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EXHIBIT 10.10
REVOLVING LINE OF CREDIT AGREEMENT
This Revolving Line of Credit Agreement (the "AGREEMENT") is made and
entered into this 9th day of February, 1998, by and between KEYBANK NATIONAL
ASSOCIATION, a national banking association ("LENDER") and XXXXXX INCORPORATED,
a Nevada corporation ("BORROWER").
In consideration of the mutual covenants and agreements contained
herein, Lender and Borrower agree as follows:
1. LINE OF CREDIT. Subject to all of the terms and conditions contained
in this Agreement and the other Loan Documents, as hereinafter defined, Lender
hereby establishes a revolving line of credit (the "CREDIT LINE") for Borrower
in the principal amount of TEN MILLION AND NO/100 DOLLARS ($10,000,000.00) (the
"CREDIT Limit") for the uses and purposes herein set forth. The Credit Line
shall be available to Borrower from the date of this Agreement through and
including March 1, 1999 (the "MATURITY DATE"); provided, however, Lender may, in
its sole discretion, agree to extend the Maturity Date by written agreement, in
which event the term "Maturity Date" shall mean the last day of the extended
term. The Credit Line shall be further segregated into three sublines, as
described in Paragraph 2 below. Borrower shall execute and deliver to Lender a
Promissory Note for the principal amount of the Credit Limit and which is in
form and content satisfactory to Lender. All sums advanced on the Credit Line or
pursuant to the terms of this Agreement (each an "ADVANCE") shall be treated as
an advance or disbursement under the Promissory Note and shall be added to the
outstanding principal balance thereof.
2. SUBLINES AND SUBLIMITS. The Credit Line shall be segregated into the
following sublines (each a "SUBLINE" and, collectively, the "SUBLINES"), each
having a credit limit (a "SUBLIMIT") as indicated below:
a. Working Capital Subline. The Working Capital Subline has a
Sublimit of ONE MILLION AND NO/100 DOLLARS ($1,000,000.00). The proceeds of all
Advances on the Working Capital Subline shall be used to provide funds for the
general working capital requirements of Borrower.
b. Acquisition and Development Subline. The Acquisition and
Development Subline has a Sublimit of FOUR MILLION AND NO/100 DOLLARS
($4,000,000.00). The proceeds of all Advances on the Acquisition and Development
Subline shall only be used to (1) pay or reimburse Borrower for "soft costs"
(excluding developer's fees owed to Borrower or any of its affiliates) with
respect to future development projects undertaken by Borrower, or (2) acquire
the assets, stock, or similar ownership interests of other companies and
businesses; provided, however, Borrower shall not use the proceeds of any
Advance to acquire or hold shares of stock subject to the restrictions of
Regulation U of the Board of Governors of the Federal Reserve.
c. Land Acquisition Subline. The Land Acquisition Subline has
a Sublimit of FIVE MILLION AND NO/100 DOLLARS ($5,000,000.00). The proceeds of
all Advances on the Land Acquisition Subline shall be used only to purchase land
for future use and development by
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Xxxxxx or its affiliates. Notwithstanding anything in this Agreement to the
contrary, the principal amount of each Advance on the Land Acquisition Subline
shall not exceed sixty-five percent (65%) of the appraised value of the land
being acquired. Such value shall be determined by an appraiser acceptable to
Lender and which satisfies all of Lender's internal and regulatory requirements
for similar loans and property, including without limitation, the internal
review and approval of any outside appraisal.
The proceeds from each Advance on a Subline shall only be used for the
purpose or purposes indicated for such Subline and shall not be used for any
other purpose without Lender's prior written consent. If Lender gives its
consent on one or more occasions, such conduct shall not establish a course of
business practice or otherwise obligate Lender to grant its consent for similar
uses in the future.
3. REQUEST FOR ADVANCES. Any request for an Advance may be made from
time to time and in such amounts as Borrower may choose, provided, however, any
requested Advance will not, when added to the outstanding principal balance of
all previous Advances, exceed the Sublimit for the Subline under which the
Advance is made or, when added to the outstanding principal balance of all
Advances, exceed the Credit Limit. Requests for Advances shall be in writing by
such officer of Borrower authorized by it to request such Advances. Until such
time as Lender may be notified otherwise, Borrower hereby authorizes Xxxxx X.
