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EXHIBIT 10.13
LOAN AND SECURITY AGREEMENT
This Loan and Security Agreement (the "Agreement") is entered into this
30th day of June, 1998 at Cincinnati, Xxxxxxxx County, Ohio, by and between THE
HUNTINGTON NATIONAL BANK, a national banking association (the "Huntington") and
FIRST CINCINNATI LEASING LLC, an Ohio limited liability company (the
"Borrower").
WITNESSETH:
WHEREAS, Borrower desires to borrower certain funds from Huntington for
the purpose of acquiring certain real estate and improvements located in various
jurisdictions (collectively referred to as the "Property" and individually as
"Model Home"); and
WHEREAS, subject to the provisions hereof, Huntington has agreed to
make a loan to Borrower for such purposes in an amount not to exceed Ten Million
Dollars ($10,000,000.00) in the lawful currency of the United States of America.
NOW, THEREFORE, in consideration of the foregoing premises, the
covenants and conditions contained herein and other good and valuable
consideration, the receipt, sufficiency and adequacy of which is hereby
acknowledged, the parties agree as follows:
1. LOAN DOCUMENTS. The Loan is evidenced by Borrower's Promissory Note
of even date herewith (the "Note") in the amount of up to Ten Million Dollars
($10,000,000.00), payable to the Huntington, bearing interest and as provided
therein. The Note is secured by a first lien Open-End Mortgage, Assignment of
Rents and Leases and Security Agreement on each Model Home of even date herewith
(collectively the "Mortgage") encumbering the Property. In addition, Borrower
has executed and delivered UCC Financing Statements (the "UCC Financing
Statements") evidencing Huntington's first and best lien security interest in
all of Borrower's assets, including, without limitation, the leases and all
personal property located in, or about the Property, whether existing now or
after acquired. Xxxxx X. Xxxxxx, III (the "Guarantor") has executed an
Unconditional Guaranty of Payment and Performance of even date herewith (the
"Guaranty") wherein Guarantor has guaranteed repayment of the indebtedness
evidenced by the Note and the performance of any and all obligations of the
Borrower to Huntington. The Note, Mortgage, Assignment, UCC Financing
Statements, Guaranty and this Agreement are sometimes hereinafter collectively
referred to as the "Loan Documents".
2. DRAW LOAN. Subject to the terms and conditions contained in this
Agreement, Huntington shall make loans and advances to the Borrower, upon a draw
basis, up to a maximum of Ten Million Dollars ($10,000,000.00) (the "Draw
Loan"). The principal balance of the Draw Loan shall not exceed an amount equal
to ninety percent (90%) of the actual documented cost of each Model Home
provided to and accepted by Huntington as collateral. The Huntington shall have
no obligation to advance any sums pursuant to the Draw Loan at any time after
December 31, 1998 or if at any time and or prior to said date, a set of facts or
circumstances exists, which, by themselves, upon the giving of notice, the lapse
of time, or any one or more of the foregoing, would constitute an "Event of
Default" under this Agreement.
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3. ELIGIBLE HOMES. Borrower shall apply proceeds of the Draw Loan
for the purchase of Model Homes only from Xxxxxx Homes, Inc. "Model Home" means
a home designated as a Model Home in the inventory records of Xxxxxx Homes, Inc.
Homes designated as "Contracted Homes" or "Market Homes" (Speculative Homes) in
the inventory records by Xxxxxx Homes, Inc. are ineligible for purchase by
Borrower with Draw Loan proceeds.
4. TERMS OF DRAW LOAN.
4.1 REPAYMENT. The Borrower agrees to pay Huntington
monthly, the interest on the unpaid balance of the Draw Loan at a rate of
interest set forth in the Note evidencing the Draw Loan, the terms and
conditions of which are incorporated by reference herein. Each advance or draw
request shall be accompanied by such other documents or communications as may be
acceptable to Huntington in its sole and absolute discretion. Repayment of the
Draw Loan shall be made in accordance with the terms of the Note. The Borrower
agrees to pay all of Huntington's out of pocket expenses and all costs and
expenses incidental to or in connection with (a) the Draw Loan, (b) the
enforcement of Huntington's rights in connection therewith, (c) any amendment or
modification of this Agreement, the Loan Documents or any other documents
related thereto, (d) any litigation, contest, dispute, proceeding or action in
any way relating to the Property or to this Agreement or the Loan Documents,
whether any of the foregoing are incurred prior to or after maturity, the
occurrence of any Event of Default or the rendering of a judgment. Such costs
shall include, but not be limited to, reasonable fees and out of pocket expenses
of Huntington's counsel, recording fees, inspection fees, revenue stamps and
note and mortgage taxes.
4.2 DISBURSEMENTS REQUIREMENTS.
4.2.1 The Huntington will disburse the loan proceeds to the
Borrower commencing on the date hereof and terminating at 11:59 p.m.,
Cincinnati, Ohio time on December 31, 1998, upon satisfaction of the following
conditions within thirty (30) days of disbursement:
1) For Each Model Home, a title exam or an
opinion letter from the Borrower's counsel
indicating that the Huntington has a first
and best lien on each Model Home;
2) The Borrower provides the Huntington with a
copy of each deed titled in the name of the
Borrower and a mortgage for each Model Home;
3) The Borrower provides the Huntington with a
certificate of fair market value in form and
substance satisfactory to the Huntington;
and
4) Opinion from the Borrower's Counsel that
each mortgage for each Model Home is
enforceable in accordance with the laws of
the state in which the Model Home is
situated, and secures the full amount of the
Draw Loan.
4.2.2 If it is determined at any time after a disbursement is
made by the Huntington pursuant to Subsection 4.2.1 above, that the Huntington
does not have a first and best lien on any
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Model Home or that any Model Home is not titled in the name of the Borrower, the
Borrower with regards to such Model Home, shall within thirty (30) days of
disbursement perform the following:
1) Take such steps deemed necessary by the
Huntington in its absolute discretion to
insure the Huntington that it has a first
and best lien as to such Model Home; or
2) Substitute such Model Home with a like Model
Home on which the Huntington has a first and
best lien; or
3) Pay down the amount of the Note by the
amount advanced against such Model Home.
