UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
(Mark One)
☒ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended June 30, 2023
or
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from _____________ to _____________
Commission file number: 0-55402
Rocky Mountain Industrials, Inc. (formerly RMR Industrials, Inc.)
(Exact name of registrant as specified in its charter)
Nevada |
| 46-0750094 |
(State or jurisdiction of incorporation or organization) | (IRS Employer Identification No.) |
6200 South Syracuse Way, Suite 450
Greenwood Village, CO 80111
(Address of principal executive offices)
(720) 614-5213
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
| Trading Symbol(s) |
| Name of each exchange on which registered |
N/A | N/A | N/A |
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☐ No ☒
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☐ No ☒
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐ | Accelerated filer ☐ |
Non-accelerated filer ☒ | Smaller reporting company ☒ |
Emerging growth company ☒ |
|
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
As of August 8, 2023, the registrant had 35,785,858 shares of Class A Common Stock, 4,973,832 shares of Class B Common Stock outstanding and 118.5 shares of Preferred Stock outstanding.
ROCKY MOUNTAIN INDUSTRIALS, INC.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
The statements contained in this Quarterly Report on Form 10-Q that are not historical facts are “forward-looking statements.” Forward-looking statements may include our statements regarding our goals, beliefs, strategies, objectives, plan, including product and service developments, future financial conditions, results or projections or current expectations. Such forward-looking statements may be identified by, among other things, the use of forward-looking terminology such as “believes,” “estimates,” “intends,” “plan,” “expects,” “may,” “will,” “should,” “predicts,” “anticipates,” “continues,” or “potential,” or the negative thereof or other variations thereon or comparable terminology, and similar expressions are intended to identify forward-looking statements. We remind readers that forward-looking statements are merely predictions and therefore inherently subject to uncertainties and other factors and involve known and unknown risks that could cause the actual results, performance, levels of activity, or our achievements, or industry results, to be materially different from any future results, performance, levels of activity, achievements, or industry results, expressed or implied by such forward-looking statements. Such uncertainties and risks include those discussed in the “Risk Factors” and similar sections of our Annual Report on Form 10-K for the year ended March 31, 2023 and our other filings with the Securities and Exchange Commission, all of which are incorporated by reference herein. Forward-looking statements appear in Item 2 – “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” as well as elsewhere in this Quarterly Report.
Our management has included projections and estimates in this Form 10-Q, which are based primarily on management’s experience in the industry, assessments of our results of operations, discussions and negotiations with third parties and a review of information filed by our competitors with the SEC or otherwise publicly available. We caution readers not to place undue reliance on any such forward-looking statements, which speak only as of the date made. We disclaim any obligation subsequently to revise any forward-looking statements to reflect events or circumstances after the date of such statements or to reflect the occurrence of anticipated or unanticipated events except as otherwise required by law.
Unless otherwise specified or required by context, as used in this Report, the terms “we,” “our,” “us” and the “Company” refers collectively to Rocky Mountain Industrials, Inc., (“RMI”) formerly RMR, Industrials, Inc., and its wholly/majority-owned subsidiaries, RMR Aggregates, Inc., RMR Logistics, Inc., and Rail Land Company, LLC. Unless otherwise indicated, the term “common stock” refers to shares of our Class A Common Stock and Class B Common Stock.
Our financial statements are stated in United States Dollars (US$) and are prepared in accordance with generally accepted accounting principles in the United States (GAAP).
2
CAUTIONARY NOTE REGARDING EXPLORATION STAGE STATUS
AND USE OF CERTAIN MINING TERMS
We are considered an “exploration stage” company under the U.S. Securities and Exchange Commission (“SEC”) Regulation S-K 1300, Disclosure by Registrants Engaged or to be Engaged in Mining Operations (“S-K 1300”), because we do not have mineral reserves as defined under S-K 1300. Mineral reserves are defined in S-K 1300 as that part of a measured mineral resource which can be economically and legally extracted or produced at the time of the mineral reserve determination. The establishment of a mineral resource under S-K 1300 is, among other things, a concentration or occurrence of material of economic interest in or on the Earth's crust in such form, grade or quality, and quantity that there are reasonable prospects for economic extraction. A mineral resource is a reasonable estimate of mineralization, taking into account relevant factors such as cut-off grade, likely mining dimensions, location or continuity, that, with the assumed and justifiable technical and economic conditions, is likely to, in whole or in part, become economically extractable. It is not merely an inventory of all mineralization drilled or sampled. Since we have no mineral reserves as defined in S-K 1300, we have not exited the exploration stage and continue to report our financial information as an exploration stage entity as required under relevant accounting principles. We will remain an exploration stage company under S-K 1300 until such time as we demonstrate mineral reserves in accordance with the criteria in S-K 1300.
Since we have no mineral reserves, we will expense all mine construction costs, even though these expenditures are expected to have a future economic benefit in excess of one year. We will also expense our reclamation and remediation costs at the time the obligation is incurred. Companies that have mineral reserves and have exited the exploration stage typically capitalize these costs, and subsequently amortize them on a units-of-production basis as mineral reserves are mined, with the resulting depletion charge allocated to inventory, and then to cost of sales as the inventory is sold. As a result of these and other differences, our financial statements will not be comparable to the financial statements of mining companies that have established mineral reserves and have exited the exploration stage.
We use certain terms in this report such as “production,” “mining or processing activities,” and “mine construction.” Production means the estimated quantities (tonnage) delivered or shipped to our customers, which may result in disclosure of related limestone and dolomite sales. Mining or processing activities means the process of extracting limestone and dolomite from the earth and treating that material. Mine construction means work carried out to access areas in the mine containing limestone and dolomite, which principally includes road construction, ramp construction and ancillary activities. We use these terms in this report since we believe they are necessary and helpful for the reader to understand our business and operations. However, we caution you that we do not have mineral reserves and therefore have not exited the exploration stage as defined in S-K 1300, and our use of the terminology described above is not intended to indicate that we have established reserves or have exited the exploration stage for purposes of S-K 1300. Furthermore, since we do not have mineral reserves, we cannot provide any indication or assurance as to how long we will likely continue mining activities at our mine site or whether such activities will be profitable.
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ROCKY MOUNTAIN INDUSTRIALS, INC.
TABLE OF CONTENTS
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PART I – FINANCIAL INFORMATION
Item 1. Financial Statements
ROCKY MOUNTAIN INDUSTRIALS, INC.
Condensed Consolidated Balance Sheets (Unaudited)
June 30, | March 31, | ||||||
| 2023 |
| 2023 | ||||
ASSETS |
|
|
|
| |||
Current assets |
|
|
|
| |||
Cash | $ | 6,814,589 | $ | 3,528,858 | |||
Accounts receivable |
| 52,479 |
| 53,604 | |||
Other receivables | 1,432,920 | 2,647,268 | |||||
Inventory |
| 97,874 |
| 102,243 | |||
Prepaid expenses |
| 843,320 |
| 1,251,644 | |||
Total current assets |
| 9,241,182 |
| 7,583,617 | |||
Property, plant, and equipment, net |
| 2,122,818 |
| 2,233,971 | |||
Land under development |
| 22,361,233 |
| 14,939,567 | |||
Right of use asset | 398,472 | 417,734 | |||||
Asset retirement obligation, net |
| 65,049 |
| 66,264 | |||
Other intangibles, net |
| 41,000 |
| 41,000 | |||
Restricted cash | 185,530 | 185,530 | |||||
Deposits and other assets |
| 35,090 |
| 35,090 | |||
Total assets | $ | 34,450,374 | $ | 25,502,773 | |||
LIABILITIES AND STOCKHOLDERS’ EQUITY |
|
|
|
| |||
Current liabilities |
|
|
|
| |||
Accounts payable | $ | 10,363,230 | $ | 7,576,480 | |||
Accrued liabilities |
| 153,885 |
| 147,621 | |||
Accrued liabilities, related party |
| 1,997,500 |
| 1,877,500 | |||
Dividends payable | 1,878,037 | 1,742,869 | |||||
Debt due within one year | 32,997 | 40,969 | |||||
Lease liability, current | 80,260 | 78,960 | |||||
Total current liabilities |
| 14,505,909 |
| 11,464,399 | |||
Debt due after one year | 21,007,136 | 13,512,824 | |||||
Lease liability, long-term | 383,678 | 406,784 | |||||
Accrued reclamation liability |
| 148,237 |
| 144,707 | |||
Total liabilities |
| 36,044,960 |
| 25,528,714 | |||
Commitments and Contingencies | |||||||
Stockholders’ Equity (Deficit) |
|
|
|
| |||
Preferred Stock Series A-1, $0.001 par value, 50,000,000 shares authorized: 48.27 shares issued and outstanding on June 30, 2023 and March 31, 2023 |
| 4,827,000 |
| 4,827,000 | |||
Preferred Stock Series A-2, $0.001 par value, 50,000,000 shares authorized: 19.45 issued and outstanding on June 30, 2023 and March 31, 2023 | 1,950,000 | 1,950,000 | |||||
Preferred Stock Series A-3, $0.001 par value, 50,000,000 shares authorized: 50.75 issued and outstanding on June 30, 2023 and March 31, 2023 | 5,075,140 | 5,075,140 | |||||
Class A Common Stock, $0.001 par value; 2,000,000,000 shares authorized; 35,785,858 shares issued and outstanding on June 30, 2023 and March 31, 2023 |
| 35,786 |
| 35,786 | |||
Class B Common Stock, $0.001 par value; 100,000,000 shares authorized; 4,973,832 shares issued and outstanding on March 31, 2023 and March 31, 2022 |
| 4,975 | 4,975 | ||||
Additional paid-in capital |
| 60,876,531 |
| 60,783,824 | |||
Accumulated deficit |
| (74,364,018) |
| (72,702,666) | |||
Total stockholders’ equity (deficit) | (1,594,586) | (25,941) | |||||
Total liabilities and stockholders’ equity (deficit) | $ | 34,450,374 | $ | 25,502,773 | |||
The accompanying notes are an integral part of these condensed consolidated financial statements.
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ROCKY MOUNTAIN INDUSTRIALS, INC.
Condensed Consolidated Statements of Operations (Unaudited)
For the three months ended | |||||||
June 30, | |||||||
| 2023 |
| 2022 | ||||
Revenue | $ | 134,593 | $ | 183,150 | |||
Cost of goods sold |
| 139,249 |
| 274,711 | |||
Gross profit (loss) |
| (4,656) |
| (91,561) | |||
Selling, general and administrative (includes depreciation, depletion and amortization of $112,367 in 2023 and $54,719 in 2022) |
| 1,198,654 |
| 2,394,330 | |||
Loss from operations |
| (1,203,310) |
| (2,485,891) | |||
Gain (loss) on sale of assets | — | (5,909) | |||||
Other Income (expense) | 30,000 | — | |||||
Interest income (expense), net |
| (352,874) |
| (206,975) | |||
Loss before income tax provision |
| (1,526,184) |
| (2,698,775) | |||
Income tax expense |
| — |
| — | |||
Net Loss | $ | (1,526,184) | $ | (2,698,775) | |||
Earnings (loss) per shares - basic and diluted | (0.25) | (0.43) | |||||
Weighted average shares outstanding - basic and diluted | 6,763,125 | 6,537,153 | |||||
The accompanying notes are an integral part of these condensed consolidated financial statements.
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ROCKY MOUNTAIN INDUSTRIALS, INC.
Statements of Changes in Stockholder Equity (Unaudited)
Preferred Stock | |||||||||||||||||||||||||||||||||||||
Common Stock Class A | Common Stock Class B | Series A-1 | Series A-2 | Series A-3 | Additional | Accumulated | |||||||||||||||||||||||||||||||
| Shares |
| Amount |
| Shares |
| Amount |
| Shares |
| Amount |
| Shares |
| Amount |
| Shares |
| Amount |
| Paid-In Capital |
| Deficit |
| Total | ||||||||||||
Balance, March 31, 2022 | 35,785,858 | $ | 35,786 | 4,866,832 | $ | 4,868 | 48.27 | $ | 4,827,000 | 19.45 | $ | 1,950,000 | 50.75 | $ | 5,075,140 | $ | 58,972,469 | $ | (63,810,756) | $ | 7,054,507 | ||||||||||||||||
Issuance of restricted Class B Common stock for compensation | — | — | 5,000 | 5 | — | — | — | — | — | — | — | (5) | — | ||||||||||||||||||||||||
Forfeiture of Class B Common stock | — | — | (5,000) | (5) | — | — | — | — | — | — | — | 5 | — | ||||||||||||||||||||||||
Quarterly dividends on Series A-1 and A-2 Preferred shares | — | — | — | — | — | — | — | — | — | — | — | (135,170) | (135,170) | ||||||||||||||||||||||||
Stock-based compensation | — | — | — | — | — | — | — | — | — | — | 656,876 | — | 656,876 | ||||||||||||||||||||||||
Net loss | — | — | — | — | — | — | — | — | — | — | — | (2,698,775) | (2,698,775) | ||||||||||||||||||||||||
Balance, June 30, 2022 | 35,785,858 | $ | 35,786 | 4,866,832 | $ | 4,868 | 48.27 | $ | 4,827,000 | 19.45 | $ | 1,950,000 | 50.75 | $ | 5,075,140 | $ | 59,629,345 | $ | (66,644,701) | $ | 4,877,438 | ||||||||||||||||
The accompanying notes are an integral part of these condensed consolidated financial statements.