Xxxxxx, its President, and Xxxxxxx Xxxxxx Pori, its Executive Vice President,
(each an "AUTHORIZED OFFICER") to request Advances. Lender may deposit or credit
the amount of any requested Advance to Borrower's checking account with Lender
or may otherwise disburse the same in accordance with the instructions given by
an Authorized Officer. Lender may refuse to make any requested Advance if an
Event of Default, as hereinafter defined, has occurred and is continuing
hereunder either at the time the request is given or the date the Advance is to
be made, or if an event has occurred or condition exists which, with the giving
of notice or passing of time or both, would constitute an Event of Default
hereunder as of such dates.
4. INTEREST; DEFAULT INTEREST. All sums advanced pursuant to this
Agreement shall bear interest from the date each Advance is made until paid in
full at a variable or floating rate equal to the sum of an index and a margin
(the sum of which is the "EFFECTIVE RATE"), where the index is Lender's Prime
Rate and the margin is one hundred (100) basis points (i.e., 1%). Changes to the
Effective Rate will be made on and effective as of the first day of each month
based on the Prime Rate in effect as of the preceding day. Lender need not give
Borrower prior notice of any changes in the Prime Rate. Interest will be
calculated on a basis of a 360-day year and charged for the actual number of
days elapsed. As used herein, the term "PRIME RATE" means the interest rate
established and designated as such from time to time by Lender. Such rate is an
index based on certain factors selected from time to time by Lender such as the
prime or the base lending rates announced by other lenders. The Prime Rate
serves as the basis upon which effective rates of interest are determined for
variable-rate loans made by Lender which use that term as an index. Prime Rate
does not necessarily mean the lowest or best rate at which Lender may make a
loan or otherwise extend credit.
Notwithstanding the foregoing, upon the occurrence of an Event of
Default hereunder, the margin used to determine the Effective Rate shall
immediately increase by an additional four hundred (400) basis points (i.e.,
4%), and shall continue at such increased rate, both before and after
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judgment, until the Credit Line has been repaid in full and all of Borrower's
other obligations to Lender hereunder have been fully paid and discharged.
5. FEES AND OTHER EXPENSES. Borrower agrees to pay to Lender a loan or
commitment fee in the amount of $100,000.00 upon execution of this Agreement.
Such fee shall be deemed fully earned and non-refundable. In addition, Borrower
agrees to pay an Advance fee at the time each Advance is made equal to fifty
(50) basis points (i.e., .5%) times the principal amount of the Advance.
Borrower also agrees to pay or reimburse Lender for all of Lender's costs and
expenses incurred by Lender in connection with the transaction contemplated
herein, including without limitation appraisal fees, fees and expenses of
environmental consultants, premiums for title policies, recording and filing
fees, and reasonable legal fees and expenses. Such fees shall be due and payable
upon execution of this Agreement, or if incurred thereafter, upon demand by
Lender. Borrower authorizes Lender to automatically pay all such fees from an
Advance on the Credit Line.
6. REPAYMENT. Borrower shall pay accrued interest on the outstanding
principal balance of all Advances monthly commencing on the first day of the
month following the date of this Agreement and continuing on the first day of
each month thereafter. The entire unpaid principal balance of each Advance,
together with any accrued interest and other unpaid charges or fees thereon,
shall be due and payable as follows:
a. Working Capital Subline. The entire unpaid principal
balance of all Advances made on the Working Capital Subline shall be due and
payable on the Maturity Date; provided, however, Borrower shall be required to
pay the Working Capital Subline in full and refrain from any draws thereof for a
period of thirty (30) consecutive days during each 12-month period of this
Agreement.
b. Acquisition and Development Subline. The entire unpaid
principal balance of each Advance made on the Acquisition and Development
Subline shall be due and payable on the date that is one year plus one day from
the date such Advance was made.
c. Land Acquisition Subline. The entire unpaid principal
balance of each Advance made on the Land Acquisition Subline shall be due and
payable on the date that is one year plus one day from the date such Advance was
made.