5.1 GRANT OF SECURITY INTEREST. The Borrower hereby grants, pledges and
assigns to Huntington a security interest in the following property, whether the
Borrower's interest therein as owner, co-owner, lessor, lessee, consignee,
secured party or otherwise, be now owned or existing or hereafter arising or
acquired, and wherever located, together with all substitutions, replacements,
additions and accessions therefor or thereto, all documents, negotiable
documents, documents of title, warehouse receipts, storage receipts, dock
warrants, express bills, freight bills, airbills, bills of lading, and other
documents relating thereto, all products thereof and all cash and non-cash
proceeds thereof including, but not limited to, notes, drafts, checks,
instruments, insurance proceeds, indemnity proceeds, warranty and guaranty
proceeds: (a) all of Borrower's inventory including, but not limited to, all
improved real property, all goods, merchandise and other personal property
furnished under any contract of service or intended for sale or lease, all
parties, supplies, raw materials, work in process, finished goods, homes,
materials used or consumed in Borrower's business, and repossessed and returned
goods or homes (herein the "Inventory"); (b) all of the Borrower's accounts,
accounts receivable, contract rights, chattel paper, general intangibles, income
tax refunds, preference recoveries or other claims in respect of any transfers
of any kind, instruments, negotiable documents, notes, drafts, acceptances and
other forms of obligations, all books, records, ledger cards, computer programs,
and other documents or property at any time evidencing or relating to the
Borrower's accounts, including, but not limited to, those arising from or in
connection with the Borrower's sale, lease or other disposition of Inventory
(herein the "Accounts"); (c) all of the Borrower's machinery, equipment, tools,
furniture, furnishings and fixtures including, but not limited to, all
manufacturing, fabricating, processing, transporting and packaging equipment,
power systems, heating, cooling and ventilating systems, lighting and
communications systems, electric, gas and water distribution systems, food
service systems, fire prevention, alarm and security systems, laundry systems
and computing and data processing systems (herein the "Equipment"); (d) all of
the Borrower's trade names, trademarks, trade secrets, service marks, data
bases, software and software systems, information systems, discs, tapes,
goodwill, patents, patent applications, copyrights, licenses and franchises
(herein the "Intellectual Property"); and (e) all deposit accounts, whether
general, special, time, demand, provisional, final, all cash or monies wherever
located, any and all deposits or other sums at any time credited by or due from
Huntington to the Borrower, any and all policies, certificates of insurance,
securities, goods, chooses in action, cash and property owned by the Borrower or
in which the Borrower has an interest, which now or hereafter are at any time in
the possession or control of Huntington or in transit by mail or carrier to or
from Huntington, or in the possession of any third party acting in Huntington's
behalf, without regard to whether Huntington received the same in pledge for
safekeeping, as agent for collection or transmission or otherwise, or whether
Huntington has conditionally released the same (herein the "Deposits") (all
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of the Accounts, the Inventory, the Equipment, the Intellectual Property and the
Deposits herein are collectively termed the "Collateral").
The security interest hereby granted is to secure the prompt and full
payment whether at stated or accelerated maturity or otherwise, of any and all
principal, interest, damages, losses, costs, charges, expenses and liabilities,
whether fixed or contingent (collectively the "Indebtedness") and the complete,
faithful and punctual performance of any and all Obligations of the Borrower to
Huntington. The word "Obligations" is used in its most comprehensive sense and
includes, without limitation, all Indebtedness, debts and liabilities (including
principal, interest, late charges, collection costs, attorneys' fees and the
like) of the Borrower to Huntington, including, without limitation, the
$10,000,000.00 of even date herewith Promissory Note, whether now existing or
hereafter arising, either created by the Borrower alone or together with another
or others, primary or secondary, secured or unsecured, absolute or contingent,
liquidated or unliquidated, direct or indirect, whether evidenced by note,
draft, application for letter of credit or otherwise, and any and all renewals
of or substitutes therefor, including all Indebtedness owed by the Borrower to
Huntington in connection with the Draw Loan.
It is the Borrower's express intention that the continuing security
interest granted hereby, shall extend to all present and future Obligations of
the Borrower to Huntington, whether or not such Obligations are reduced or
extinguished and thereafter increased or reincurred, whether or not such
Obligations are related to the Indebtedness identified above by class, type or
kind and whether or not such Obligations are specifically contemplated as of the
date hereof. The absence of any reference to this Agreement in any documents,
instruments or agreements evidencing or relating to any Obligation secured
hereby shall not limit or be construed to limit the scope or applicability of
this Agreement.
Upon receipt of payment from the Borrower in the amount of the original
amount advance on any Model Homes, said Model Home shall be released from the
Mortgage and the security interest provided herein to the Huntington.
5.2 REPRESENTATIONS AND COVENANTS REGARDING THE PROPERTY AND THE
COLLATERAL. The Borrower represents, warrants and covenants as follows: (a)
Except for the security interest granted hereby and any liens set forth in
Exhibit A, the Borrower is, or as to Property or Collateral arising or to be
acquired after the date hereof, shall be, the sole and exclusive owner of the
Property and the Collateral, and the Property and the Collateral is and shall
remain free from any and all liens, security interests, encumbrances, claims and
interests, and no security agreement, mortgage or deed of trust or similar
instrument, financing statement, equivalent security or lien instrument or
continuation statement covering any of the Property or the Collateral is on file
or of record in any public office; (b) the Borrower shall not create, permit or
suffer to exist, and shall take such action as is necessary to remove, any claim
to or interest in or lien or encumbrance upon the Property or the Collateral
except the security interest granted hereby and any liens or encumbrances set
forth in Exhibit A, and shall defend the right, title and interest of Huntington
in and to the Property and the Collateral against all claims and demands of all
persons and entities at any time claiming the same or any interest therein; (c)
the Borrower's principal place of business and chief executive office is located
at the address set forth in paragraph 10.1 of this Agreement; the records
concerning the Property and the Collateral shall be kept at that address unless
Huntington shall give its prior written
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consent otherwise; and the Borrower has no other place of business or place
where Property or the Collateral is located, except as shown in Exhibit B
attached hereto; (d) at least thirty (30) days prior to the occurrence of any of
the following events, the Borrower shall deliver to the loan officer who is
handling the Borrower's Obligations on behalf of Huntington written notice of
such impending events: (i) a change in the Borrower's principal place of
business or chief executive office; (ii) the opening or closing of any place of
business; or (iii) a change in the Borrower's name, identity or corporate
structure; (e) each Model Home is based on an actual bona fide, and genuine
rendering or performance of services in the ordinary course of the Borrower's
business, documents to be given to Huntington by the Borrower with respect to
the Property will be genuine and accurate; and (f) any and all taxes and fees
relating to the Borrower's business shall be the Borrower's sole responsibility,
and none of said taxes and fees represent a lien on or claim against any of the
Property except for the lien of real estate taxes accrued but not yet due and
payable.
5.3 APPLICATION OF PROCEEDS; SETOFF; GOVERNMENT ACCOUNTS; PERFECTION;
LIEN NOTATION. All amounts received by the Huntington representing payment of
Accounts or proceeds from the sale of the Property, Inventory or of the
Collateral may be applied by the Huntington to the payment of the Obligations in
such order of preference as the Huntington may determine. The Borrower also
authorizes the Huntington at any time, after default by Borrower or Guarantor,
upon simultaneous notice to Borrower, to appropriate and apply any balances,
credits, deposits, accounts or money of the Borrower in the Huntington's
possession, custody or control to the payment of any of the Obligations whether
or not the Obligations are due or matured. If any of the Borrower's Accounts
arise out of contracts with or orders from the United States or any department,
agency or instrumentality thereof, the Borrower shall immediately (a) notify the
Huntington thereof in writing and (b) execute any instrument and take any steps
which the Huntington deems necessary pursuant to the Federal Assignment of
Claims Act of 1940, as amended (41 USC Section 15) in order that all money due
and to become due under such contract or order shall be assigned to the
Huntington. The Borrower agrees to execute, deliver, file and record all such
notices, affidavits, assignments, financing statements and other instruments as
shall in the judgment of the Huntington be necessary or desirable to evidence,
validate and perfect the security interest of the Huntington in the Accounts. If
certificates of title are issued or outstanding with respect to any Inventory or
Equipment, the Borrower will cause the interest of the Huntington to be properly
noted thereon at the Borrower's expense.