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ROCKY MOUNTAIN INDUSTRIALS, INC.
Statements of Changes in Stockholder Equity (Unaudited)(Continued)
Preferred Stock | |||||||||||||||||||||||||||||||||||||
Common Stock Class A | Common Stock Class B | Series A-1 | Series A-2 | Series A-3 | Additional | Accumulated | |||||||||||||||||||||||||||||||
| Shares |
| Amount |
| Shares |
| Amount |
| Shares |
| Amount |
| Shares |
| Amount |
| Shares |
| Amount |
| Paid-In Capital |
| Deficit |
| Total | ||||||||||||
Balance, March 31, 2023 | 35,785,858 | $ | 35,786 | 4,973,832 | $ | 4,975 | 48.27 | $ | 4,827,000 | 19.45 | $ | 1,950,000 | 50.75 | $ | 5,075,140 | $ | 60,783,824 | $ | (72,702,666) | $ | (25,941) | ||||||||||||||||
Issuance of restricted Class B Common stock for compensation | — | — | — | — | — | — | — | — | — | — | — | — | — | ||||||||||||||||||||||||
Forfeiture of Class B Common stock | — | — | — | — | — | — | — | — | — | — | — | — | — | ||||||||||||||||||||||||
Quarterly dividends on Series A-1 and A-2 Preferred shares | — | — | — | — | — | — | — | — | — | — | — | (135,168) | (135,168) | ||||||||||||||||||||||||
Stock-based compensation | — | — | — | — | — | — | — | — | — | — | 92,707 | — | 92,707 | ||||||||||||||||||||||||
Net loss | — | — | — | — | — | — | — | — | — | — | — | (1,526,184) | (1,526,184) | ||||||||||||||||||||||||
Balance, June 30, 2023 | 35,785,858 | $ | 35,786 | 4,973,832 | $ | 4,975 | 48.27 | $ | 4,827,000 | 19.45 | $ | 1,950,000 | 50.75 | $ | 5,075,140 | $ | 60,876,531 | $ | (74,364,018) | $ | (1,594,586) | ||||||||||||||||
The accompanying notes are an integral part of these condensed consolidated financial statements.
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ROCKY MOUNTAIN INDUSTRIALS, INC.
Condensed Consolidated Statements of Cash Flows (Unaudited)
Three months ended | |||||||
June 30, | |||||||
| 2023 |
| 2022 | ||||
Cash flow from operating activities: |
|
|
|
| |||
Net loss | $ | (1,526,184) | $ | (2,698,775) | |||
Adjustments to reconcile net loss to net cash used in operating activities: |
|
| |||||
Depreciation, depletion and amortization expense |
| 112,367 |
| 54,719 | |||
Stock-based compensation |
| 92,707 |
| 656,876 | |||
Gain/loss on sale of assets | — | 5,909 | |||||
Amortization of debt discount and deferred financing cost |
| 95,819 |
| 3,271 | |||
Accretion expense | 3,530 | 3,209 | |||||
Changes in operating assets and liabilities: |
|
| |||||
Accounts receivable |
| 1,125 |
| 53,766 | |||
Other receivables | 1,214,348 | 1,233,710 | |||||
Inventory |
| 4,369 |
| (5,875) | |||
Prepaid expenses |
| 408,324 |
| (258,333) | |||
Restricted cash |
| — |
| (16) | |||
Accounts payable |
| 2,786,750 |
| 1,988,802 | |||
Accrued liabilities |
| 7,670 |
| 116,240 | |||
Accrued liabilities, related parties |
| 120,000 |
| 120,000 | |||
Lease Liability | (2,544) | 8,714 | |||||
Other | 1 | (1) | |||||
Net cash provided by (used in) operating activities |
| 3,318,282 |
| 1,282,216 | |||
Cash Flows from Investing Activities: | |||||||
Investment in land under development | (13,522,974) | (3,799,919) | |||||
Reimbursement of land under development cost from Metro District | 6,101,308 | 1,852,328 | |||||
Purchase of property, plant and equipment | — | (2,262) | |||||
Net cash provided by (used in) investing activities |
| (7,421,666) |
| (1,949,853) | |||
Cash Flows from Financing Activities: | |||||||
Proceeds from note payable | 7,405,703 | 5,215,023 | |||||
Repayment of debt | (16,588) | (5,153,109) | |||||
Net cash provided by financing activities |
| 7,389,115 |
| 61,914 | |||
Net increase (decrease) in cash | 3,285,731 | (605,723) | |||||
Cash at beginning of period | 3,528,858 | 3,238,377 | |||||
Cash at end of period | $ | 6,814,589 | $ | 2,632,654 | |||
Restricted cash at beginning of period | $ | 185,530 | $ | 185,325 | |||
Other | — | 16 | |||||
Restricted cash at end of period | $ | 185,530 | $ | 185,341 | |||
Supplemental cash flow information: | |||||||
Cash paid for interest | $ | 273,432 | $ | 164,683 | |||
Cash paid for income taxes | $ | — | $ | — | |||
Right of use asset / Lease liability | $ | — | $ | 481,435 | |||
The accompanying notes are an integral part of these condensed consolidated financial statements.
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ROCKY MOUNTAIN INDUSTRIALS, INC.
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. ORGANIZATION
On January 1, 2020, the Company changed its name from RMR Industrials, Inc. to Rocky Mountain Industrials, Inc.
Rocky Mountain Industrials, Inc. (the “Company”, “RMI”, “we”, “our”, “us”) seeks to acquire and consolidate complementary industrial assets. RMI’s consolidation strategy is to assemble a portfolio of mature and value-add industrial commodities businesses to generate scalable enterprises with a broad portfolio of products and services addressing a common and stable customer base.
Through our wholly owned subsidiary, RMR Aggregates, Inc. (“RMR Aggregates”), we operate the Mid-Continent Quarry in Garfield County, Colorado, producing chemical-grade calcium carbonate that currently services local and regional customers in a variety of end markets, including but not limited to mining, manufacturing, construction, and agriculture.
Through our wholly owned subsidiary, Rail Land Company, LLC (“Rail Land Company”), we are actively developing Rocky Mountain Rail Park (the “Rail Park”), a dedicated rail-served industrial business park serving the greater Denver market. The Company’s development of the Rail Park is intended to expand the customer base for our products by utilizing rail freight capabilities to reach customers in the greater Denver area and by expanding our business to include rail transportation solutions and services.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation
The accompanying unaudited interim consolidated financial statements have been prepared in accordance with the accounting policies described in the consolidated financial statements and related notes included in our annual report on Form 10-K for the year ended March 31, 2023, (“2023 Form 10-K”) and should be read in conjunction with such consolidated financial statements and related notes. The 2023 year end consolidated balance sheet data included in the Form 10-Q filing was derived from the audited consolidated financial statements in our 2023 Form 10-K, but does not include all disclosures required by accounting principles generally accepted in the United States. The following notes to these interim consolidated financial statements highlight significant changes to the notes included in the March 31, 2023 audited consolidated financial statements included in our 2023 Form 10-K and present interim disclosures as required by the Securities and Exchange Commission.
Consolidation
The consolidated financial statements have been prepared in accordance with generally accepted accounting principles in the United States (“GAAP”). The condensed consolidated financial statements include the financial condition and results of operations of our wholly-owned subsidiaries, where intercompany balances and transactions have been eliminated in consolidation.
Use of Estimates
The preparation of financial statements in conformity with GAAP requires management to make estimates, judgments, and assumptions that impact the reported amounts of assets, liabilities, and expenses, and disclosure of contingent assets and liabilities in the financial statements and accompanying notes. Actual results could materially differ from those estimates. Management considers many factors in selecting appropriate financial accounting policies and controls, and in developing the estimates and assumptions that are used in the preparation of these financial statements. Management must apply significant judgment in this process. In addition, other factors may affect estimates, including: expected business and operational changes, sensitivity and volatility associated with the assumptions used in developing estimates, and
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whether historical trends are expected to be representative of future trends. The estimation process may yield a range of potentially reasonable estimates of the ultimate future outcomes and management must select an amount that falls within that range of reasonable estimates. Although these estimates are based on the Company’s knowledge of current events and actions it may undertake in the future, actual results may ultimately materially differ from those estimated amounts and assumptions used in the preparation of the financial statements.
Fair Value Measurements
The fair value of a financial instrument is the amount that could be received upon the sale of an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. Financial assets are marked to bid prices and financial liabilities are marked to offer prices. Fair value measurements do not include transaction costs. A fair value hierarchy is used to prioritize the quality and reliability of the information used to determine fair values. Categorization within the fair value hierarchy is based on the lowest level of input that is significant to the fair value measurement. The fair value hierarchy is defined into the following three categories:
- Level 1: Quoted market prices in active markets for identical assets or liabilities
- Level 2: Observable market-based inputs or inputs that are corroborated by market data
- Level 3: Unobservable inputs that are not corroborated by market data
The fair value of notes payable was $21,391,468 and $14,000,947 as of June 30, 2023 and March 31, 2023, respectively.
Earnings (loss) per Common Share
Basic earnings (loss) per common share is calculated by dividing the net income (loss) by the weighted average number of common shares outstanding during the period, without consideration for the potentially dilutive effects of converting stock options or restricted stock purchase rights outstanding. Diluted earnings (loss) per common share is calculated by dividing net income (loss) by the weighted average of common shares outstanding during the period and the potential dilutive effects of stock options or restricted stock purchase rights outstanding during the period determined using the treasury stock method. In periods in which the Company reports a net loss, diluted earnings per share is the same as basic earnings per share since dilutive common shares are not assumed to have been issued, as their effect is anti-dilutive.
3. INVENTORY
Inventory, is valued at the lower of cost (average) or market.
June 30, | March 31, | ||||||
2023 | 2023 |
| |||||
Blasted Rock | $ | 97,874 | $ | 102,243 | |||
Total | $ | 97,874 | $ | 102,243 | |||
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4. PROPERTY, PLANT AND EQUIPMENT
The following summarizes the Company’s property, plant and equipment as of:
| June 30, |
| March 31, | ||||
2023 | 2023 | ||||||
Recoverable Limestone | $ | 1,477,469 | $ | 1,477,469 | |||
Mill Equipment |
| 1,220,657 |
| 1,220,657 | |||
Mining Equipment |
| 333,029 |
| 333,029 | |||
Mobile Equipment |
| 708,661 |
| 863,660 | |||
Other |
| 78,974 |
| 78,974 | |||
Total |
| 3,818,790 |
| 3,973,789 | |||
Less: Accumulated Depreciation |
| (1,695,972) |
| (1,739,818) | |||
Property, plant and equipment, net | $ | 2,122,818 | $ | 2,233,971 | |||
5. NOTES PAYABLE
In May 2022, Rail Land Company executed on a Promissory Note for a construction loan (“Construction Note”) of $21M and a Promissory Note for a revolving line of credit (“Line of Credit”) of $2M with a bank to provide for the developer portion of infrastructure costs of the Rail Park. A portion of the $21M Construction Note was used to repay the Secured Promissory Note. The Construction Note is secured by the underlying property of the Rail Park and RMI is the guarantor. The Line of Credit is secured by amounts owed to Rail Land Company from the District for submitted pay applications. The Construction Note and Line of Credit incur interest at prime rate plus 2.25% and each have maturity dates of May 20, 2024. The initial interest rate was 6.25%.
Net proceeds from the sale of Rail Park lots shall be used to reduce the then outstanding principal balance of the Construction Note at a rate of eighty five percent (85%) of net proceeds of the first lot sale and seventy five percent (75%) of net proceeds from subsequent lot sales. Distribution or dividends of Rail Land Company to any of its members or other legal beneficial owner may not be paid without the consent of the bank. Rail Land Company is to maintain a minimum cash balance with the bank of $1M, tested quarterly.
6. TRANSACTIONS WITH RELATED PARTIES
As of June 30, 2023, the Company has accrued $1,997,500 for unpaid officers’ compensation expense in accordance with consulting agreements with our Non-executive Board Chairman and Chief Executive Officer. Under the terms of each consulting agreement, each consultant shall serve as an executive officer to the Company and receive monthly
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compensation of $35,000. The consulting agreements may be terminated by either party for breach or upon thirty days prior written notice.