Notwithstanding the foregoing, upon the occurrence of an Event of
Default, Lender may, in its discretion, declare the entire unpaid principal
balance of all Advances, togther with accrued interest and other unpaid fees and
charges under the Loan Documents, to be immediately due and payable. All
payments shall be made to Lender in lawful money of the United States of America
at such place as Lender may, from time to time, designate. Any payment not
received by Lender within ten (10) days after its scheduled due date shall be
subject to a late charge equal to four percent (4%) of the amount of the
delinquent payment or $25.00, whichever is greater. Any payment falling due on a
Saturday, Sunday, or other day on which banks in the State of Utah are
authorized to be closed for the general transaction of business, shall be due on
the next succeeding day; provided, however, for purposes of determining late
charges, whether an Event of Default has occurred, or other matters pertaining
to the payment due dates, such payment shall be considered to have been
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due on its regularly-scheduled payment date. All payments received hereunder
shall be applied, first, to any late charge; second, any costs or expenses
incurred by Lender in collecting such payment or to any other unpaid charges or
expenses due hereunder; third, to accrued interest; and fourth, to principal;
provided, however, upon the occurrence of an Event of Default, Lender may change
the priority of the application of payments as it deems appropriate. Borrower
may prepay principal at any time without penalty.
7. COLLATERAL. The payment of all Advances, interest thereon, and other
fees and charges due under the Loan Documents shall be secured by, and Borrower
hereby grants Lender a security interest in and to the following (collectively,
the "COLLATERAL"):
a. The Assigned Contracts, as such term is used and defined in
an "Assignment of Contracts as Collateral" executed and delivered, or to be
executed and delivered, by Borrower and Nevada Housing Opportunities LLC, a
Nevada limited liability company, contemporaneously with this Agreement.
b. The real property and improvements acquired, in whole or
part, with the proceeds of any Advance on the Land Acquisition Subline,
including an assignment of all rents, leases, profits, and contracts with
respect thereto.
Borrower agrees to execute, or to cause to be executed, such
assignments, security agreements, deeds of trust, mortgages, financing
statements, and such other documents and instruments as Lender may reasonably
request in order to effect and perfect its security interest in the Collateral.
Such documents and instruments, together with this Agreement and the Promissory
Note, are referred to as the "LOAN DOCUMENTS."
8. CONDITIONS PRECEDENT TO ALL ADVANCES. Lender shall not be required
to make any Advance hereunder unless and until the following conditions have
been satisfied in a manner acceptable to Lender:
a. All of the Loan Documents required by Lender have been duly
executed, acknowledged (if so required), and delivered to Lender, and such
documents are in full force and effect.
b. A Corporate Resolution by Borrower's Board of Directors and
secretary's certificate have been duly executed and delivered to Lender and are
in full force and effect.
c. The representations and warranties contained in this
Agreement and the other Loan Documents are then true with the same effect as
though the representations and warranties had been made and given at such time.
The request for an Advance by Borrower shall constitute a reaffirmation to
Lender that all such representations and warranties remain true and correct in
all material respects to the same extent as though given the time such request
is made, and that all conditions precedent listed in this Paragraph 8 have been,
and continue to be, satisfied in all respects as of the date such request is
made.
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d. The security interest of Lender in and to the Collateral is
valid, perfected, in full force and effect, and constitutes a first lien
position senior in interest and right to all other liens, claims, and
encumbrances except as to matters which Lender has agreed to accept.
e. No Event of Default hereunder has occurred and is
continuing, and no condition exists or event has occurred which, with the
passing of time or the giving of notice or both, would constitute an Event of
Default hereunder.
f. All of the parties to the Assigned Contracts have given
their written consent to such assignment to Lender in form and content
satisfactory to Lender, including without limitation consents to give notice to
Lender of certain defaults or other matters pertaining to the Assignment
Contracts, and such consent is in full force and effect.