5.4 COLLATERAL INSURANCE. The Borrower shall have and maintain
insurance at all times with respect to all Property, Inventory and Equipment
insuring against risks of fire (including so-called extended coverage),
explosion, theft, sprinkler leakage and such other casualties as the Huntington
may designate, containing such terms, in such form, for such amounts, for such
periods and written by such companies as may be satisfactory to the Huntington,
and each such policy shall contain a clause or endorsement satisfactory to the
Huntington that names the Huntington as additional insured and loss payee, as
its interests may appear, and that provides that no act, default or breach of
warranty or condition of the Borrower or any other person shall affect the right
of the Huntington to recover under such policy or policies of insurance or to
pay any premium in whole or in part relating thereto. All policies of insurance
shall provide for thirty (30) days' written minimum notice of cancellation or
alteration to the Huntington. The Borrower shall deliver to the Huntington
certified copies of all policies of insurance and evidence of the payment of all
premiums therefor. The Borrower hereby irrevocably appoints the Huntington (and
any of the Huntington's
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officers, employees or agents designated by the Huntington) as attorney for the
Borrower in obtaining and cancelling such insurance and in making, settling and
adjusting all claims under such policies of insurance, endorsing the name of the
Borrower on any check, draft, instrument or other item of payment for the
proceeds of such policies of insurance and for making all determinations and
decisions with respect to such policies of insurance; provided however, the
Borrower shall have the right to settle claims of less than $5,000.00 in total.
In the event of failure to provide insurance as herein provided, the Huntington
may, at its option, provide such insurance, and the Borrower shall pay to the
Huntington, upon demand, the cost thereof. Should the Borrower fail to pay said
sum to the Huntington upon demand, interest shall accrue thereon from the date
of demand until paid in full at the highest rate set forth in any document or
instrument evidencing any of the Obligations.
5.5 BOOKS AND RECORDS. The Borrower shall at all times keep accurate
and complete records of the Property and the Collateral, including without
limitation an inventory and complete and accurate records, and at all reasonable
times and from time to time, shall allow the Huntington, by or through any of
its officers, agents, attorneys or accountants, to examine, inspect and make
extracts from the Borrower's books and records and to arrange for verification
of the Property and the Collateral and to examine and inspect the Property and
the Collateral wherever located. In addition, upon request of the Huntington,
the Borrower shall provide the Huntington with copies of agreements with, from,
and invoices to, the Borrower's customers, and supplier's and copies of all
documents, delivery receipts, and such other documentation and information
relating to the Property and the Collateral as the Huntington may require. The
Borrower shall also place a notation on its books of account to disclose the
Huntington's lien therein.
5.6 COLLATERAL ADMINISTRATION. (a) The Borrower shall promptly perform,
on request of the Huntington, such acts as the Huntington may determine to be
necessary or advisable to create, perfect, maintain, preserve, protect and
continue the perfection of any mortgage, lien and security interest provided for
in this Agreement or otherwise to carry out the intent of this Agreement,
including, without limitation, obtaining waivers or other similar documents
reasonably necessary to permit the enforcement of the remedies of the Huntington
hereunder, (b) further, the Borrower shall not (i) extend, amend or otherwise
modify the terms of any Account, (ii) amend, modify or waive any term or
condition of any contractual obligation related thereto or (iii) redate any
invoice or sale or make sales on extended dating beyond that customary in the
Borrower's industry.
5.7 PRESERVATION AND DISPOSITION OF COLLATERAL. (a) Prior to the
placement of any Collateral in or upon any real property which the Borrower has
leased or mortgaged, the Borrower shall have obtained a waiver from the lessee,
with respect to the rights (whether present or future) of the lessee or
mortgagee with respect to that Collateral. The Borrower shall advise the
Huntington promptly, in writing and in reasonable detail, (i) of any material
encumbrance or claim asserted against any of the Collateral; (ii) of any
material change in the composition of the Collateral; and (iii) of the
occurrence of any other event that would have a material adverse effect upon the
aggregate value of the Collateral or upon the security interest of the
Huntington; (b) the Borrower shall not sell or otherwise dispose of the
Collateral, except that the Borrower may sell or otherwise dispose of the
Inventory in the ordinary course of its business; (c) the Borrower shall keep
the Collateral in good condition and shall not misuse, abuse, secrete, waste or
destroy any of the same; (d) the Borrower shall not use the Collateral in
violation of any statute, ordinance, regulation, rule, decree or order; (e) the
Borrower shall not permit to become liens or encumbrances any taxes,
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assessments, charges or levies upon the Collateral or in respect to the income
or profits therefrom; and (f) at its option, the Huntington may discharge taxes,
liens, security interests or other encumbrances at any time levied or placed on
the Collateral and may pay for the maintenance and preservation of the
Collateral. The Borrower agrees to reimburse the Huntington upon demand for any
payment made or any expense incurred (including reasonable attorneys' fees) by
the Huntington pursuant to the foregoing authorization. Should the Borrower fail
to pay said sum to the Huntington upon demand, interest shall accrue thereon,
from the date of demand until paid in full, at the highest rate set forth in any
document or instrument evidencing any of the Obligations.
5.8 EXTENSIONS AND COMPROMISES. With respect to any Property or
Collateral, the Borrower assents to all extensions or postponements of the time
of payment thereof or any other indulgence in connection therewith, to each
substitution, exchange or release of Property or Collateral, to the addition or
release of any party primarily or secondarily liable, to the acceptance of
partial payments thereon and to the settlement, compromise or adjustment
thereof, all in such manner and at such time or times as the Huntington may deem
advisable. The Huntington shall have no duty as to the collection or protection
of Property or Collateral or any income therefrom, nor as to the preservation of
rights against prior parties, nor as to the preservation of any right pertaining
thereto, beyond the safe custody of Property or Collateral in the possession of
the Huntington.
5.9 FINANCING STATEMENTS. At the request of the Huntington, the
Borrower shall join with the Huntington in executing, delivering and filing one
or more financing statements in a form and content satisfactory to the
Huntington and shall pay the cost of filing the same in all public offices
wherever filing is deemed by the Huntington to be necessary or desirable. A
carbon, photographic or other reproduction of this Agreement or of a financing
statement shall be sufficient as a financing statement.
