustee of Boulder County Colorado,(v) the Assignment of Rents dated December_, 2017 (the "Assignment"), between Borrower and Lender, and (vi) the Corporate Resolution to Guarantee certified by Guarantor to Lender dated December_, 2017 (the "Corporate Resolution"). Capitalized terms used in this Addendum that are not defined in this Addendum have the same meanings as set forth in the Agreement.
Bank, Xxxxxxxx and Guarantor hereby agree that:
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1. |
Notwithstanding anything to the contrary under the subsection titled Affirmative Covenants - Loan Proceeds in the Agreement, the loan proceeds may be used by Gaia, Inc. for its business operations. |
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2. |
(a) The subsection titled Affirmative Covenants - Inspection in the Agreement is amended to add "following reasonable written notice to Borrower" after the phrase at "any reasonable time" in the first sentence of such subsection, and (b) the subsection titled Possession and Maintenance of the Property- Lender's Right to Enter in the Deed of Trust is amended to add "following reasonable prior written notice to Grantor" after the phrase "at all reasonable times" in the first sentence of such subsection. |
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Clause (2) under the subsection titled Negative Covenants - Indebtedness and Liens in the Agreement is amended and restated in its entirety to read: "sell, transfer, mortgage, assign, pledge, lease, grant a security interest in, or encumber any of Borrower's assets (except (i) as allowed under Permitted Liens and (ii) for leases entered into in the ordinary course of business),". |
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Clause (3) under the subsection titled Negative Covenants - Continuity of Operations in the Agreement is deleted in its entirety. |
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Clause (E) under the section subsection titled Cessation of Advances in the Agreement is deleted in its entirety. |
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Notwithstanding anything to the contrary under the subsection titled Default - Payment Default in the Agreement or any of the Related Documents, Borrower shall have a five-day grace period to cure any payment default before such default constitutes an Event of Default. |
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(a) The default set forth under the subsection titled Default - Adverse Change in each of the Agreement and the Note is amended and restated in its entirety to read “A material adverse change occurs in Borrower’s financial condition" and (b) the default set forth under the subsection titled Events of Default - Adverse Change in the Guaranty and under the subsection titled Default - Adverse Change in the Assignment is amended and restated in its entirety to read "A material adverse change occurs in Grantor's/Guarantor's (as applicable) financial condition". |
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The default set forth under the subsection titled Default - Insecurity in the Note is deleted in its entirety. |
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The subsection titled Miscellaneous - Subsidiaries and Affiliates of Borrower in the Agreement is deleted in its entirety. |
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Clause (H) under the section titled Guarantor's Representations and Warranties in the Guaranty is amended to add the phrase "other than litigation, claims, investigations, proceedings or similar actions arising in the ordinary course of business that would not reasonably be expected to have a material |
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adverse effect on Guarantor's business or financial condition". |
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The second sentence under the section titled Xxxxxx's Rights to Receive and Collect Rents in the Assignment is amended and restated in its entirety to read: "Lender is hereby given and granted the follow rights, powers and authority following the occurrence and during the continuance of an Event of Default:" |
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The subsection of the Corporate Resolution titled "Actions Authorized - Execute Security Documents" is deleted in its entirety. |
All other terms and conditions of the Agreement and Related Documents will remain unchanged.
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BORROWER: |
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Boulder Road LLC, a Colorado limited liability |
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By: |
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GAIA, Inc. a Colorado corporation, as Manager of Boulder Road LLC, a Colorado limited liability company |
By: |
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Xxxx Xxxxxx, Chief Financial Officer |
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GUARANTOR: |
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GAIA, Inc., a Colorado corporation |
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By: |
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Xxxx Xxxxxx, Chief Financial Officer |
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LENDER: |
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Great Western Bank |
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By: |
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Authorized Officer |