7. SHAREHOLDERS’ EQUITY
Preferred Stock
The Company has authorized 50,000,000 shares of preferred stock for issuance. In April 2021, the Board of Directors of the Company authorized 118.47 shares as Series A Preferred Stock and designated 48.27 shares as Series A-1 Convertible Preferred Stock, 19.45 shares as Series A-2 Convertible Preferred Stock and 50.75 shares as Series A-3 Convertible Preferred Stock (collectively referred to as “Series A Preferred Stock”). The Series A Preferred Stock is senior, with respect to dividend rights and to rights upon any voluntary or involuntary liquidation, dissolution or winding up of the Company (each, a “Liquidation Event”) in preference and priority to the Class A Common Stock and Class B Common Stock of the Company.
Voting Rights
Series A Preferred Stock is entitled to vote on all matters submitted to a vote of the stockholders of the Company together with the holders of Class B Common Stock and is entitled to that number of votes equal to the number of shares of Class B Common Stock into which the holder’s shares of Series A Preferred Stock could then be converted.
Dividends
Series A-1 Preferred Stock and Series Preferred Stock, accrue dividends at the rate per annum of $8,000 (“Accruing Dividends”), subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series A Preferred Stock, whether or not declared, and shall be cumulative. The Company shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock of the Company (other than dividends on shares of Class B Common Stock payable in shares of Class B Common Stock) unless the holders of the Series A-1 Preferred Stock and Series A-2 Preferred Stock then outstanding shall first receive, or simultaneously receive, a dividend on each outstanding share of Series A-1 Preferred Stock and Series A- 2 Preferred Stock in an amount at least equal to the sum of (i) the amount of the aggregate Accruing Dividends then accrued on such share of Series A-1 Preferred Stock or Series A-2 Preferred Stock (as applicable) and not previously paid and (ii) in the case of a dividend on Class B Common Stock or any class or series that is convertible into Class B Common Stock, that dividend per share of Series A-1 Preferred Stock or Series A-2 Preferred Stock (as applicable) as would equal the product of (l) the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Class B Common Stock and (2) the number of shares of Class B Common Stock issuable upon conversion of a share of Series A-I Preferred Stock or Series A-2 Preferred Stock (as applicable), in each case calculated on the record date for determination of holders entitled to receive such dividend. Series A-3 Preferred Stock does not accrue dividends.
Liquidation Preference
In the event of any Liquidation Event, the holders of shares of Series A Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Company available for distribution to its stockholders, and in the event of a Deemed Liquidation Event (as defined below), the holders of shares of Series A Preferred Stock then outstanding shall be entitled to be paid out of the consideration payable to stockholders in such Deemed Liquidation Event or out of the available proceeds, as applicable, before any payment shall be made to the holders of Common Stock. A Deemed Liquidation Event is defined as a merger or consolidation in which a change of control of the Company has occurred or the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by the Company or any subsidiary of the Company of all or substantially all the assets of the Company and its subsidiaries taken as a whole.
Conversion
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Series A Preferred Stock is convertible, at the option of the holder, into a number of shares of Class B Common Stock determined by dividing (i) the sum of the Series A Original Issue Price and all then-unpaid Accruing Dividends by (ii) the respective conversion price in effect at the time of conversion. The Series A-1 Preferred Stock conversion price is $25.00 per share, the Series A-2 Preferred Stock conversion price is $21.00 per share and the Series A-3 Preferred Stock conversion price is $15.00 per share.
In the event of an underwritten public offering, public uplist, or qualified equity issuance of at least $10,000,000 in gross proceeds and a minimum price per share of $25.00 for the Company's Common Stock (“Qualified Offering”), Series A Preferred Stock shall automatically be converted into such number of fully paid and non-assessable shares of Class B Common Stock at the then effective conversion rate as noted above.
Common Stock
The Company has authorized 2,100,000,000 shares of common stock for issuance, including 2,000,000,000 shares of Class A Common Stock and 100,000,000 shares of Class B Common Stock.
The holders of Class A Common Stock have the right to vote on all matters on which stockholders have the right to vote. The holders of Class B Common Stock have the right to vote solely on matters where the vote of such holders is explicitly required under Nevada law. The holders of Class A Common Stock and Class B Common stock have equal distribution rights, provided that distributions in securities shall be made in either identical securities or securities with similar voting characteristics. The holders of Class A Common Stock and Class B Common Stock are entitled to receive identical per-share consideration upon a merger, conversion or exchange of the Company with another entity, and have equal rights upon a dissolution, liquidation or winding-up of the Company.
8. SHARE-BASED COMPENSATION
The RMR Industrials, Inc. 2015 Equity Incentive Plan (the “2015 Plan”) authorizes the issuance of up to 30% of the outstanding shares of Common Stock at any time pursuant to awards made by the Company’s board of directors. As of June 30, 2023, there were 808,786 shares still available for future issuance under the 2015 Plan.
Stock Options
The Company grants stock options to certain employees that give them the right to acquire our Class B common stock under the 2015 Plan. The exercise price of options granted is equal to the closing price per share of our stock at the date of grant. The nonqualified options vest at a rate of 33% on each of the first three anniversaries of the grant date provided that the award recipient continues to be employed by us through each of those vesting dates and expire ten years from the date of grant. No stock option awards were granted during the three months ended June 30, 2023.
Stock Awards
During the three months ended June30, 2023, the Company granted no restricted shares of Class B Common Stock. Restricted shares vest ratably over a four-year vesting period, subject to continued service and a performance condition. During the three months ended June 30, 2023, no restricted shares of common stock were forfeited.
9. SEGMENT REPORTING
For the three months ended June 30, 2023 and 2022, the Company has two reportable segments: Aggregates and Rail Park. The Aggregates segment produces chemical grade limestone for use in the aggregates market. The Rail Park segment consists of land under development to provide a rail terminal and services facility and currently has no operational activity. The Rail Park will require significant future capital investment before the segment starts generating recurring revenue. The Rail Park development commenced in the first half of calendar year 2021.
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The Aggregates segment has a mining company customer that accounted for approximately 58% of Aggregates segment revenue for the three months ended June 30, 2023.
As of June 30, 2023, the mining company and a construction company accounted for approximately 36% and 15% of Aggregates segment accounts receivable balance.
The accounting policies of the segments are the same as those described in the summary of significant accounting policies. The Company evaluates performance based on profit or loss from operations before income taxes not including nonrecurring gains and losses.
The Company’s reportable segments are strategic business units that offer different products and services. They are managed separately because each business requires different technology and marketing strategies. All assets are held and all operating activities occur within the United States.
Three months ended June 30, 2022 | |||||||||
Aggregates |
| Rail Park |
| Other/Corporate |
| Total | |||
Revenue | 183,150 | $ | — | $ | — | $ | 183,150 | ||
Gross profit (loss) | (91,561) | — | — |
| (91,561) | ||||
Selling, general and administrative | 154,779 | — | 2,239,551 |
| 2,394,330 | ||||
Property, plant and equipment, net | 2,377,509 | — | 13,152 |
| 2,390,661 | ||||
Land under development | — | 8,921,225 | — |
| 8,921,225 | ||||
Land Under Development
In 2018, the Company formed the Rocky Mountain Rail Park Metropolitan District (“District”) for the purpose of financing public improvements related to the development of approximately 620 acres, including open space and other right-of-way areas and providing ongoing operations and maintenance services related to the public improvements. Public improvements are generally any part or all of the public improvements authorized to be planned, designed, acquired, constructed, installed, relocated, redeveloped, operated, maintained and/or financed, including necessary and appropriate landscaping, appurtenances and real property to effect such improvements, as generally described in the Colorado Special District Act (Title 32, Article 1, Colorado Revised Statutes) and as may be necessary to serve the future taxpayers and inhabitants of the District, as determined by the District Board, including public improvements within and outside of the District’s boundaries.
In April 2021, the District closed on its Limited Tax General Obligation and Water Revenue Bonds, Series 2021A and 2021B (“Tax -Exempt Bonds”) raising total proceeds of approximately $65.2 million, approximately $51.2 million of which will be directly used to fund the public improvements. The Tax - Exempt Bonds are an obligation of the District and not of the Company and will be repaid through ownership taxes and other enterprise revenues collected by the District from property owners residing in the District.
Water Rights
In September 2021, the Company sold its water rights attributable to the Land under development to the District for a sales price of approximately $5.9 million. The proceeds were received on September 30, 2021, resulting in the recording of a
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gain on sales of assets of approximately $4.8 million, which was recognized in the consolidated statement of operation for the quarter ended September 30, 2021.
10. COMMITMENTS AND CONTINGENCIES
Accrued Reclamation Liability
The Company incurs reclamation liabilities as part of its mining activities. Quarry activities require the removal and relocation of significant levels of overburden to access materials of usable quantity and quality. The same overburden material is used to reclaim depleted mine areas, which must be sloped to a certain gradient and seeded to prevent erosion in the future. Reclamation methods and requirements can differ depending on the quarry and state rules and regulations in existence for certain locations. As of June 30, 2023, the Company’s undiscounted reclamation obligations totaled approximately $366,000. This obligation is expected to be settled within the next 20 years.
Reclamation costs resulting from the normal use of long-lived assets, either owned or leased, are recognized over the period the asset is in use. The obligation, which cannot be reduced by estimated offsetting cash flows, is recorded at fair value as a liability at the obligating event date and is accreted through charges to selling, general and administrative costs, inclusive of depreciation, depletion and amortization. The fair value is based on our estimate of the cost required for a third party to perform the legally required reclamation tasks including a reasonable profit margin. This fair value is also capitalized as part of the carrying amount of the underlying asset and depreciated over the estimated useful life of the asset.
The mining reclamation reserve is based on management’s estimate of future cost requirements to reclaim property at its operating quarry site. Costs are estimated in current dollars and inflated until the expected time of payment using a future estimated inflation rate and then discounted back to present value using a credit-adjusted, risk-free rate on obligations of similar maturity adjusted to reflect our credit rating. The Company will review reclamation liabilities at least every three years for a revision to the cost or a change in the estimated settlement date. Additionally, reclamation liabilities are reviewed in the period in which a triggering event occurs that would result in either a revision to the cost or a change in the estimated settlement date. Examples of events that would trigger a change in the cost include a new reclamation law or amendment to an existing mineral lease. Examples of events that would cause a change in the estimated settlement date include the acquisition of additional reserves or early or delayed closure of a site. Any affect to earnings from cost revisions is included in cost of revenue.
A reconciliation of the carrying amount of our accrued reclamation liabilities is as follows:
Balance at April 1, 2023 |
| $ | 144,707 |
Liabilities incurred |
| — | |
Accretion expense |
| 3,530 | |
Balance at June 30, 2023 | $ | 148,237 | |
11. SUBSEQUENT EVENTS
On July 28, 2023, Rail Land Company executed an amendment to its $21M Construction Note. The amendment cancelled the $2M Line of Credit and increased the Construction Note to $29.5M and includes a reborrowing amount of up to $8.5M. The Construction Note incurs interest at prime rate plus 2.25% and has an amended maturity date of February 17, 2025.
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Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations
The following discussion should be read in conjunction with our consolidated financial statements and notes thereto included elsewhere in this Quarterly Report on Form 10-Q. This discussion includes forward-looking statements for purposes of U.S. federal securities laws. See “Cautionary Note Regarding Forward-Looking Statements”.
Overview
We were incorporated in the State of Nevada in August 2012 under the name “Online Yearbook” with the principal business objective of developing and marketing online yearbooks for schools, companies and government agencies.
In November 2014, Rocky Mountain Resource Holdings, Inc. (“RMRH”) became our majority shareholder by acquiring 5,200,000 shares of our common stock (the “Shares”), or 69.06% of the then issued and outstanding shares, pursuant to stock purchase agreements with Messrs. El Maraana and Salah Blal, our former officers and directors. The Shares were acquired for an aggregate purchase price of $357,670.
In December 2014, we changed our name to “RMR Industrials, Inc.” and on January 1, 2020, the Company changed its name from RMR Industrials, Inc. to Rocky Mountain Industrials, Inc.
In July 2016, we formed RMR Aggregates, Inc., a Colorado corporation (“RMR Aggregates”), as our wholly-owned subsidiary. RMR Aggregates was formed to hold assets whose primary focus is the mining and processing of industrial minerals for the manufacturing, construction and agriculture sectors. These minerals include limestone, aggregates, marble, silica, barite and sand.