5.10 HUNTINGTON'S APPOINTMENT AS ATTORNEY-IN-FACT. The Borrower hereby
irrevocably constitutes and appoints the Huntington and any officer or agent
thereof, with full power of substitution, as the Borrower's true and lawful
attorney-in-fact with full irrevocable power and authority in its place and
stead and in its name or in the Huntington's own name, from time to time in the
Huntington's discretion, for the purpose of carrying out the terms of this
Agreement, to take any and all appropriate action and to execute any and all
documents and instruments that may be necessary or desirable to accomplish the
purposes of this Agreement and, without limiting the generality of the
foregoing, hereby grants to the Huntington the power and right, on behalf of the
Borrower, without notice to or assent: (a) to execute, file and record all such
financing statements, deeds, closing statements, certifications, affidavits,
certificates of title and other certificates of registration and operation and
similar documents and instruments as the Huntington may deem necessary or
desirable to protect, perfect and validate the Huntington's security interest in
the Property or the Collateral; (b) to receive, collect, take, indorse, sign,
compromise, assign and deliver in the Borrower's or the Huntington's name, any
and all checks, notes, drafts, or other documents or instruments relating to the
Property or the Collateral; and (c) upon the occurrence of an Event of Default,
(i) to notify postal authorities to change the address for delivery of the
Borrower's mail to an address designated by the Huntington, (ii) to open such
mail delivered to the designated address, (iii) to sign and indorse any
invoices, freight or express bills, bills of lading, storage or warehouse
receipts, drafts against debtors, assignments, verifications and notices in
connection with accounts and other documents relating to the Property or the
Collateral; (iv) to commence and prosecute any
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suits, actions or proceedings at law or in equity in any court of competent
jurisdiction to collect the Property and the Collateral or any part thereof and
to enforce any other right in respect of any Property or the Collateral; (v) to
defend any suit, action or proceeding brought with respect to any Property or
the Collateral; (vi) to negotiate, settle, compromise or adjust any account,
suit, action or proceeding described above and, in connection therewith, to give
such discharges or releases as the Huntington may deem appropriate; and (vii)
generally, to sell, transfer, convey, pledge, make any agreement with respect to
or otherwise deal with any of the Property or the Collateral as fully and
completely as though the Huntington were the absolute owner thereof for all
purposes, and to do, at the Huntington's option and the Borrower's expense, at
any time or from time to time, all acts and things which the Huntington deems
necessary to protect, preserve or realize upon the Property or the Collateral
and the Huntington's security interest therein, in order to effect the intent of
this Agreement.
The Borrower hereby ratifies all that said attorneys shall lawfully do
or cause to be done by virtue hereof. This power of attorney is a power coupled
with an interest and shall be irrevocable. The powers conferred upon the
Huntington hereunder are solely to protect its interests in the Property and the
Collateral and shall not impose any duty upon the Huntington to exercise any
such powers. The Huntington shall be accountable only for amounts that the
Huntington actually receives as a result of the exercise of such powers and
neither the Huntington nor any of its officers, directors, employees or agents
shall be responsible to the Borrower for any act or failure to act, except for
the Huntington's own gross negligence or willful misconduct.
5.11 NO CONSEQUENTIAL DAMAGES. No claim may be made by the Borrower,
any of its officers, directors, or agents against the Huntington or its
affiliates, directors, officers, employees, attorneys or agents for any special,
direct, indirect, or consequential damages in respect of any breach or wrongful
conduct (whether the claim therefor is based on contract, tort or duty imposed
by law) in connection with, arising out of or in any way related to the
transactions contemplated and relationship established by this Agreement, or any
act, omission or event occurring in connection therewith, and the Borrower
hereby waives, releases and agrees not to xxx upon any such claim for any such
damages, whether or not accrued and whether or not known or suspected to exist
in its favor.
5.12 REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default;
(i) the Huntington shall have the rights and remedies of a secured party under
this Agreement, under any other instrument or agreement securing, evidencing or
relating to the Obligations and under the law of the State of Ohio or any other
applicable state law; and (ii) the Huntington shall have the right to foreclose
Mortgages on the Property in accordance with the terms of each Mortgage. Without
limiting the generality of the foregoing, the Huntington shall have the right to
take possession of the Collateral and all books and records relating to the
Collateral and for that purpose the Huntington may enter upon any premises on
which the Collateral or books and records relating to the Collateral or any part
thereof may be situated and remove the same therefrom. The Borrower expressly
agrees that the Huntington, without demand of performance or other demand,
advertisement or notice of any kind (except the notices specified below of time
and place of public sale or disposition or time after which a private sale or
disposition is to occur) to or upon the Borrower or any other person or entity
(all and each of which demands, advertisements and/or notices are hereby
expressly waived), may forthwith collect, receive, appropriate and realize upon
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the Collateral, or any part thereof, and/or may forthwith sell, lease, assign,
give option or options to purchase or sell or otherwise dispose of and deliver
the Collateral (or contract to do so), or any part thereof, in one or more
parcels at public or private sale or sales, at any of the Huntington's offices
or elsewhere at such prices as the Huntington may deem best, for cash or on
credit or for future delivery without assumption of any credit risk. The
Huntington shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any right or equity of
redemption. The Borrower further agrees, at the Huntington's request, to
assemble the Collateral and to make it available to the Huntington at such
places as the Huntington may reasonably select. The Borrower further agrees to
allow the Huntington to use or occupy the Borrower's premises, without charge,
for the purpose of effecting the Huntington's remedies in respect of the
Collateral. The Huntington shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale, after deducting all
reasonable costs and expenses of every kind incurred in connection therewith or
incidental to the care or safekeeping of any or all of the Collateral or in any
way relating to the rights of the Huntington hereunder, including reasonable
attorneys' fees and legal expenses, to the payment in whole or in part of the
Obligations, in such order as the Huntington may elect, and only after so paying
over such net proceeds and after the payment by the Huntington of any other
amount required by any provision of law, need the Huntington account for the
surplus, if any. To the extent permitted by applicable law, the Borrower waives
all claims, damages and demands against the Huntington arising out of the
repossession, retention, sale or disposition of the Collateral. The Borrower
agrees that the Huntington need not give more than seven days' notice (which
notification shall be deemed given when mailed, postage prepaid, addressed to
the Borrower at its address set forth in this Agreement, or when telecopied or
telegraphed to that address or when telephoned or otherwise communicated orally
to the Borrower or any of its agents at that address) of the time and place of
any public sale or of the time after which a private sale may take place and
that such notice is reasonable notification of such matters. The Borrower shall
remain liable for any deficiency if the proceeds of any sale or disposition of
the Collateral are insufficient to pay all amounts to which the Huntington is
entitled. The Borrower shall also be liable for the costs of collecting any of
the Obligations or otherwise enforcing the terms thereof or of this Agreement,
including reasonable attorneys' fees.
6. WARRANTIES AND REPRESENTATIONS. The Borrower warrants and
represents to the Huntington:
6.1 ORGANIZATION AND AUTHORITY. The Borrower (a) is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Ohio; (b) has all requisite power and authority and all necessary
licenses and permits to own and operate and to carry on its business as now
conducted and as presently proposed to be conducted; and (c) is not doing
business or conducting any activity in any jurisdiction in which it has not duly
qualified and become authorized to do business.