9. ADDITIONAL CONDITIONS PRECEDENT TO ADVANCES ON THE LAND ACQUISITION
SUBLINE. In addition to the conditions precedent described in Paragraph 8 above,
Lender shall not be required to make any Advance with respect to the Land
Acquisition Subline unless and until the following conditions have been
satisfied in a manner acceptable to Lender:
a. Borrower has executed, acknowledged, and delivered, or has
caused to be executed, acknowledged, and delivered, to Lender a deed of trust,
mortgage, and assignment of leases, rents, and contracts, all in form and
content acceptable to Lender, encumbering the real property and improvements
being purchased, in whole or part, with the proceeds of the intended Advance
(the "REAL PROPERTY").
b. Borrower has provided to Lender, at Borrower's expense, an
ALTA lender's policy of title insurance with respect to the Real Property,
insuring Lender's lien thereon for the principal amount of such Advance to be in
a first lien position senior in time, interest, and right to all other liens,
claims, and encumbrances except liens for taxes, assessments, and similar
governmental charges which are not yet due and payable; zoning restrictions,
mineral reservations, utility easements, covenants, conditions, and restrictions
of record which shall neither defeat nor render invalid the lien of Lender nor
materially impair the merchantability or value of the Real Property; and such
other matters which Lender has agreed in writing to accept (collectively, the
"PERMITTED ENCUMBRANCES"). Such policy of title insurance shall also contain
such endorsements as Lender may require, including without limitation
comprehensive (CLTA 100), variable rate (ALTA 6 or its equivalent), open street
(CLTA 103.7), and an endorsement deleting the creditor's rights exclusion.
c. Lender has obtained an appraisal on the Real Property from
an independent appraiser acceptable to it which has been reviewed and approved
by Lender and which substantiates that the amount of the requested Advance is
not more than 65% of the appraised value of such Real Property. The costs of
such appraisal shall be paid by Borrower.
d. For each Advance over $1,000,000, Borrower has provided to
Lender a current "phase I" environmental site assessment with respect to the
Real Property which has been prepared and issued by an environmental consultant
acceptable to Lender in accordance with
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industry standards, and such assessment and the matters reported therein are
acceptable to Lender. Borrower and any guarantor shall have executed and
delivered to Lender an environmental indemnity agreement with respect to the
Real Property that is in form and substance satisfactory to Lender.
e. If any buildings or similar improvements are located on the
Real Property, Borrower has provided to Lender, at Borrower's expense, a
property and casualty extended or all risks insurance policy insuring such
improvements for their full replacement value. Such insurance policy shall be
with a company acceptable to Lender, shall have an "agreed value" endorsement,
shall contain a mortgagee loss payable clause naming Lender, and shall include a
betterment and increased cost endorsement. Borrower shall provide Lender with a
certificate or evidence of such insurance using the XXXXX 27 format. During the
period that any improvements are being constructed on the Real Property,
Borrower shall also obtain, at Borrower's cost, "builder's all-risk" insurance
with completed operations coverage.
f. Borrower has provided such other documents, instruments,
certificates, and reports with respect to the Real Property as is customary for
Lender to obtain in connection with similar loans made by it which are secured
by similar property.
g. If the Real Property is to be transferred to or held in the
name of any affiliate of Borrower, such affiliate shall have executed and
delivered to Lender an absolute and unconditional guaranty as to such Advance in
form and content satisfactory to Lender.
10. REPRESENTATIONS AND WARRANTIES. In order to induce Lender to enter
into this Agreement and to make the Advances provided for herein, Borrower
represents and warrants to Lender as follows:
a. Borrower is a duly organized corporation, validly existing,
and in good standing under the laws of the State of Nevada with the power to own
its assets and to transact business in Nevada, and in such other states where
its business is conducted.
b. Borrower has the authority and power to execute and deliver
any document required hereunder and to perform any condition or obligation
imposed under the terms of such documents.
c. The execution, delivery and performance of this Agreement
and each document incident hereto will not violate any provision of any
applicable law, regulation, order, judgment, decree, article of incorporation,
by-law, indenture, contract, agreement, or other undertaking to which Borrower
is a party, or which purports to be binding on Borrower or its assets and will
not result in the creation or imposition of a lien on any of its assets, other
than the security interest granted to Lender in the Collateral.