In October 2016, pursuant to an Asset Purchase Agreement with CalX Minerals, LLC, a Colorado limited liability company (“CalX”), RMR Aggregates completed the purchase of substantially all of the assets associated with the Mid-Continent Quarry on 41 BLM unpatented placer mining claims in Garfield County, Colorado. CalX assets include the mining claims, improvements, access rights, water rights, equipment, inventory, contracts, permits, certain intellectual property rights, and other tangible and intangible assets associated with the limestone mining operation.
In January 2018, the Company formed Rail Land Company, LLC (“Rail Land Company”) as a wholly-owned subsidiary to acquire and develop a rail terminal and services facility (the “Rail Park”). Rail Land Company purchased an approximately 470-acre parcel of real property located in Bennett, Colorado in February, 2018.
In July 2018 we exercised our option to acquire an additional approximately 150 acres for a total of approximately 620 acres. The Company’s development of the Rail Park is intended to expand the customer base for our products by utilizing rail freight capabilities to reach customers in the greater Denver area and by expanding our business to include rail transportation solutions and services.
Results of Operations
Comparison of the three months Ended June 30, 2023 and June 30, 2022
Revenues
Our revenues for the three-month periods ended June 30, 2023 was $134,593. This compares to revenue for the same period ended June 30, 2022 of $183,150. The decrease in revenues for the three-month period ended June 30, 2023, is the result of a decrease in demand from the Company’s primary customer.
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Cost of Goods Sold
Our cost of goods sold for the three-month period ended June 30, 2023 was $139,249. This compares to cost of goods sold for the same period ended June 30, 2022 of $274,711. The decrease in cost of goods sold for the three-month period ended June 30, 2023 is generally the result of the decrease in revenues.
Selling, General and Administrative Expenses
Our selling, general and administrative expenses for the three-month period ended June 30, 2023 were $1,198,654. This compares to operating expenses for the same period ended June 30, 2022 of $2,394,330. Selling, general and administrative expenses consisted of overhead costs related to payroll and associated benefits, consulting services from related parties, public company costs, and depreciation and amortization. The decrease is primarily related to the Company managing selling, general and administrative costs as we continue to operate in a development stage.
Interest Expense, net
Our interest expense, net for the three-month period ended June 301, 2023 were $352,874, compared to $206,975 of interest expense for the same periods ended June 30, 2022.
Net Income/(Loss)
Our net loss for the three-month period ended June 30, 2023 was $1,526,184. This compares to a net loss for the same period ended June 30, 2022 of $2,698,775.
Liquidity and Capital Resources
As of June 30, 2023, we had current assets of $9,241,182, total current liabilities of $14,505,909 and working capital deficiency of $5,264,727. We have incurred an accumulated loss of $74,364,018 since inception.
In past years, the Company funded operations by using cash proceeds received through the issuance of common and preferred stock and proceeds from debt financing. However, several significant transactions have occurred that have positively impacted the net financial position of the Company and strengthened its financial position and its ability to meet future obligation over the next 12 months without a need to raise additional funds as it has traditionally been required to do. These include:
| 1. | Rail Park FDP and Final Plat were unanimously approved by the Adams County Board of County Commissioners on September 1, 2020, paving the way for lot sales and construction. |
| 2. | On January 14, 2021, the Company sold an 83-acre lot to a Fortune 500 company for a gross sales price of $9.1M. This purchase was the first of twelve available lots in the Rail Park. Lot sales will be a primary source of cash inflows for the Company with significant interest from many potential light and heavy industrial tenants. |
| 3. | The RMRP Metro District bond offering closed on April 15, 2021, raising total proceeds of approximately $65.2M. These bond proceeds will fund the public infrastructure costs of the Rail Park. Total Rail Park project cost have been budgeted at between $60M and $75M of which approximately 75% is considered public infrastructure and therefore not an obligation of the Company. The Company is responsible for the remaining approximately 25%. |
| 4. | Construction on the south parcels of the Rail Park (approximately 150 acres) began in April 2021. The Company has in place a construction loan facility of $12M to fund its portion of construction costs (i.e., those not funded with Metro District bond proceeds). |
| 5. | To date the Company has received approximately $2M as reimbursement of “pre-construction” costs that were incurred prior to the closing of the bond offering in April. |
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| 6. | In September 2021, the Company sold its water rights underlying the Rail Park, to the Metro District for approximately $5.9M. |
| 7. | In May 2022, the Company closed on a construction loan facility of $21M and a working capital facility of $2M to provide for its developer portion of the infrastructure costs of the Rail Park. |
Recently Issued Accounting Pronouncements
We do not expect the adoption of any recently issued accounting pronouncements to have a significant impact on our net results of operations, financial position, or cash flows.
Off-Balance Sheet Arrangements
We have no off-balance sheet arrangements.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
Not Required
Item 4. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
As of the end of the period covered by this report, we conducted an evaluation, under the supervision and with the participation of our Chief Executive Officer and Chief Financial Officer, of our disclosure controls and procedures (as defined in Rule 13a-15(e) and Rule 15d-15(e) of the Exchange Act). Based upon this evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were not effective due to the material weakness described below.
In light of the material weakness described below, we performed additional analysis and other post-closing procedures to ensure that our condensed consolidated financial statements were prepared in accordance with generally accepted accounting principles. Accordingly, we believe that the condensed consolidated financial statements included in this report fairly present, in all material respects, our financial condition, results of operations and cash flows for the periods presented.
Material Weakness and Related Remediation Initiatives
Our Chief Executive Officer and Chief Financial Officer have concluded that as of June 30, 2023, there was a material weakness in our internal control over financial reporting in that, due to budget constraints, the Company’s accounting department does not have sufficient accounting personnel (either in-house or external) necessary to ensure that complete and effective financial reporting controls are designed and implemented.
Remediation of Internal Control Deficiencies and Expenditures
We are developing a plan to address this material weakness, which includes hiring qualified accounting personnel and establishing a formal audit committee. We are uncertain at this time of the costs necessary to remediate the material weakness. Once implemented, remedial controls will have to be in place for at least several quarters before management is able to conclude that the material weakness has been remediated. We intend to continue to evaluate and strengthen our internal control over financial reporting systems. These efforts require significant time and resources. If we are unable to establish adequate internal control over financial reporting systems, we may encounter difficulties in the audit or review of our financial statements by our independent registered public accounting firm, which in turn may have a material adverse effect on our ability to prepare financial statements in accordance with GAAP and to comply with our SEC reporting obligations.
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Changes in Internal Control Over Financial Reporting
There were no changes in our internal control over financial reporting, as defined in Rule 13a-15(f) and 15d-15(f) under the Exchange Act, during the fiscal quarter ended June 30, 2023, that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
None.
Item 1A. Risk Factors
Not required.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
During the three months ended June 30, 2023, there were no sales of unregistered equity securities.
Item 3. Defaults Upon Senior Securities
None.
Item 4. Mine Safety Disclosures
Information regarding mine safety violations is included in Exhibit 95 to this quarterly report.
Item 5. Other Information
None.
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Item 6. Exhibits
Exhibit Number |
| Exhibit |
10.10* | ||
31.1 * | ||
31.2 * | ||
32.1 * | ||
32.2 * | ||
95* | ||
101.INS | Inline XBRL Instance Document | |
101.SCH | Inline XBRL Taxonomy Extension Schema Document | |
101.CAL | Inline XBRL Taxonomy Extension Calculation Linkbase Document | |
101.DEF | Inline XBRL Taxonomy Extension Definition Linkbase Document | |
101.LAB | Inline XBRL Taxonomy Extension Presentation Linkbase Document | |
101.PRE | Inline XBRL Taxonomy Extension Presentation Linkbase Document | |
104 | Cover Page Interactive Data File (formatted in Inline XBRL and contained in Exhibit 101) | |
* | Filed herewith |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
ROCKY MOUNTAIN INDUSTRIALS, INC. | ||
Date: August 8, 2023 | By: | /s/ Brian Fallin |
Brian Fallin | ||
Chief Executive Officer | ||
(Principal Executive Officer) | ||
Date: August 8, 2023 | By: | /s/ Brian H. Aratani |
Brian H. Aratani | ||
| Chief Financial Officer | |
(Principal Financial Officer and Principal Accounting Officer) | ||
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Exhibit 10.10
SECOND AMENDMENT TO LOAN AGREEMENT
AND OTHER LOAN DOCUMENTS
SECOND AMENDMENT TO LOAN AGREEMENT AND OTHER LOAN DOCUMENTS (this “Amendment”) dated as of July 28, 2023 (the “Modification Effective Date”), is by and among RAIL LAND COMPANY, LLC, a Colorado limited liability company (“Borrower”), ROCKY MOUNTAIN INDUSTRIALS, INC., a Nevada corporation (“Guarantor”), and PACIFIC WESTERN BANK, a California state-charted bank (together with its successors and assigns, “Lender”).
RECITALS
A.Borrower and Lender are parties to that certain Loan Agreement dated as of May 20, 2022 (the “Original Loan Agreement”) relating to (i) a construction loan from Lender in favor of Borrower in the original principal amount of Twenty-One Million and Noll 00ths Dollars ($21,000,000.00) (the “Construction Loan”); and (ii) a revolving line of credit facility from Lender in favor of Borrower in the original principal amount of Two Million and No/l00ths Dollars ($2,000,000.00) (the “Revolving Line of Credit”; together with the Construction Loan, the “Loans”).
B.The Construction Loan is evidenced by a Promissory Note dated May 20, 2022, from Borrower payable to Lender in the principal face amount of the Construction Loan (as amended, the “Construction Loan Note”). The Revolving Line of Credit is evidenced by a Promissory Note dated May 20, 2022, from Borrower payable to Lender in the principal face amount of the Revolving Line of Credit (as amended, the “Revolving Line of Credit Note”; together with the Construction Loan Note, the “Notes”).
C.The Original Loan Agreement and Notes are secured, in part, by, among other things, (i) a First Priority Deed of Trust, Assignment of Rents, Security Agreement, and Fixture Filing dated May 20, 2022, given by Borrower to the Public Trustee of Adams County, Colorado, for the use and benefit of Lender, and recorded on May 24, 2022 at Reception No. 2022000046135 of the real property records of Adams County, Colorado (the “Original First Priority Deed of Trust”); (ii) a Second Priority Deed of Trust, Assignment of Rents, Security Agreement, and Fixture Filing dated May 20, 2022 given by Borrower to the Public Trustee of Adams County, Colorado, for the use and benefit of Lender, and recorded on May 24, 2022 at Reception No. 2022000046137 of the real property records of Adams County, Colorado (the “Original Second Priority Deed of Trust”; together with the First Priority Deed of Trust, the “Original Deeds of Trust”); (iii) a First Priority Assignment of Leases and Rents executed by Borrower in favor of Lender, and recorded on May 24, 2022 at Reception No. 2022000046136 of the real property records of Adams County, Colorado (the “Original First Priority Assignment of Leases and Rents); and (iv) a Second Priority Assignment of Leases and Rents executed by Borrower in favor of Lender, and recorded on May 24, 2022 at Reception No. 2022000046138 of the real property records of Adams County, Colorado (the “Original Second Priority Assignment of Leases and Rents”; together with the Original First Priority Assignment of Leases and Rents, the “Original Assignments of Leases and Rents”).
D.The Loans are further secured, in part, by a Completion Guaranty and a Recourse Carve-Out Guaranty, each dated as of May 20, 2022, and each executed by Guarantor.
E.The Original Loan Agreement was amended pursuant to a First Amendment to Loan Agreement and other Loan Documents dated December 28, 2022 (the “First Amendment”; together with the Original Loan Agreement, the “Loan Agreement”), between and among Borrower, Lender and Guarantor pursuant to which the “County Parcel” defined and described in the Original Loan Agreement was added as additional collateral security for the Loans.
F.As part of the transactions contemplated by the First Amendment, (i) the Original First Priority Deed of Trust and Original First Priority Assignment of Leases and Rents were each modified to encumber the County Parcel pursuant to a First Amendment to First Priority Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing and First Priority Assignment of Leases and Rents dated December 28, 2022, and recorded December 28, 2022, at Reception No. 2022000099788 of the Records (the “First Amendment to First Priority Deed of Trust and Assignment of Leases and Rents”; together with the Original First Priority Deed of Trust and Original First Priority Assignment of Leases and Rents, as applicable, and any other amendments or modifications to such Original First Priority Deed of Trust and/or Original First Priority Assignment of Leases and Rents, respectively, the “First Priority Deed of Trust” and “First Priority Assignment of Leases and Rents”); and (ii) the Original Second Priority Deed of Trust and Original Second Priority Assignment of Leases and Rents were each modified to encumber the County Parcel pursuant to a First Amendment to Second Priority Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing and First Priority Assignment of Leases and Rents dated December 28, 2022, and recorded December 28, 2022, at Reception No. 202200099789 of the Records (the “First Amendment to Second Priority Deed of Trust and Assignment of Leases and Rents”; together with the Original Second Priority Deed of Trust and Original Second Priority Assignment of Leases and Rents, as applicable, and any other amendments or modifications to such Original Second Priority Deed of Trust and/or Original Second Priority Assignment of Leases and Rents, respectively, the “Second Priority Deed of Trust” (together with the First Priority Deed of Trust, the “Deeds of Trust”) and “Second Priority Assignment of Leases and Rents” (together with the First Priority Assignment of Leases and Rents, the “Assignments of Leases and Rents”)). Both Deeds of Trust and Assignments of Leases and Rents encumber the Property.