6.2 BORROWING IS LEGAL AND AUTHORIZED. (a) The Manager of the Borrower
has duly authorized the execution and delivery of this Agreement and of the Loan
Documents and other related documents contemplated herein; this Agreement, the
Loan Documents and other documents executed in connection with this Agreement
will constitute valid and binding obligations of the Borrower enforceable in
accordance with their respective terms; (b) the execution of this Agreement
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and Loan Documents and documents and the compliance by the Borrower with all the
provisions of this Agreement (i) are within the powers of the Borrower; and (ii)
are legal and will not conflict with, result in any breach in any of the
provisions of, constitute a default under, or result in the creation of any lien
or encumbrance upon any property of the Borrower under the provisions of any
agreement, charter instrument, article of organization, operating agreement,
bylaw, or other instrument to which the Borrower is a party or by which it may
be bound; (c) there are no limitations in any indenture, contract, agreement,
mortgage, deed of trust or other agreement or instrument to which the Borrower
is now a party or by which the Borrower may be bound with respect to the payment
of principal or interest on any indebtedness, or the Borrower's ability to incur
indebtedness including the Loan Documents and other documents to be executed in
connection with this Agreement.
6.3 TAXES. All tax returns required to be filed by the Borrower in any
jurisdiction have in fact been filed, and all taxes, assessments, fees and other
governmental charges upon the Borrower, or upon any of its properties, which are
due and payable have been paid. The Borrower does not know of any proposed
additional tax assessment against it. The accruals for taxes on the books of the
Borrower for its current fiscal period are adequate.
6.4 COMPLIANCE WITH LAW. The Borrower (a) is not in violation of any
laws, ordinances, governmental rules or regulations to which it is subject,
including without limitation any laws, rulings or regulations relating to the
Employee Retirement Income Security Act of 1974 or Section 4975 of the Internal
Revenue Code and (b) has not failed to obtain any licenses, permits, franchises
or other governmental or environmental authorizations necessary to the ownership
of its properties or to the conduct of its business, which violation or failure
might adversely affect the business, prospects, profits, properties or condition
(financial or otherwise) of the Borrower.
6.5 FULL DISCLOSURE. The Borrower has disclosed to the Huntington in
writing all facts, including, without limitation, all threatened or pending
litigation, administrative proceedings, and arbitration proceedings which
materially affect the properties, business, prospects, profits or condition
(financial or otherwise) of the Borrower or the ability of the Borrower to
perform this Agreement.
6.6 NO INSOLVENCY. On the date of the Borrower's entering into the Draw
Loan and after giving effect to all indebtedness of the Borrower (including the
Draw Loan), (a) the Borrower will be able to pay its obligations as they become
due and payable; (b) the present fair saleable value of the Borrower's assets
exceeds the amount that will be required to pay its probable liability on its
obligations as the same become absolute and matured; (c) the sum of the
Borrower's property at a fair valuation exceeds the Borrower's indebtedness; and
(d) the Borrower will have sufficient capital to engage in the Borrower's
business. The Borrower's grant of collateral for the Draw Loan constitutes fair
consideration and reasonably equivalent value because of the receipt of the
proceeds of the Draw Loan.
6.7 GOVERNMENT CONSENT. Neither the nature of the Borrower or of its
business or properties, nor any relationship between the Borrower and any other
entity or person, nor any circumstance in connection with the execution of this
Agreement, is such as to require a consent, approval or authorization of, or
filing, registration or qualification with, any governmental or other
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authority on the part of the Borrower as a condition to the execution and
delivery of this Agreement and the Loan Documents and the other documents
contemplated herein.
6.8 TITLE TO PROPERTIES. The Borrower has good and marketable title to
all the Property and other assets in which it has a property interest, free from
any liens and encumbrances, except as set forth on Exhibit A attached to this
Agreement and incorporated by reference herein. The Borrower has not agreed or
consented to cause or permit in the future (upon the happening of a contingency
or otherwise) any of the Property or its other assets whether now owned or
hereafter acquired to be subject to a lien or encumbrance.
6.9 NO DEFAULTS. No event has occurred and no condition exists which
would constitute an Event of Default pursuant to this Agreement. The Borrower is
not in violation in any material respect of any term of any agreement, articles
of organization, operating agreement, charter instrument, bylaw or other
instrument to which it is a party or by which it may be bound.
6.10 ENVIRONMENTAL PROTECTION. The Borrower (a) has no actual knowledge
of the permanent placement, burial or disposal of any Hazardous Substances (as
hereinafter defined) on any real property owned, leased, or used by the
Borrower, of any spills, releases, discharges, leaks, or disposal of Hazardous
Substances that have occurred or are presently occurring on, under, or onto any
Model Home, or of any spills, releases, discharges, leaks or disposal of
Hazardous Substances that have occurred or are occurring off the location of any
Model Home as a result of the Borrower's improvement, operation, or use of the
Property which would result in non-compliance with any of the Environmental Laws
(as hereinafter defined); (b) is and has been in compliance with all applicable
Environmental Laws; (c) knows of no pending or threatened environmental civil,
criminal or administrative proceedings against the Borrower relating to
Hazardous Substances; (d) knows of no facts or circumstances that would give
rise to any future civil, criminal or administrative proceeding against the
Borrower relating to Hazardous Substances; and (e) will not permit any of its
employees, agents, contractors, subcontractors, or any other person occupying or
present on the Property to generate, manufacture, store, dispose or release on,
about or under the Property any Hazardous Substances which would result in the
Property or any other of its assets not complying with the Environmental Laws.
As used herein, "Hazardous Substances" shall mean and include all
hazardous and toxic substances, wastes, materials, compounds, pollutants and
contaminants (including, without limitation, asbestos, polychlorinated
biphenyls, and petroleum products) which are included under or regulated by the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. Section 9601, et seq., the Toxic Substances Control Act, 15
U.S.C. Section 2601, et seq., the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901, et seq., the Water Quality Act of 1987, 33 U.S.C. Section
1251, et seq., and the Clean Air Act, 42 U.S.C. Section 7401, et seq., and any
state or local statute ordinance, law, code, rule, regulation or order
regulating or imposing liability (including strict liability) or standards of
conduct regarding Hazardous Substances (hereinafter the "Environmental Laws"),
but does not include such substances as are permanently incorporated into a
structure or any part thereof in such a way as to preclude their subsequent
release into the environment, or the permanent or temporary storage or disposal
of household hazardous substances by tenants, and which are thereby exempt from
or do not give rise to any violation of the forementioned Environmental Laws.
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6.11 CAPITAL STRUCTURE. The certified member list of the Borrower set
forth in Exhibit C attached hereto and incorporated by reference herein
accurately represents to the Huntington the following: (a) the classes of
membership of the Borrower and value of each such class, all as authorized by
the Borrower's Articles of Organization and the number of units of each such
class of membership issued and outstanding, the registered owner or holder
(legally or beneficially) thereof, and the certificate numbers, if any,
evidencing the foregoing. The Borrower does not have outstanding any other
member, debt or other equity security, or any other instrument convertible to an
equity security of the Borrower, or any commitment, understanding, agreement or
arrangement to issue, sell or have outstanding any of the foregoing.