d. There is no action, suit, investigation, or proceeding
pending or, to the knowledge of Borrower, threatened, against or affecting
Borrower or any of its assets which, if
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adversely determined, either in any single instance or in the aggregate, would
have a material adverse affect on the financial condition of Borrower, the
operation of its business, or the Collateral.
e. Any financial statements which have heretofore been
provided to Lender by Borrower or at Borrower's request, are correct, complete,
and truly, fairly, and accurately represent the financial position of Borrower
as of the date of such financial statements. Since the date of such statements
there have been no material adverse changes.
f. No information or report furnished by Borrower to Lender in
connection with the negotiation of this Agreement contained any material
misstatement of fact or omitted to state a material fact or any fact necessary
to make the statements contained therein not misleading.
g. Borrower has (1) filed all applicable federal, state, and
local tax returns or other statements required to be filed in connection with
its business, including those for income taxes, sales taxes, property taxes,
payroll taxes, payroll withholding amounts, FICA contributions, and similar
items; (2) maintained appropriate reserves for the accrual of the same; and (3)
paid when due all such taxes, or sums or assessments made in connection
therewith. Provided, however, that (until distraint, foreclosure, sale, or
similar proceedings have been commenced) nothing herein will require Borrower to
pay any sum or assessment, the validity of which is being contested in good
faith by proceedings diligently pursued and as to which adequate reserves have
been made.
h. Lender's security interest in the Collateral is a first
lien position senior in interest, right and title to all other liens, claims,
and encumbrances of any kind except the Permitted Encumbrances.
11. AFFIRMATIVE COVENANTS. So long as any sum remains unpaid hereunder,
in whole or in part, Borrower covenants and agrees that, except with the prior
written consent of Lender, it shall do the following:
a. Borrower shall furnish to Lender such financial reports,
statements, and information concerning itself, its business operations, and its
affiliates as Lender may from time to time require. At a minimum, such financial
information shall include (1) within 45 days after the end of each fiscal
quarter, quarter financial statements which may be internally prepared by
Borrower; (2) within 150 days after the end of Borrower's fiscal year, audited
annual financial statements containing an unqualified opinion by an independent
certified public accountant; and (3) within 45 days after filing, copies of
federal income tax returns, together with all exhibits and schedules thereto.
All financial statements provided under this clause shall set forth Borrower's
assets, liabilities, and operating statements prepared in accordance with
generally accepted accounting principles. Borrower shall furnish such additional
information regarding its business affairs and financial condition as Lender may
from time to time reasonably request.
b. Borrower shall notify Lender of any Event of Default under
the terms hereof and of any litigation, proceeding, or development which, either
in any single instance or in the aggregate, may have a material adverse effect
on Borrower's ability to perform under the terms of this Agreement or the other
Loan Documents.
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c. Borrower shall duly observe and conform to all valid
requirements of any governmental authority relative to the conduct of its
business, its properties, or its assets and will maintain and keep in full force
and effect its corporate existence and all licenses and permits necessary to the
proper conduct of its business.
d. Borrower shall keep proper books of records and accounts in
which full, true, and correct entries will be made of all dealings or
transactions relating to its business and activities.
e. Borrower shall (1) file all applicable federal, state, and
local tax returns or other statements required to be filed in connection with
its business, including those for income taxes, sales taxes, property taxes,
payroll taxes, payroll withholding amounts, FICA contributions, and similar
items; (2) maintain appropriate reserves for the accrual of the same; and (3)
pay when due all such taxes, or sums or assessments made in connection
therewith. Provided, however, that (until distraint, foreclosure, sale, or
similar proceedings have been commenced) nothing herein will require Borrower to
pay any sum or assessment, the validity of which is being contested in good
faith by proceedings diligently pursued and as to which adequate reserves have
been made.