G.Borrower has requested certain modifications to the Loan Agreement, Notes, Deeds of Trust, Assignments of Leases and Rents and other Loan Documents, which, among other things, increase the principal face amount of the Construction Loan from $21,000,000.00 to $29,500,000.00, terminate the Revolving Line of Credit and provide for cancellation of the Revolving Line of Credit Note and termination and release of the Second Priority Deed of Trust and Second Priority Assignment of Leases and Rents, allow for limited repayment and reborrowing of the Construction Loan (subject to a cap on total borrowing and reborrowing of $38,000,000.00 in the aggregate), and extend the Initial Maturity Date of the Construction Loan to February 17, 2025.
H.Lender will not enter into the requested modifications of the Construction Loan unless Borrower executes and delivers this Amendment and the other documents contemplated
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in herein and pays, performs and observes its indebtedness, covenants, indemnities, duties, liabilities and obligations hereunder and thereunder, as applicable.
I.The Loan Agreement, Notes, Deeds of Trust, Assignments of Leases and Rents, BACA, Membership Interest Pledge, the Collateral Assignment of ICS Deposit Placement Agreement and Custodial Agreement of even date herewith from Borrower in favor of Lender (the “Collateral Assignment of JCS Agreements”), First Amendment, this Amendment, the “Loan Documents” defined and described in the Loan Agreement, and all other documents or instruments evidencing, securing or otherwise governing or pertaining to the Loans, together with any and all amendments, modifications, extensions, replacements or substitutions to any of the foregoing documents and instruments, are hereinafter collectively referred to as the “Loan Documents.”
J.Capitalized terms used herein but not defined herein shall have the meanings given them in the Loan Agreement and the other Loan Documents.
K.For all purposes of all of the Loan Documents, Borrower’s address has changed to 6200 South Syracuse Way, Suite 450, Denver, CO 80111.
NOW, THEREFORE, in consideration of Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1.ACKNOWLEDGEMENT OF RECITALS. The parties acknowledge and agree that the foregoing recitals are true, correct and accurate and are incorporated into this Amendment.
2.MODIFICATIO OF LOAN AGREEMENT. The Loan Agreement is amended from and after the Modification Effective Date as follows:
a.Section 1.25 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“1.25 “Collateral” means, individually or collectively, the Property encumbered by the Loan Documents in connection with the Loan (including, without limitation, the Project Improvements and any personal property associated therewith and the Account Collateral).
b.Section 1.37 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“1.37 “Construction Loan” means the Construction Loan in the maximum aggregate principal amount up to but not exceeding Twenty-Nine Million Five Hundred Thousand and No/100 Dollars ($29,500,000.00) to be made by Bank in favor of Borrower upon and subject to the terms and conditions of this Agreement and the other Loan Documents.”
c.Section 1.49 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“1.49 “Deed of Trust” means the First Priority Deed of Trust, as amended, modified, extended, supplemented or substituted from time to time.”
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d.Section 1.77 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“1.77 “Reserved.”
e.Section 1.89 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“1.89 “Initial Maturity Date” means February 17, 2025.”
f.Section 1.99 of the Loan Agreement is amended and restated in its entirety to read as follows:
“1.99 “Loan” means the Construction Loan.”
g.Section 1.103 of the Loan Agreement is amended and restated in its entirety to read as follows:
“1.103 Reserved.”
h.Section 1.104 of the Loan Agreement is amended and restated in its entirety to read as follows:
“1.104 Reserved.”
i.Section 1.107 of the Loan Agreement is amended and restated in its entirety to read as follows:
“1.107 “Membership Interest Pledge” means the Membership Interest Pledge and Security Agreement dated July 31, 2023, from Guarantor for the benefit of Bank, as it may be amended, modified, extended, renewed, restated or supplemented from time to time.”
J.Section 1.111 of the Loan Agreement is amended and restated in its entirety to read as follows:
“1.111 “Note” means the Construction Loan Note. If the term “Note” is used but not defined in any of the Loan Documents, and that Loan Document instead says such term has the meaning set forth in this Agreement, the “Note” will mean and refer to the Construction Loan Note.”
k.Section 1.129 of the Loan Agreement is amended and restated in its entirety to read as follows:
“1.129 “Reserved”.”.
l.Section 1.130 of the Loan Agreement is amended and restated in its entirety to read as follows:
“1.130 “Reserved”.”
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m.Section 1.131 of the Loan Agreement is amended and restated in its entirety to read as follows:
“1.131 “Reserved”.”
n.Section 1.134 of the Loan Agreement is amended and restated in its entirety to read as follows:
“1.134 “Reserved”.”
o.Section 1.135 of the Loan Agreement is amended and restated in its entirety to read as follows:
“1.135 “Reserved”.”
p.Section 1.145 of the Loan Agreement is amended and restated in its entirety to read as follows:
“1.145 Title Policy” means the ALTA 2006 loan policy of title insurance issued by the Title Company, which Title Policy shall have a liability limit of not less than the aggregate maximum amount of the Construction Loan (with regard to the First Priority Deed of Trust), (B) insures Bank’s interest under the First Priority Deed of Trust as a valid first or second lien on the Project, both at the date of Closing and as to all subsequent advances and readvances of the Construction Loan thereafter in accordance with and subject to the terms and conditions of the Loan Agreement and other Loan Documents; (C) are accompanied by such reinsurance and coinsurance agreements and endorsements as Bank may require in its sole discretion and (D) commit to delete the standard exceptions and contain as exceptions only the Permitted Encumbrances.
q.A new Section 1.150 is hereby added immediately following Section 1.149 of the Loan Agreement to read as follows:
“1.150 “Accounts” has the meaning set forth in Section 6.1 l(a).”
r.A new Section 1.151 is hereby added immediately following Section 1.150 of the Loan Agreement to read as follows:
“1.151 “Account Collateral” has the meaning set forth in Section 6.1 l(a).”
s.A new Section 1.152 is hereby added immediately following Section 1.151 of the Loan Agreement to read as follows:
“1.152 “BACA” means the Blocked Account Control Agreement- the Blocked Account Control Agreement dated July 31, 2023, between Borrower and Bank and executed in accordance with Section 6.11 hereof pursuant to which Borrower has granted “control”, in accordance with Articles 8 and 9 of the UCC, of the Account Collateral to Bank, as such Agreement may be amended modified, extended, renewed, restated or supplemented from time to time.”
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t.A new Section 1.153 is hereby added immediately following Section 1.152 of the Loan Agreement to read as follows:
“1.153 “Borrower Deposit Accounts” has the meaning set forth in Section 6.1l(a).”
u.A new Section 1.154 is hereby added immediately following Section 1.153 of the Loan Agreement to read as follows:
“1.154 “Other Borrower Depository Accounts” has the meanmg set forth m Section 6.1 l(a).”
v.A new Section 1.155 is hereby added immediately following Section 1.154 of the Loan Agreement to read as follows:
“1.155 “ICS Agreement” means any rntraFi Cash Service CDARS Deposit Placement Agreement, res Deposit Placement Agreement, or other predecessor agreement pertaining to the rntraFi Cash Service of rntraFi Network LLC or any successor thereto executed by and between Borrower and Bank with regard to the Deposit Accounts and/or Related Entitlements (as such terms are defined in the res Agreement) for or in connection with any Borrower Deposit Account, as such Agreement may be amended modified, extended, renewed, restated or supplemented from time to time.”
w.A new Section 1.156 is hereby added immediately following Section 1.155 of the Loan Agreement to read as follows:
“1.156 “Interest Reserve Minimum Balance” has the meaning set forth in Section 2.6.”
x.A new Section 1.157 is hereby added immediately following Section 1.156 of the Loan Agreement to read as follows:
“1.157 “Maximum Borrowing Amount” means the total aggregate amount during the term of the Construction Loan and any permitted extensions thereof of all borrowings and reborrowings of the Construction Loan under and pursuant to this Agreement, the Construction Loan Note and other Loan Documents and which in no event shall ever exceed, in the aggregate, sum of $38,000,000.00.”
y.A new Section 1.158 is hereby added immediately following Section 1.157 of the Loan Agreement to read as follows:
“1.158 “Maximum Reborrowing Amount” means the total aggregate amount during the term of the Construction Loan and any permitted extensions thereof of all reborrowings of the Construction Loan under and pursuant to this Agreement, the Construction Loan Note and other Loan Documents and which in no event shall ever exceed, in the aggregate, the sum of $8,500,000.00.”
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z.A new Section 1.159 is hereby added immediately following Section 1.158 of the Loan Agreement to read as follows:
“1.159 “UCC” means the Colorado Uniform Commercial Code, as amended from time to time.”
aa.Section 2.1 and Subsections 2.1(a) and 2.1(b) of the Loan Agreement are hereby amended and restated in their entirety to read as follows:
“2.1The Loan.
(a)Amount of the Loan. In reliance upon Borrower’s representations and warranties, subject to the terms and conditions of this Agreement and the Loan Documents, and for the purposes set forth herein, Bank agrees to loan to Borrower the following:
(i)Construction Loan. With respect to the Improvements, a sum of money in the maximum principal amount not to exceed the least of the following:
(A)$29,500,000.00;
(B)An amount equal to fifty percent (50%) of the “as-complete” value of the Property with only the Improvements, as determined pursuant to the Appraisal submitted to Bank pursuant to Section Error! Reference source not found., and
(C)the amount equal to fifty-five percent (55%) of the cost items set forth in the Construction Budget for the construction of the Phase 1 Improvements.
(b)Character of Loan. The Construction Loan is a revolving multiple advance loan and amounts advanced under the Construction Loan may be borrowed, repaid and reborrowed, in each case upon and subject to the terms and conditions of this Agreement and the other Loan Documents; provided, however, that in no event may (i) the total amount of all borrowings and re-borrowings of the Construction Loan at all times during the term of the Construction Loan and any permitted extension thereof ever exceed, in the aggregate, the Maximum Borrowing Amount; (ii) the total amount of all reborrowings of the Construction Loan at all times during the term of the Construction Loan and any permitted extension thereof ever exceed, in the aggregate, the Maximum Reborrowing Amount; and (iii) the maximum outstanding principal balance of the Construction Loan ever exceed $29,500,000.00.”
bb.Section 2.6 of the Loan Agreement and each Subsection thereof is hereby amended and restated in its entirety to read as follows:
“2.6 Interest Reserve. Included in the Construction Budget for the Construction Loan is a reserve for interest in the total amount of $3,500,000.00 (the “Interest Reserve”) to be fully funded by June 30, 2024 as follows: (i) $1,000,000.00 will be funded out of principal of the Construction Loan at closing of the Second Amendment to Loan Agreement and other Loan
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Documents dated July 31, 2023, between and among Borrower, Guarantor and Bank, (ii) $1,000,000.00 will be funded out of principal of the Construction Loan by December 31, 2023, (iii) $1,000,000.00 will be funded out of Borrower’s other resources by December 31, 2023 inclusive of any payments to the Interest Reserve pursuant to Section 2.9(d) below, and (iv) the remaining $500,000.00 will be funded by Borrower out of sales proceeds from the closing of the sale of any Lot and/or out of Borrower’s other resources by June 30, 2024. Borrower’s failure to fully fund the Interest Reserve on or before June 30, 2024, shall constitute an immediate Event of Default. Notwithstanding the foregoing or anything herein to the contrary, the Interest Reserve shall have a minimum balance of $190,000.00 (the “Interest Reserve Minimum Balance”) during the term of the Loan. Borrower’s failure to maintain the Interest Reserve Minimum Balance shall constitute an immediate Event of Default. The Interest Reserve will be retained by Bank, and so long as no Default or Event of Default is continuing, and as more particularly set forth in the Construction Loan Note, funds from the Interest Reserve will be disbursed as follows:
(a)During the period commencing on the Effective Date and continuing until the Initial Maturity Date, Bank shall, to the extent same are available in excess of the Interest Reserve Minimum Balance, on each payment date under the Construction Loan Note, advance such funds from the Interest Reserve as are necessary to make the required interest payments under the Construction Loan Note. If extended pursuant to this Agreement, beginning on the first day following the Initial Maturity Date and at all times thereafter if extended pursuant to this Agreement, so long as adequate funds remain in the Interest Reserve to make interest-only payments on the outstanding principal balance of the Construction Loan in excess of the Interest Reserve Minimum Balance, such funds from the Interest Reserve may be used to make such interest-only payments. In the event such funds are insufficient to make such interest-only payments, Borrower shall deposit funds from its other resources into such Interest Reserve in an amount sufficient, in Bank’s reasonable judgment, to fund the Interest Reserve for the applicable Extension Term. In no event shall any principal of the Construction Loan be used to fund such Interest Reserve during any Extension Term.