6.12 WARRANTIES AND REPRESENTATIONS. On the date of each draw or
advance pursuant to the Loan, the warranties and representations set forth in
Section 6 hereof shall be true and correct on and as of such date with the same
effect as though such warranties and representations had been made on and as of
such date, except to the extent that such warranties and representations
expressly relate to an earlier date.
7. BORROWER BUSINESS COVENANTS. The Borrower covenants that on and
after the date of this Agreement until terminated pursuant to the terms of this
Agreement, or so long as any of the Indebtedness provided for herein remains
unpaid:
7.1 PAYMENT OF TAXES AND CLAIMS. The Borrower will pay before they
become delinquent (a) all taxes, assessments and governmental charges or levies
imposed upon it, the Property or any other of its property; and (b) all claims
or demands of materialmen, laborers, supplies, mechanics, carriers,
warehousemen, landlords, bailees and other like persons, any of the foregoing
which, if unpaid, might result in the creation of a lien or encumbrance upon its
property.
7.2 MAINTENANCE OF PROPERTIES AND EXISTENCE. The Borrower shall (a)
maintain its Property and all other assets in good condition and make all
renewals, replacements, additions, betterments and improvements thereto which
are deemed necessary by the Borrower; (b) maintain, with financially sound and
reputable insurers, insurance with respect to the Property and all other assets
and business against such casualties and contingencies, of such types (including
but not limited to fire and casualty, public liability, products liability,
larceny, embezzlement or other criminal misappropriation insurance) and in such
amounts as is customary in the case of entities of established reputations
engaged in the same or a similar business and similarly situated, with each such
policy of insurance containing a clause or endorsement satisfactory to the
Huntington that names the Huntington as additional insured and loss payee, as
its interests may appear, and that provides that no act, default or breach of
warranty or condition of the Borrower or any other person shall affect the right
of the Huntington to recover under such policy or policies of insurance or to
pay any premium in whole or in part relating thereto, (c) keep true books of
records and accounts in which full and correct entries will be made of all its
business transactions, and reflect in its financial statements adequate accruals
and appropriations to reserves; (d) do or cause to be done all things necessary
(i) to preserve and keep in full force and effect its existence, rights and
franchises, and (ii) to maintain its status as a limited liability company duly
organized and existing and in good standing under the laws of the state of Ohio;
and (e) not be in violation of any laws, ordinances, or governmental rules and
regulations or fail to obtain any licenses, permits, franchises or other
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governmental authorizations necessary to the ownership of the Property, its
other assets or to the conduct of its business, which violation or failure to
obtain might materially and adversely affect the business, prospects, profits,
properties or condition (financial or otherwise) of the Borrower.
7.3 SALE OF ASSETS; MERGER; SUBSIDIARIES; TRADENAMES. The Borrower will
not, except in the ordinary course of business, sell, lease, transfer or
otherwise dispose of, any of its assets. The Borrower will not without the prior
written consent of the Huntington, consolidate with, merge into, or make
investments in any other entity, or permit any other entity to consolidate with
or merge into it. The Borrower shall not acquire all or substantially all of the
assets or business of any other Borrower, person or entity. The Borrower has no
subsidiaries and conducts business only in the name of the Borrower. The
Borrower will not create or acquire any subsidiaries or conduct business under
any other tradenames without the prior written consent of the Huntington.
7.4 NEGATIVE PLEDGE. The Borrower will not cause or permit or agree or
consent to cause or permit in the future (upon the happening of a contingency or
otherwise), any of the Property or any of its real or personal property, whether
now owned or hereafter acquired, to become subject to a mortgage, deed of trust,
lien or encumbrance, of any type except: liens for real estate taxes accrued but
not yet due and payable.
7.5 OTHER BORROWINGS AND CONTINGENT LIABILITIES. Except for the Draw
Loan, the Borrower will not (a) create or incur any indebtedness for borrowed
money or advances, including through the execution of capitalized lease
agreements, or (b) guarantee, indorse or otherwise become surety for or upon the
obligations of others, except by endorsement of negotiable instruments for
deposit or collection in the ordinary course of business.
7.6 SALE OF ACCOUNTS; NO CONSIGNMENT. The Borrower shall not sell,
assign, or encumber, except to the Huntington, any of its Accounts or notes
receivable. The Borrower shall not acquire or possess any of its Property or
Inventory on consignment.
7.7 OWNERSHIP AND MANAGEMENT. The Borrower shall not permit any change
in its ownership or management.
7.8 TANGIBLE NET WORTH. The Borrower shall maintain at all times a
tangible net worth, as determined on December 31, 1998, and quarterly
thereafter, of not less than $1,000,000.00.
7.9 TRANSACTIONS WITH AFFILIATES. The Borrower shall not directly or
indirectly enter into or permit to exist any transactions (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with any of its affiliates, relatives of members,
members, or any affiliates of either of the foregoing, on terms that are less
favorable to the Borrower than those which might be obtained at the time from
persons or entities who are not affiliated with the Borrower or its
shareholders, except for the transactions outlined in the Lease documents and
purchase agreement between the Borrower and Xxxxxx Homes, Inc. "Affiliate" shall
mean any individual, partnership, corporation, or other entity which, directly
or indirectly, is in control of, is controlled by, or is under common control
with Borrower. For the purposes of this definition, control of such entity shall
mean the power, direct or indirect, to vote five percent or more of the
securities, units or other measures having ordinary voting power for the
election of directors,
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management committees, or similar committees of such entity, or the power to
direct or cause the direction of the management and policies of such entity,
whether by contract or otherwise.
7.10 INTEREST COVERAGE RATIO. The Borrower shall maintain an Interest
Coverage Ratio of not less than 1.1 to 1.0. "Interest Coverage Ratio" shall mean
for any quarter, determined on a year to date basis, a ratio of EBIT for that
period to "Cash Interest Expense". "EBIT" of the Borrower shall mean (i) the net
income (or deficit) of the Borrower for such period, which, in accordance with
GAAP (as defined in Section 10.6) would be included as net income on the
statements of income of the Borrower plus (ii) the aggregate amounts deducted in
determining such net income in respect of (a) all amounts paid (without
duplication) as interest on all indebtedness and obligations of the Borrower for
such period, all as determined in conformity with GAAP and (b) income taxes for
such period, each determined in accordance with GAAP. "Cash Interest Expense"
shall mean all amounts paid (without duplication) as interest on all obligations
and indebtedness of the Borrower for the preceding quarter, determined on a year
to date basis, less (i) interest paid other than in cash and (ii) amortization
of financing fees and debt discount directly related to this Agreement.
7.11 COMPLIANCE CERTIFICATE. The Borrower shall deliver to the
Huntington within 15 days after the end of each quarter a Compliance Certificate
(as hereinafter defined) stating that Xxxxxx Homes, Inc. is in full compliance
with the terms, covenants, and conditions of its Amended and Restated Credit
Agreement dated as of February 28, 1998. For purposes of this Agreement
"Compliance Certificate" shall mean an agreement in the form and content
satisfactory to the Huntington.
7.12 LOANS AND ADVANCES. The Borrower will not make any loans or
advances to any person, corporation or entity.
7.13 ENVIRONMENTAL COMPLIANCE AND INDEMNIFICATION. The Borrower hereby
agrees to indemnify the Huntington and hold the Huntington harmless from and
against any and all loss, damage, cost, expense or liability (including strict
liability) directly or indirectly arising from or attributable to the
generation, storage, release, threatened release, discharge, disposal or
presence (whether prior to or during the term of the Loans) of Hazardous
Substances on, under or about the Property or any other asset of the Borrower
(whether by the Borrower or any employees, agents, contractor or subcontractors
of the Borrower or any predecessor in title or any third persons occupying or
present on the Property or any other asset of the Borrower), or the breach of
any of the representations and warranties regarding the Property or any other
asset of the Borrower, including, without limitation: (a) those damages or
expenses arising under the Environmental Laws; (b) the costs of any repair,
cleanup or detoxification of the Property or any other asset of the Borrower,
including the soil and ground water thereof, and the preparation and
implementation of any closure, remedial or other required plans; (c) damage to
any natural resources; and (d) all reasonable costs and expenses incurred by the
Huntington in connection with clauses (a), (b) and (c) including, but not
limited to reasonable attorneys', experts and consultant's fees.
7.14 MAINTENANCE OF ACCOUNTS. The Borrower shall maintain its sole and
exclusive banking relationship with the Huntington, including, without
limitation, all of its operating, daily
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deposit and cash management accounts at the Huntington. All profits and excess
cash shall be invested with the Huntington.
7.15 OTHER COVENANTS. The Borrower will perform, observe and comply
with such other covenants as the Huntington may from time to time reasonably
require of the Borrower to assure the repayment in full of all of the
Obligations and the complete and timely performance by the Borrower of all the
covenants of the Borrower hereunder.
8. FINANCIAL INFORMATION AND REPORTING. The Borrower shall deliver
the following to the Huntington: (a) monthly reports as to model inventory
covered under this Agreement; (b) within forty-five (45) days after the end of
each fiscal quarter, financial statements, including a balance sheet and
statements of income and expenses comparing the information for the current
period with the information for the same period of the preceding year, certified
by the sole member or sole manager of the Borrower as fairly representing the
Borrower's financial condition as of the end of such period; (c) within 90 days
of the end of each fiscal year, reviewed financial statements prepared in
accordance with GAAP (as defined in Section 10.6) consistently applied and
certified by independent public accountants satisfactory to the Huntington,
containing a balance sheet, statements of income and surplus, statements of cash
flows and reconciliation of capital accounts, along with any management letters
written by such accountants; (d) immediately upon becoming aware of the
existence of any set of facts or circumstances which, by themselves, upon the
giving of notice, the lapse of time, or any one or more of the foregoing, would
constitute a breach of any of the terms or conditions of this Agreement or an
Event of Default under this Agreement, a written notice specifying the nature
and period of existence thereof and what action the Borrower is taking or
proposes to take with respect thereto; and (e) at the request of the Huntington,
such other information as the Huntington may from time to time reasonably
require.
9. DEFAULT.
9.1 EVENTS OF DEFAULT. An "Event of Default" shall exist if any of the
following occurs and is continuing: (a) the Borrower fails to make any payment
of principal or interest on the Note executed in connection with this Agreement
on or before the date such payment is due or within ten (10) days of when it is
due; (b) the Borrower fails to perform or observe any covenant contained in
Sections 3,4, 5,6,7 or 8 of this Agreement and remains uncured for a period of
thirty (30) days from the date of such failure to perform; (c) the Borrower
fails to comply with any other provision of this Agreement, and such failure
continues for more than ten (10) days after such failure shall first become
known to the sole Manager or the Sole Member of the Borrower; (d) any warranty,
representation or other statement by or on behalf of the Borrower contained in
this Agreement or in any instrument furnished in compliance with or in reference
to this Agreement is false or misleading in any material respect, or the
Borrower or Guarantor fails to perform or observe any covenant contained in the
Note, Loan Document or other agreement in favor of the Huntington; (e) the
Borrower becomes insolvent or makes an assignment for the benefit of creditors,
or consents to the appointment of a trustee, receiver or liquidator; (f)
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
are instituted by or against the Borrower; (g) a final judgment or judgments for
the payment of money aggregating in excess of $100,000.00 is or are outstanding
against the Borrower and any such judgment or judgments have not been discharged
in full or stayed; (h) the occurrence of any event which allows the acceleration
of the maturity of any
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indebtedness of the Borrower to the Huntington, any of the Huntington's
affiliates, or any other person, corporation or entity under any indenture,
agreement or undertaking; (i) the default by, dissolution of, or death of any
Guarantor, insurer or other surety for the Borrower with respect to any
obligation or liability to the Huntington; or (j) the aggregate value of the
Property furnished as security materially declines in value, and the Borrower
does not immediately, upon request, furnish additional security satisfactory to
the Huntington.
9.2 ADDITIONAL EVENT OF DEFAULT. In the event the Borrower fails to
provide the Huntington with evidence satisfactory to the Huntington in its sole
and absolute discretion that a mortgage or deed of trust on any particular Model
Home(s) is not a first and best lien, subject only to (i) covenants, conditions
and restrictions and easements that do not impair the intended use of the Model
Home(s) in question, and (ii) real estate taxes and assessments, if any, that
are accrued, but not yet due and payable, then the Borrower may (a) repay the
principal of the Note lent against the Model Home(s) in question, with accrued
interest, or (b) propose to substitute other property in lieu of the Model
Home(s) in question, said other property being property that is acceptable to
the Huntington in its sole and absolute discretion, or (c) have the existence of
said defect(s) constitute an Event of Default if not cured to the sole and
absolute discretion of the Huntington within thirty (30) days of the sending of
notice of the defect.
9.3 DEFAULT REMEDIES. If an Event of Default exists, the Huntington
may immediately exercise any right, power or remedy permitted to the Huntington
by law or any provision of this Agreement, and shall have, in particular,
without limiting the generality of the foregoing, the right to declare the
entire principal and all interest accrued on the Note then outstanding pursuant
to this Agreement to be forthwith due and payable, without any presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower.
10. MISCELLANEOUS.
10.1 NOTICES. (a) All communications under this Agreement, the Note,
the Loan Documents or any other document executed in conjunction herewith shall
be in writing and shall be mailed by certified, return receipt requested mail,
postage prepaid, (1) if to the Huntington, at the following address, or at such
other address as may have been furnished in writing to the Borrower by the
Huntington:
The Huntington National Bank
000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx 00000-0000
Attn: Xxxx X. Xxxxxx
(2) if to the Borrower, at the following address, or at such other address as
may have been furnished in writing to the Huntington by the Borrower:
First Cincinnati Leasing LLC
C/O 00000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxx, III
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(b) any notice so addressed and mailed by certified mail shall be deemed to be
given when so mailed.