Bank will make the advances contemplated in this Section 2.6 without any further direction, and notwithstanding any direction to the contrary, from Borrower. In the event the Interest Reserve is insufficient to cover any monthly payment of interest on the Construction Loan, Borrower shall be required to make the monthly interest payments in accordance with the terms of the Construction Loan Note.”
cc.Section 2.8 of the Loan Agreement and each Subsection thereofis hereby amended and restated in its entirety to read as follows:
“2.8 Security Interest As additional security for the Secured Obligations, Borrower hereby pledges, assigns, transfers and grants to Bank a security interest in, a lien on and an express contractual right to set off against (or refuse to allow withdrawals from) all depository account balances, cash and any other property (tangible or intangible) of Borrower now or hereafter in the possession of Bank, including, without limitation, (i) all amounts that might at any time be held in the Borrower Deposit Accounts established and maintained from time to time by Borrower at Bank in accordance with Section 6.11 hereof,
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and all funds at any time placed in any such Borrower Deposit Accounts, (ii) all other Account Collateral defined and described in Section 6.11 hereof, and (iii) any other portion of the Loans that might at any time not have been advanced to Borrower. Bank may, at any time upon and during the occurrence and continuance of an Event of Default, set off against the Secured Obligations, whether or not the Secured Obligations (including future payment installments) are then due or have been accelerated, all without any advance or contemporaneous notice or demand of any kind to Borrower, such notice and demand being expressly waived by Borrower. During the occurrence and continuance of an Event of Default, Bank shall have such rights with respect to all of such funds, property and other Account Collateral as are provided by this Agreement, the other Loan Documents or applicable law and may apply such funds, property and other Account Collateral towards the satisfaction of the Secured Obligations. No such application by Bank of such funds, property and other Account Collateral shall cure or be deemed to cure any Event of Default or limit in any respect any of Bank’s remedies under the Loan Documents. No delay or omission of Bank in exercising any right to apply such funds, property or other Account Collateral shall impair any such right, or shall be construed as a waiver of, or acquiescence in, any Event of Default. At the request of Bank, Borrower shall execute and deliver from time to time such documents as may be necessary or appropriate, in Bank’s sole judgment, to assure Bank that it has a first priority perfected security interest in and lien on such funds, property and other Account Collateral.”
dd.Section 2.9 of the Loan Agreement and each Subsection thereofis hereby amended and restated in its entirety to read as follows:
“2.9Partial Releases of Deeds of Trust. Bank, at Borrower’s sole cost and expense, shall execute partial releases of the Deed of Trust to facilitate sales of portions of the Property developed or to be developed, financed with proceeds of the Construction Loan (each a “Lot”) upon and subject to the following terms, provisions, and conditions:
In connection with any sale of a Lot while any portion of the Construction Loan remains outstanding, Bank shall execute and deliver a partial release of the First Priority Deed of Trust, provided the following conditions have been satisfied;
(a)No Event of Default then exists or is outstanding under this Agreement, the Construction Loan Note, or other Loan Documents;
(b)Borrower provides Bank with written notice of such pending sale at least fifteen (15) days prior to the proposed closing date, together with a draft closing settlement statement and copy of the fully executed purchase and sale agreement (including any amendments thereto) for such Lot;
(c)Title Company has issued a proforma 110.5 or other appropriate endorsement to the Title Policies insuring the liens of the Deeds of Trust, as modified by such partial releases thereof, and is committed to issuing such endorsement upon Borrower’s payment of all endorsement premiums and recording fees;
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(d)Subject to the terms, conditions and limitations of this Section 2.9(d), ninety percent (90%) of the Net Sales Proceeds (hereinafter defined) from such Lot sale are applied towards repayment of the Construction Loan; provided, however, that, anything to the contrary contained herein notwithstanding: (i) during the occurrence and continuance of an Event of Default and provided Bank has elected to permit the sale of a Lot and grant a partial release of the Deed of Trust with regard to same despite the occurrence and continuance of such Event of Default (which Bank is under no obligation to agree to or permit), one hundred percent (100%) of the Net Sales Proceeds from any such Lot sale shall be applied towards repayment of the Construction Loan; (ii) eighty-five percent (85%) of the Net Sales Proceeds resulting from the sale of Lots 2, 3 and 4 of the Property (the “East Campus Lots”) to East Campus LLC, as purchaser (“East Campus”), pursuant to a purchase and sale agreement between Borrower, as seller, and such purchaser, shall be applied towards repayment of the Construction Loan; (iii) Seven Hundred Fifty Thousand and No/lO0th Dollars ($750,000.00) of the Net Sales Proceeds resulting from the sale of the East Campus Lots to East Campus shall be deposited into the Interest Reserve; (iv) seventy-five percent (75%) of the Net Sales Proceeds resulting from the sale of Lot 5 of the Property (“Lot 5”) shall be applied towards repayment of the Construction Loan; (v) Two Hundred Fifty Thousand and No/lO0th Dollars ($250,000.00) of the Net Sales Proceeds resulting from the sale of Lot 5 shall be deposited into the Interest Reserve; and (v) in no event shall Bank be obligated to partially release the liens of the Deed of Trust and other Loan Documents as to any Lot sold (whether it be the East Campus Lots, Lot 5, or otherwise) if the Net Sales Proceeds resulting from such Lot(s) sale is less than One Hundred Fifty-One Thousand and No/lO0th Dollars ($151,000.00) per acre (the “Minimum Per Acre Sales Price”); and
(e)Borrower pays all title insurance premiums, recording fees, Bank’s reasonable attorneys’ fees and other costs and expenses incurred by Bank in processing and preparing such partial release of the Deeds of Trust.
As used herein, the term “Net Sales Proceeds” means one hundred percent (100%) of the gross sales price for such Lot, less (i) a total combined broker’s commission in an amount not to exceed eight percent (8%), in the aggregate, of the gross sales price of such Lot, which commission shall be payable to a licensed real estate broker unaffiliated with Borrower or its affiliates; (ii) any Borrower’s required contribution to the Interest Reserve; and (iii) other reasonable and customary closing costs, including title insurance premiums, attorney’s fees, closing fees and recording fees, paid in connection with such closing.”
ee.Section 2.10 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“2.10 Reserved.”
ff.Section 6.11 of the Loan Agreement and each Subsection thereof is hereby amended and restated in its entirety to read as follows:
“6.11 Borrower Deposit Accou.nts; Security Agreement
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(a)Borrower has opened with Bank and will continuously maintain there, all depository and other accounts necessary for construction of the Improvements and operation ofits business, including, without limitation, the accounts described in Exhibit D attached hereto (collectively, the “Borrower Deposit Accounts”). Borrower hereby grants to Bank, as additional security for the Secured Obligations, a first lien security interest in and to and collateral assignment of all of the following property, rights and interests (collectively, the “Account Collateral”):
(i)the Borrower Deposit Accounts and all other depository accounts established and maintained by Borrower at Bank from time to time, whether for Reserves, pursuant to this Agreement or any of the other Loan Documents, or otherwise (collectively, the “Other Borrower Depository Accounts”; together with the Borrower Deposit Accounts, the “Accounts”);
(ii)the funds now or hereafter held in the Accounts established by Borrower at Bank (including, without limitation, all federal wire transfers of funds and all cash, checks, drafts, and other instruments now or hereafter deposited in the Accounts);
(iii)Borrower’s interest in the Sweep Investment defined and described in the BACA and in all rights related thereto and in all security accounts (as defined in Article 8 of the UCC) resulting from or arising out of the Accounts and/or Sweep Investment;
(iv)all Deposit Accounts, Related Entitlements and the Custodial Account (as such terms are d fined or described in the ICS Agreement or in the Custodial Agreement attached to the ICS Agreement and defined therein) and in all funds from time to time on deposit in the Custodial Account pursuant to the ICS Agreement or Custodial Agreement;
(v)all other security entitlements and other financial assets, as such terms are defined in Article 8 of the UCC, in each case related to, arising out of, resulting from or created in connected with the Accounts, Sweep Investment, Deposit Accounts, Related Entitlements, Custodial Account and/or any of the other property, rights and interests described in clauses (i) through (iv) of this Section 6(a);
(vi)all general intangibles, payment intangibles, investment property, instruments, documents and chattel paper (as such terms are defined in Article 9 of the UCC) in each case related to, arising out of, resulting from or created in connected with the Accounts, Sweep Investment, Deposit Accounts, Related Entitlements and/or any of the other property, rights and interests described in clauses (i) through (v) of this Section 6(a); and
(vii)all proceeds and products of and accessions, substitutions and replacements to such Accounts, the Deposit Accounts, Related Entitlements and the other rights, property and interests described in clauses (i) through (vi) of this
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Section 6(a), in whatever form and wherever located or maintained, whether with Bank, any other depository bank or any securities intermediary (as defined in Article 8 of the UCC.
(b)The Account Collateral is subject to Lender’s control in accordance with the BACA and is subject to all of the terms, covenants and conditions of the BACA and the terms, covenants and conditions of the ICS Agreement and Custodial Agreement.
(c)Borrower agrees that from time to time, at the sole expense of Borrower, Borrower shall promptly execute and deliver all further instruments and documents, and take all further action that may be necessary or desirable, or that Bank may reasonably request, in order to perfect and protect any security interest granted or purported to be granted by this Agreement (including, without limitation the security interest granted pursuant to this Section 6.11) to enable Bank to exercise and enforce its rights and remedies under this Agreement with respect to any Account Collateral.
(d)Borrower, by this Agreement authorizes Bank to file one or more financing or continuation statements and amendments thereto relating to all or any part of the Account Collateral, without the signature of Borrower to the extent permitted by law. A copy of this Agreement shall be sufficient as a financing statement to the extent permitted by law.
(e)Borrower will furnish to the Lender from time to time statements and schedules further identifying and describing the Account Collateral and such other reports in connection with the Account Collateral as Bank may reasonably request from time to time, all in reasonable detail.
(f)Upon the occurrence of any Event of Default, in addition to all other rights and remedies available to Bank under this Agreement, Bank shall have and may exercise from time to time any of the rights and remedies afforded to a secured party under the UCC or as in effect in any other State where any Account Collateral is located and otherwise available under any other applicable law, all of which rights and remedies shall be cumulative, and none of which shall be exclusive. Additionally, and without limiting the foregoing:
(i)Bank shall have the right to take immediate possession of the Account Collateral, and (A) to require Borrower to assemble the Account Collateral, at Borrower’s expense, and make it available to Bank at a place designated by Bank which is reasonably convenient to both parties, and (B) to enter any of the premises of Borrower or wherever any of the Account Collateral shall be located, and to keep and store the same on such premises until sold or otherwise realized upon (and if such premises are the property of Borrower, Borrower agrees not to charge Bank for storage thereof);
(ii)Bank shall have the right to sell or otherwise dispose of all or any Account Collateral at public or private sale or sales, with such notice as may be required by law, all as Bank, in its sole discretion, may deem advisable. Borrower
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agrees that ten (10) days’ written notice to Borrower of any public or private sale or other disposition of such Account Collateral shall be reasonable notice thereof, and such sale shall be at such locations as Bank may designate in such notice. Bank shall have the right to conduct such sales on Borrower’s premises, without charge therefor. All public or private sales may be adjourned from time to time in accordance with applicable law. Bank shall have the right to sell, lease or otherwise dispose of such Account Collateral, or any part thereof, for cash, credit or any combination thereof, and Bank may purchase all or any part of such Account Collateral at public or, if permitted by law, private sale and, in lieu of actual payment of such purchase price, may set off the amount of such price against the Secured Obligations; and
(iii)Bank shall have and Borrower grants to Bank a full right of set-off with respect to any Account Collateral, including, without limitation, all or any portion of the funds on deposit in the Borrower Deposit Accounts and any and all interest accrued thereon, if any. Bank may, to the maximum extent permissible by law, apply any or all of the funds in the Borrower Deposit Accounts or otherwise constituting any of the Account Collateral, including accrued interest, if any, toward the unpaid balance of the Secured Obligations or to any other amounts which may be due and owing under the Loan Documents. Bank shall at all times have “control” of the Borrower Deposit Accounts and other Account Collateral for purposes of maintaining its first and prior perfected security interest therein.”
gg.A new Section 6.29 is hereby added at the end of Article 6 of the Loan Agreement to read as follows:
“6.29 Execution of Collateral Assignment of Purchase Contracts. No later than fifteen (15) days following Borrower’s execution of any Purchase Contract for a Lot at the Property in accordance with this Agreement and the other Loan Documents Borrower shall provide Lender a fully executed copy of such Purchase Agreement and shall execute and deliver to Lender a Collateral Assignment of such Purchase Contract in form and content and on terms acceptable to Lender in its discretion.”
hh.The reserve account information appearing on Exhibit D to the Loan Agreement is hereby amended in its entirety to read as follows:
“Reserves. Any Reserve account opened pursuant to the terms of this Agreement, including, without limitation, Account No. 1002715793 established at Pacific Western Bank, which is subject to a Blocked Account Control Agreement dated July 28, 2023, between and among Borrower, Bank, as lender, and Bank, as depository bank.”
ii.All references to the term “Assignments of Leases and Rents” appearing in the Loan Agreement and other Loan Documents are amended to mean and refer to the First Priority Assignment of Leases and Rents.
jj.All references to the term “Deeds of Trust” appearing in the Loan Agreement and other Loan Documents are amended to mean and refer to the First Priority Deed of Trust.