10.2 ACCESS TO ACCOUNTANTS. The Borrower hereby irrevocably authorizes
its certified public accountants to provide to the Huntington any and all
information that the Huntington requests from time to time with regard to the
Borrower, and to discuss with the Huntington from time to time any and all
matters relating to the Borrower. In furtherance of the foregoing, the Borrower
hereby waives any privilege or claim of confidentiality to the extent such might
otherwise prevent the Borrower's accountants from providing such information to
the Huntington or discussing such matters with the Huntington.
10.3 REPRODUCTION OF DOCUMENTS. This Agreement, the Loan Documents and
all documents relating hereto, including, without limitation, (a) consents,
waivers and modifications which may hereafter be executed, (b) documents
received by the Huntington at the closing or otherwise, and (c) financial
statements, certificates and other information previously or hereafter furnished
to the Huntington, may be reproduced by the Huntington by any photographic,
photostatic, microfilm, micro-card, miniature photographic or other similar
process and the Huntington may destroy any original document so reproduced. The
Borrower agrees and stipulates that any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such
reproduction was made by the Huntington in the regular course of business) and
that any enlargement, facsimile or further reproduction of such reproduction
shall likewise be admissible in evidence.
10.4 SURVIVAL, SUCCESSORS AND ASSIGNS. All warranties, representations,
and covenants made by the Borrower herein or on any certificate or other
instrument delivered by it or on its behalf under this Agreement shall be
considered to have been relied upon by the Huntington and shall survive the
closing of the Draw Loan and disbursement of funds regardless of any
investigation made by the Huntington on its behalf. All statements in any such
certificate or other instrument shall constitute warranties and representations
by the Borrower. This Agreement shall inure to the benefit of and be binding
upon the heirs, successors and assigns of each of the parties.
10.5 AMENDMENT AND WAIVER, DUPLICATE ORIGINALS. This Agreement may be
amended, and the observance of any term of this Agreement may be waived, with
(and only with) the written consent of the Borrower and the Huntington; provided
however that nothing herein shall change the Huntington's sole discretion (as
set forth elsewhere in this Agreement) to make draws, advances, determinations,
decisions or to take or refrain from taking other actions. No delay or failure
or other course of conduct by the Huntington in the exercise of any power or
right shall operate as a waiver thereof; nor shall any single or partial
exercise of the same preclude any other or further exercise thereof, or the
exercise of any other power or right. Two or more duplicate originals of this
Agreement may be signed by the parties, each of which shall be an original but
all of which together shall constitute one and the same instrument.
10.6 UNIFORM COMMERCIAL CODE AND GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES. Unless the context otherwise requires, all terms used herein which
are defined in the Uniform Commercial Code as enacted in the State of Ohio shall
have the meaning stated therein. All accounting terms not defined herein shall
be determined in accordance with generally accepted
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accounting principles, consistently applied, as set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and in statements and pronouncements of the
Financial Accounting Standards Board ("GAAP"). The Borrower's fiscal year begins
on January 1, and ends on December 31, and the Borrower will not change its
fiscal year without the prior written consent of the Huntington.
10.7 ENFORCEABILITY AND GOVERNING LAW. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction, as to such
jurisdiction, shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. No delay or
omission on the part of the Huntington in exercising any right shall operate as
a waiver of such right or any other right. All of the Huntington's rights and
remedies, whether evidenced hereby or by any other agreement or instrument,
shall be cumulative and may be exercised singularly or concurrently. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Ohio. The Borrower agrees that any legal suit, action or proceeding
arising out of or relating to this Agreement may be instituted in a state or
federal court of appropriate subject matter jurisdiction in the State of Ohio;
waives any objection which it may have now or hereafter to the venue of any
suit, action or proceeding; and irrevocably submits to the jurisdiction of any
such court in any such suit, action or proceeding.
IN WITNESS WHEREOF, the parties hereto have caused the Agreement to be
duly executed by their respective duly authorized officers as of the day and
year first above written.
Signed and acknowledged FIRST CINCINNATI LEASING LLC,
in the presence of: an Ohio limited liability company
Xxxxxx X. Xxxxx By: /s/ XXXXX X. XXXXXX, III
----------------------------------- --------------------------------
Printed Name: Xxxxxx X. Xxxxx Xxxxx X. Xxxxxx, III
----------------------
Xxxxxxx X. Xxxxxxxx Its: Sole Member and Manager
-----------------------------------
Printed Name: Xxxxxxx X. Xxxxxxxx
----------------------
THE HUNTINGTON NATIONAL BANK
Xxxxxx X. Xxxxx By: Xxxx X. Xxxxxx
----------------------------------- --------------------------------
Printed Name: Xxxxxx X. Xxxxx Xxxx X. Xxxxxx
----------------------
Xxxxxxx X. Xxxxxxxx Its: Vice President
----------------------------------- -------------------------------
Printed Name: Xxxxxxx X. Xxxxxxxx
----------------------
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STATE OF OHIO
XXXXXXXX COUNTY SS:
On this 30th day of June, 1998, before me, a Notary Public in and for
said County and State, personally appeared Xxxxx X. Xxxxxx, III, sole member and
Manager of First Cincinnati Leasing LLC, a limited liability company, in his
capacity as the duly authorized Member and Manager of First Cincinnati Leasing
LLC, the company which executed the foregoing instrument, and acknowledged that
he did so sign the foregoing instrument as such Member and Manager and that such
signing is his free act and deed as such Member and Manager, and the free act
and deed of said company for the uses and purposes therein mentioned.
In Witness Whereof, I have hereunto set my hand and official seal.
{Seal} Xxxxxx L (Xxxx) Xxxx
-------------------------------------------
Notary Public
My Commission Expires:
XXXXXX X. XXXX
Notary Public, State of Ohio
My commission expires Jan. 14, 2002
STATE OF OHIO
XXXXXXXX COUNTY SS:
On this 30th day of June, 1998, before me, a Notary Public in and for
said County and State, personally appeared Xxxx X. Xxxxxx, Vice Pres. of The
Huntington National Bank, a national banking association which executed the
foregoing instrument, signed the same, and acknowledged to me that he did so
sign said instrument in the name and upon behalf of said association as such
officer, and by authority of a resolution of its Board of Directors; and that
such signing is his free act and deed as such officer, and the free act and deed
of said association.
IN WITNESS WHEREOF, I have hereunto set my name and official seal.
Xxxxxx L (Xxxx) Xxxx
-------------------------------------------
{Seal} Notary Public
My Commission Expires:
XXXXXX X. XXXX
Notary Public, State of Ohio
My commission expires Jan. 14, 2002
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This instrument was prepared by:
Xxxxxxx X. Xxxx, Esq.
PORTER, WRIGHT, XXXXXX & XXXXXX
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
(000) 000-0000
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EXHIBIT A
PERMITTED LIENS
NONE
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EXHIBIT B
PLACE OF BUSINESS AND LOCATION OF COLLATRAL
NONE
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EXHIBIT C
CERTIFIED MEMBER LIST
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