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kk.All references to the term “Loans” appearing in the Loan Agreement and other Loan Documents are amended to mean and refer to the Construction Loan.
ll.All References to the term “Note” or “Notes” appearing in the Loan Agreement and other Loan Documents are amended to mean and refer to Construction Loan Note.
mml.All references to the term “Title Policies” appearing in the Loan Agreement and other Loan Documents are hereby amended to mean and refer to the “Title Policy” defined and described in Section 1.145 of the Loan Agreement, as modified hereby.
nn.All references to the terms “First Lot PSA”, “Lot 1la”, “Lot 1la PSA”, “Revolving Line of Credit”, “Revolving Line of Credit Promissory Note”, “Revolving Line of Credit Termination Date”, “Second Priority Assignment of Leases and Rents” and “Second Priority Deed of Trust” appearing in the Loan Agreement and other Loan Documents are hereby deleted.
3.CONDITIONS PRECEDENT. In addition to any other conditions set forth in this Amendment, each of the following are conditions precedent to the effectiveness of this Amendment:
a.The absence of any Event of Default under the Construction Loan Note, First Priority Deed of Trust, Loan Agreement, or any of the other Loan Documents nor the existence of any fact, circumstance, or condition that with the passage of time, the giving of notice or both would become and Event of Default under any of the Loan Documents.
b.Borrower shall have executed and delivered to Lender in recordable form a second amendment to the First Priority Deed of Trust and First Priority Assignment of Leases and Rents in form and substance acceptable to Lender in its discretion.
c.Borrower shall have caused Guarantor to execute and deliver to Lender a Membership Interest Pledge and Security Agreement of even date herewith in favor of Lender pursuant to which Guarantor assigns and transfers its rights to, and grants to Lender a first priority security interest in, Guarantor’s 100% membership interest in Borrower, together with such assignments, blank share certificate powers, UCC filings and otherwise in form and substance acceptable to Lender in its discretion.
d.Borrower shall have executed and delivered to Lender assignment of the East Campus PSA, each in form and substance acceptable to Lender in its discretion.
e.Borrower shall have executed and delivered to Lender the BACA and Collateral Assignment of ICS Agreements, each in form and substance acceptable to Lender in its discretion and, in connection therewith, obtained any required consents in form and substance acceptable to Lender in its discretion.
f.Borrower shall cause the Title Company to issue date down, mortgage priority and revolving advance endorsements to the Title Policy, each in form and content acceptable to Lender in its discretion, insuring the continuing priority of the liens of the First Priority Deed of Trust, as so modified.
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g.Borrower shall have delivered a legal opinion of Borrower’s and Guarantor’s counsel in form and content acceptable to Lender in its discretion opining as to the Borrower’s and Guarantor’s formation, power and authority, due authorization to execute, deliver and perform their respective obligations under this Agreement and the other documents and instruments executed in connection therewith and the enforceability of the same against such parties.
h.Borrower shall pay all of Lender’s attorneys’ fees, title insurance premiums, recording and filing fees, and other costs and expenses incurred by Lender in negotiating, documenting and closing such Loan Document modifications.
i.Such other conditions to closing the transactions described herein as Lender may reasonably require.
4.MODIFICATION OF OTHER OAN DOCUMENTS. The other Loan Documents are also hereby modified in all respects necessary to give effect to the modifications set forth in Section 2 of this Amendment, and only in such respects, and the provisions of this Amendment shall control over any contrary or inconsistent provisions of any of the other Loan Documents. In all other respects, all Loan Documents shall remain in full force and effect as originally written or previously modified by mutual written agreement of the parties. All liens, security interests, priorities, rights, and remedies under the Loan Documents shall continue in full force and effect as security for the Loan following the modification thereof by this Amendment. Without limiting the generality of the foregoing, all of the Property described in the First Priority Deed of Trust and the other Loan Documents shall remain in all respects subject to the lien, charge and encumbrance of the First Priority Deed of Trust and other Loan Documents. Nothing in this Amendment shall be deemed to or shall in any manner prejudice or impair any of the Loan Documents or any security granted or held by Lender for the Loans or the original priority of the First Priority Deed of Trust or any of the other Loan Documents. All references in any Loan Document to any other Loan Document shall hereafter be construed to refer to such other Loan Document as modified by this Amendment. For all purposes of all Loan Documents and this Amendment, this Amendment shall be included within the definition of the term “Loan Documents”.
5.REPRESENTATJONS OF BORROWER. Borrower hereby represents and warrants to Lender as of the Modification Effective Date as follows:
a.Formation. Authorization and Good Standing. Borrower is duly formed, validly existing and in good standing under the laws of the State of its formation. Borrower has the power and requisite authority to execute, deliver and perform its obligations under this Amendment and any other document executed in connection herewith and is duly authorized to, and has taken all action necessary to authorize it to, execute, deliver, and perform its obligations under this Amendment and the other Loan Documents. This Amendment has been duly executed and delivered on behalf of Borrower.
b.Valid and Binding Obligations. This Amendment and the Loan Documents, as modified herein, constitute the legal, valid, and binding obligations of Borrower enforceable against Borrower in accordance with their respective terms.
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c.No Material Change. There has been no material adverse change in the financial condition of Borrower or any other person whose financial statement has been delivered to Lender in connection with the Loans from the most recent financial statement received by Lender.
d.Representations and Warranties Accurate. Each of the representations and warranties of Borrower in the Loan Documents are accurate as of the date hereof.
e.Consents, Etc. No consent, approval, authorization or order of any court or governmental authority, agency or any third party is required in connection with the execution and delivery by Borrower of this Amendment or to consummate the transactions contemplated hereby, which consent has not been obtained.
f.No Amendments. There have been no amendments, modifications, or other changes to the organizational documents of Borrower since the date of the closing of the Loans.
g.Status of Loan. No Event of Default nor any fact, event, or circumstance that, with the passage of time, the giving of notice or both would become an Event of Default has occurred or is continuing.
h.No Claims or Offsets. Borrower has no claims, counterclaims, defenses, or set-offs with respect to the Loans or the Loan Documents as modified herein.
6.REPRESENTATIONS OF GUARANTOR. Guarantor hereby represents and warrants to Lender as of the Modification Effective Date as follows:
i.Valid and Binding Obligations. This Amendment and the Loan Documents, as modified herein, constitute the legal, valid, and binding obligations of Guarantor enforceable against Guarantor in accordance with their respective terms.
j.No Material Change. There has been no material adverse change in the financial condition of Guarantor or any other person whose financial statement has been delivered to Lender in connection with the Loans from the most recent financial statement received by Lender.
k.Representations and Wru.Tanties Accurate. Each of the representations and warranties of Guarantor in the Loan Documents are accurate as of the date hereof,
1.Consents, Etc. No consent, approval, authorization or order of any court or governmental authority, agency or any third party is required in connection with the execution and delivery by Guarantor of this Amendment or to consummate the transactions contemplated hereby, which consent has not been obtained.
m.Status of Loan. No Event of Default nor any fact, event, or circumstance that, with the passage of time, the giving of notice or both would become an Event of Default has occurred or is continuing.
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n.No Claims or Offsets. Guarantor has no claims, counterclaims, defenses, or set- offs with respect to the Loans or the Loan Documents as modified herein.
7.REAFFIRJvlATIONS OF BORROWER. As of the Modification Effective Date, Borrower hereby (i) ratifies, confirms and reaffirms each of its obligations under the Loan Documents (the “Borrower Obligations”) and confirms and reaffirms that such Borrower Obligations, and all waivers, representations, covenants and agreements by the Borrower in the Loan Documents are unaffected by the making and entering into this Amendment and/or any other documents or instruments executed in connection with this Amendment and that the same remain in full force and effect for the benefit of Lender, (ii) confirms and reaffirms its continuing liability for payment and/or performance of all of the Borrower Obligations, without any defense or offset whatsoever, to the same extent as if Borrower had executed and delivered the Loan Documents again on the Modification Effective Date, and (iii) confirms that such Borrower Obligations have not been modified or amended and that Borrower’s liabilities under such Borrower Obligations have not been limited, impaired or affected in any manner by any existing or previous event, fact or circumstance. It is the express intent of Borrower that no novation of the Loans or any of the terms or provisions thereof shall be created by virtue of the making and entering into of this Amendment or any documents or instruments executed in connection herewith. Borrower further acknowledges that Lender is relying on the confirmations, reaffirmations and other statements and agreements made in this Section VII in amending the Loans as described herein.
8.CONSENT AND REAFFIRMATIONS OF GUARANTOR. As of the Modification Effective Date, Guarantor hereby (i) consents and agrees to the modification of the Loan as described herein and all other matters contained this Amendment, (ii) ratifies, confirms and reaffirms each of its obligations under the Loan Documents (the “Guarantor Obligations”) and confirms and reaffirms that such Guarantor Obligations, and all waivers, representations, covenants and agreements by the Guarantor in the Loan Documents are unaffected by the making and entering into this Amendment and/or any other documents or instruments executed in connection with this Amendment and that the same remain in full force and effect for the benefit of Lender, (iii) confirms and reaffirms its continuing liability for payment and/or performance of all of the Guarantor Obligations, without any defense or offset whatsoever, to the same extent as if Guarantor had executed and delivered the Loan Documents again on the Modification Effective Date, and (iv) confirms that such Guarantor Obligations have not been modified or amended and that Guarantor’s liabilities under such Guarantor Obligations have not been limited, impaired or affected in any manner by any existing or previous event, fact, or circumstance. It is the express intent of Guarantor that no novation of the Loans or any of the terms or provisions thereof shall be created by virtue of the making and entering into of this Amendment or any documents or instruments executed in connection herewith. Guarantor further acknowledges that Lender is relying on the confirmations, reaffirmations and other statements and agreements made in this Section VIII in amending the Loans as described herein.
9.SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and shall inure to the benefit of each of the parties hereto and their respective successors and assigns.
10.RATIFICATION. Except as amended hereby, the Loan Agreement and the other Loan Documents are hereby ratified and confirmed and shall continue in full force and effect.
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11.GOVERNING LAW. This Amendment shall be deemed to be a contract entered into pursuant to the laws of the State of Colorado and shall in all respects be governed, construed, applied and enforced in accordance with the laws of the Colorado (without regard to conflict of law provisions thereof).
12.MISCELLANEOUS. All references in any Loan Document to the Loan Agreement shall, from and after the date hereof, mean the Loan Agreement, as amended by this Amendment (as the same may further be amended, restated, replaced, severed, split, supplemented, or otherwise modified from time to time). Borrower and Guarantor each hereby agrees to execute and deliver to Lender, and authorize the filing and/or recording by Lender of, any and all further documents and instruments required by Lender to effectuate the modifications contemplated by this Amendment, to create, perfect and/or modify the liens and security interests granted to Lender under the Loan Documents and/or to give effect to the terms and provisions of this Amendment. If any one or more of the provisions of this Amendment are deemed unenforceable, the remainder of this Amendment shall remain enforceable in accordance with its original terms to the fullest extent possible.
13.COUNTERPARTS. This Amendment may be executed in multiple counterparts, each of which shall constitute an original, but all of which shall constitute one original. This Amendment shall become effective when all parties hereto have executed a counterpart hereof. The parties to this Amendment may exchange signatures via facsimile or electronic mail, and signatures so delivered shall have the same force and effect as an original signature.
14.COSTS AND EXPENSES. Borrower hereby agrees to pay any and all fees, costs and expenses, including attorneys’ fees incurred by Lender in connection with the negotiation, preparation, filing and/or recording of this Amendment and all other documents and instruments executed pursuant to this Amendment and/or to create, perfect or modify the liens, security interests, assignments and/or pledges contemplated hereunder.
15.RELEASE AND TERMINATION OF 1v1EMBERSHIP INTEREST PLEDGE. Upon satisfaction of the conditions to this Amendment set forth in Section III hereof, Lender hereby releases and terminates the Membership Interest Pledge and Lender shall return to Borrower any blank membership interest powers previously executed in favor of Lender in connection with such Membership Interest Pledge. Borrower shall pay the cost of all filing and recording fees necessary to terminate any UCC filings previously made in connection with such Membership Interest Pledge.
16.RELEASES AND INDEMNIFICATIONS. As an inducement to Lender to enter into this Amendment, Borrower and Guarantor each hereby jointly and severally:
o.release and forever discharge Lender and its predecessors in interest, affiliates, subsidiaries, participants or assigns, and all of their respective past, present and future shareholders, member, officers, directors, agents, employees, managers, advisors, servicers, attorneys, and representatives, successors and assigns (such parties being collectively called the “Released Parties”), from any and all actions, causes of action, claims, demands and liabilities of every kind, character and description, which Borrower and/or Guarantor may now have or may hereafter have or wish to assert against the Released Parties and arising under or in connection
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with, or related to, the negotiation of this Amendment, the Loans or the Loan Documents, whether known or unknown by Borrower or Guarantor (all of the foregoing released claims are sometimes referred to as the “Released Claims”);
p.agree to indemnify the Released Parties for, hold the Released Parties harmless from and against, and undertake the defense of the Released Parties with respect to, all Released Claims that be may asserted with respect to any of the Released Claims, despite the existence of the releases granted by the Borrower or Guarantor herein;
q.acknowledge that Lender would not agree to execute this Amendment without the foregoing release and indemnification, and therefore, that such release and indemnification has been given in return for good and valuable consideration; and
r.acknowledge that the release set forth in this Section is intended to bar, among other things, any counterclaims (other than compulsory counterclaims) or seto:ffs which Borrower and/or Guarantor may now or at any time hereafter wish to assert against Lender as a defense to any of Borrower’s or Guarantor’s obligations under the Loan Documents.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their duly authorized representatives, all as of the day and year first above written.
| BORROWER: | |
| | |
| RAIL LAND COMPANY, LLC, a Colorado | |
| limited liability company | |
| | |
| | |
| By: Rocky Mountain Industrials, Inc., a Nevada | |
| corporation, its Sole Member | |
| | |
| By: | /s/ BRIAN FALLIN |
| Name: | BRIAN FALLIN |
| Title: | CEO |
| | |
| | |
| LENDER: | |
| | |
| PACIFIC WESTERN BANK, | |
| a California state-chartered bank | |
| | |
| | |
| By: | |
| Name: | |
| Title: | |
| | |
| | |
| | |
| GUARANTOR: | |
| | |
| | |
| ROCKY MOUNTAIN INDUSTRIALS, INC., | |
| a Nevada corporation | |
| | |
| | |
| By: | /s/ BRIAN FALLIN |
| Name: | BRIAN FALLIN |
| Title: | CEO |
SIGNATURE PAGE TO SECOND AMENDMENT TO LOAN AGREEMENT AND OTHER
DOCUMENTS
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their duly authorized representatives, all as of the day and year first above written.
| BORROWER: | |
| | |
| RAIL LAND COMPANY, LLC, a Colorado | |
| limited liability company | |
| | |
| | |
| By: Rocky Mountain Industrials, Inc., a Nevada | |
| corporation, its Sole Member | |
| | |
| By: | |
| Name: | |
| Title: | |
| | |
| | |
| LENDER: | |
| | |
| PACIFIC WESTERN BANK, | |
| a California state-chartered bank | |
| | |
| | |
| By: | /s/ ROBERT CRISE |
| Name: | ROBERT CRISE |
| Title: | SVP - LENDING |
| | |
| | |
| GUARANTOR: | |
| | |
| | |
| ROCKY MOUNTAIN INDUSTRIALS, INC., | |
| a Nevada corporation | |
| | |
| | |
| By: | |
| Name: | |
| Title: | |
SIGNATURE PAGE TO SECOND AMENDMENT TO LOAN AGREEMENT AND OTHER
DOCUMENTS
Exhibit 31.1
CERTIFICATION PURSUANT TO
EXCHANGE ACT RULES 13a-14(a) AND 15d-14(a)
AS ADOPTED PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Brian Fallin, certify that:
1. | I have reviewed this Quarterly Report of Rocky Mountain Industrials, Inc. for the period ended June 30, 2023. |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report; |
4. | The Registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Registrant and have: |
(a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its subsidiaries, is made known to us by others within those entities, particularly during the period in which the report is being prepared; |
(b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
(c) | Evaluated the effectiveness of the Registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
(d) | Disclosed in this report any change in the Registrant’s internal control over financial reporting that occurred during the Registrant’s most recent fiscal quarter (the Registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrant’s internal control over financial reporting; and |
5. | The Registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant’s auditors and the audit committee of the Registrant’s board of directors (or persons performing the equivalent functions): |
(a) | All significant deficiencies and material weaknesses in the design of operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant’s ability to record, process, summarize and report financial information; and |
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s internal control over financial reporting. |
Date: August 8, 2023 | By: | /s/ Brian Fallin |
| Brian Fallin | |
| Chief Executive Officer (Principal Executive Officer) | |
Exhibit 31.2
CERTIFICATION PURSUANT TO
EXCHANGE ACT RULES 13a-14(a) AND 15d-14(a)
AS ADOPTED PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Brian H. Aratani, certify that:
1. | I have reviewed this Quarterly Report of Rocky Mountain Industrials, Inc. for the period ended June 30, 2023. |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report; |
4. | The Registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Registrant and have: |
(a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its subsidiaries, is made known to us by others within those entities, particularly during the period in which the report is being prepared; |
(b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
(c) | Evaluated the effectiveness of the Registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
(d) | Disclosed in this report any change in the Registrant’s internal control over financial reporting that occurred during the Registrant’s most recent fiscal quarter (the Registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrant’s internal control over financial reporting; and |
5. | The Registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant’s auditors and the audit committee of the Registrant’s board of directors (or persons performing the equivalent functions): |
(a) | All significant deficiencies and material weaknesses in the design of operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant’s ability to record, process, summarize and report financial information; and |
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s internal control over financial reporting. |
Date: August 8, 2023 | By: | /s/ Brian H. Aratani |
| Brian H. Aratani | |
| Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | |
Exhibit 32.1
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with this Quarterly Report on Form 10-Q of Rocky Mountain Industrials, Inc. (the “Company”) for the period ended June 30, 2023, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned, in the capacity and on the date indicated below, hereby certifies pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to his knowledge:
1. | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
2. | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operation of the Company. |
By: | /s/ Brian Fallin |
|
Brian Fallin |
| |
Chief Executive Officer (Principal Executive Officer) | ||
|
| |
Date: August 8, 2023 |
| |
Exhibit 32.2
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with this Quarterly Report on Form 10-Q of Rocky Mountain Industrials, Inc. (the “Company”) for the period ended June 30, 2023, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned, in the capacity and on the date indicated below, hereby certifies pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to his knowledge:
1. | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
2. | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operation of the Company. |
By: | /s/ Brian H. Aratani |
|
Brian H. Aratani | ||
Chief Financial Officer | ||
(Principal Financial Officer and Principal Accounting Officer) | ||
| ||
Date: August 8, 2023 | ||
Exhibit 95
Mine Safety Disclosures
The operation of the Company’s aggregate mine is subject to regulation by the Mine Safety and Health Administration (“MSHA”) under the Federal Mine Safety and Health Act of 1977 (the “Mine Act”). MSHA inspects the Company’s mine on a regular basis and issues various citations and orders when it believes a violation has occurred under the Mine Act. Whenever MSHA issues a citation or order, it also generally proposes a civil penalty, or fine, related to the alleged violation. Citations or orders can be contested and appealed, and as part of that process, are often reduced in severity and amount, and are sometimes dismissed.
Under the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), the Company is required to present information regarding certain mining safety and health citations which MSHA has issued with respect to its aggregates mining operations in its periodic reports filed with the Securities and Exchange Commission (the “SEC”). In evaluating this information, consideration should be given to factors such as: (i) the number of citations and orders will vary depending on the size of the quarry or mine and type of operations (underground or surface), (ii) the number of citations issued will vary from inspector to inspector and location to location, and (iii) citations and orders can be contested and appealed, and in that process, may be reduced in severity and amount, and are sometimes dismissed.
The Company presents the following items regarding certain mining safety and health matters for the nine months ended June 30, 2023:
| ● | Total number of violations of mandatory health or safety standards that could significantly and substantially contribute to the cause and effect of a mine safety or health hazard under section 104 of the Mine Act for which the Company received a citation from MSHA (hereinafter, “Section 104 S&S Citations”). If MSHA determines that a violation of a mandatory health or safety standard is reasonably likely to result in a reasonably serious injury or illness under the unique circumstance contributed to by the violation, MSHA will classify the violation as a “significant and substantial” violation (commonly referred to as a “S&S” violation). MSHA inspectors will classify each citation or order written as a “S&S” violation or not. |
| ● | Total number of orders issued under section 104(b) of the Mine Act (hereinafter, “Section 104(b) Orders”). These orders are issued for situations in which MSHA determines a previous violation covered by a Section 104(a) citation has not been totally abated within the prescribed time period, so a further order is needed to require the mine operator to immediately withdraw all persons (except certain authorized persons) from the affected area of a quarry or mine. |
| ● | Total number of citations and orders for unwarrantable failure of the mine operator to comply with mandatory health or safety standards under Section 104(d) of the Mine Act (hereinafter, “Section 104(d) Citations and Orders”). These violations are similar to those described above, but the standard is that the violation could significantly and substantially contribute to the cause and effect of a safety or health hazard, but the conditions do not cause imminent danger, and the MSHA inspector finds that the violation is caused by an unwarranted failure of the operator to comply with the health and safety standards. |
· | Total number of flagrant violations under section 110(b)(2) of the Mine Act (hereinafter, “Section 110(b)(2) Violations”). These violations are penalty violations issued if MSHA determines that violations are “flagrant”, for which civil penalties may be assessed. A “flagrant” violation means a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury. |
· | Total number of imminent danger orders issued under section 107(a) of the Mine Act (hereinafter, “Section 107(a) Orders”). These orders are issued for situations in which MSHA determines an imminent danger exists in the quarry or mine and results in orders of immediate withdrawal of all persons (except certain authorized persons) from the area of the quarry or mine affected by its condition until the imminent danger and the underlying conditions causing the imminent danger no longer exist. |
· | Total Dollar Value of MSHA Assessments Proposed. These are the amounts of proposed assessments issued by MSHA with each citation or order for the time period covered by the report. Penalties are assessed by MSHA according to a formula that considers a number of factors, including the mine operator’s history, size, negligence, gravity of the violation, good faith in trying to correct the violation promptly, and the effect of the penalty on the operator’s ability to continue in business. |
· | Total Number of Mining-Related Fatalities. Mines subject to the Mine Act are required to report all fatalities occurring at their facilities unless the fatality is determined to be “non-chargeable” to the mining industry. The final rules of the SEC require disclosure of mining-related fatalities at mines subject to the Mine Act. Only fatalities determined by MSHA not to be mining-related may be excluded. |
· | Receipt of written notice from MSHA of a pattern (or a potential to have such a pattern) of violations of mandatory health or safety standards that are of such nature as could have significantly and substantially contributed to the cause and effect of other mine health or safety hazards under section 104(e) of the Mine Act. If MHSA determines that a mine has a “pattern” of these types of violations, or the potential to have such a pattern, MSHA is required to notify the mine operator of the existence of such a thing. |
· | Legal Actions Pending as of the Last Day of Period. |
·Legal Actions Initiated During Period.
·Legal Actions Resolved During Period.
The Federal Mine Safety and Health Review Commission (the “Commission”) is an independent adjudicative agency that provides administrative trial and appellate review of legal disputes arising under the Mine Act. The cases may involve, among other questions, challenges by operators to citations, orders and penalties they have received from MSHA, or complaints of discrimination by miners under Section 105 of the Mine Act. The table below shows that for the six-month period ended September 30, 2022, the number of legal actions pending before the Commission, along with the number of legal actions initiated before the Commission during the period as well as resolved during the period. In addition, the table below includes a footnote to the column for legal actions before the Commission pending as of the last day of the period, which footnote breaks down that total number of legal actions pending by categories according to the type of proceeding in accordance with various categories established by the procedural rules of the Commission.