f. Borrower shall permit any person designated in writing by
Lender to visit and inspect any of the corporate books and financial records of
Borrower and to discuss its affairs and finances with its principal officers,
all at such reasonable times and as often as Lender may in good faith request,
subject to any reasonable conditions imposed by Borrower.
g. Borrower shall at all times maintain (1) a minimum net
worth of $25,000,000, and (2) a maximum debt to worth ratio of 3.5 to 1. Such
determinations shall be made from time to time by Lender in accordance with its
standard internal procedures and practices, and Borrower shall fully cooperate
with Lender in providing such information as Lender may require to make such
determinations.
h. At least quarterly, Borrower shall provide to Lender a
certification signed by the chief executive officer or chief financial officer
of each partnership with respect to the Assigned Contracts stating that the
Assigned Contracts are in full force and effect, that no default has occurred
thereunder, and that no condition exists or event has occurred which, with the
giving of notice or the lapse of time or both, would constitute a default
thereunder. If such certificates cannot be provided because such certifications
would be untrue, such officers shall instead provide Lender with a written
statement describing in reasonable detail the grounds therefor.
12. NEGATIVE COVENANTS. So long as any amounts due hereunder remain
unpaid in whole or in part, Borrower covenants that it will not do any of the
following:
a. Unless Borrower is to be the surviving corporation,
Borrower shall not enter into any transaction of merger or consolidation, or
acquire the assets or business of a person or other entity without the prior
written consent of Lender, which consent shall not be unreasonably withheld or
delayed.
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b. Borrower shall not make any loans or advances to any person
or other entity other than in the normal and ordinary course of business now
conducted; or guarantee or otherwise become liable upon the obligations of any
person or other entity, except by endorsement of negotiable instruments for
deposit or collection in the normal and ordinary course of business. This
restriction will not apply to loans to any subsidiaries or affiliates of
Borrower.
c. Borrower shall not create or permit to exist any lien,
claim, or encumbrance on the Collateral or any part thereof, except as granted
to Lender and the Permitted Encumbrances. Borrower shall not do or refrain from
doing any act which may in any manner adversely affect Lender's interest in the
Collateral or diminish the value thereof.
13. RIGHT OF FIRST REFUSAL TO EXTEND CREDIT. Borrower shall give Lender
a right of first refusal to be the lender for any new loan or extension of
credit obtained by Borrower in excess of $1,000,000 prior to the Maturity Date.
Borrower shall give Lender written notice of any such proposed loan or credit
request, including information concerning any collateral, pricing, and other
terms and conditions applicable to such financing. Upon receipt of such notice
and any other information that Lender may reasonably request to evaluate the
credit request, Lender shall notify Borrower within seven (7) Banking Days, as
hereinafter defined, if it desires to extend such credit upon the terms and
conditions contained in such notice. If Lender fails to notify Borrower within
such time period, it shall be deemed to have waived its right of first refusal
and Borrower may thereafter obtain such loan or extension of credit upon
substantially the same terms and conditions contained in the notice. The waiver
of Lender's right of first refusal herein on one or more occasions shall not
constitute a waiver of such right for future loans or extensions of credit.
14. EVENTS OF DEFAULT. The occurrence of any of the following events or
conditions shall constitute an "EVENT OF DEFAULT" hereunder:
a. Failure to pay any principal or interest hereunder within
ten (10) days after the same becomes due.
b. Any representation or warranty made by Borrower in this
Agreement or any other Loan Document, in connection with any borrowing or
request for an Advance hereunder, or in any certificate, financial statement, or
other statement furnished by Borrower to Lender is untrue in any material
respect at the time when made.
c. Default by Borrower in the observance or performance of any
other covenant or agreement contained in this Agreement or the Promissory Note,
other than a default constituting a separate and distinct Event of Default under
this Paragraph 14, and the continuance of the same unremedied for a period of
twenty (20) days after notice thereof is given to Borrower.
d. Default by Borrower in the observance or performance of any
other covenant or agreement contained in any Loan Document other than this
Agreement or the Promissory Note, or in any other document or agreement made and
given in connection with this Agreement, other than a default constituting a
separate and distinct Event of Default under this Paragraph 14, and the
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continuance of the same unremedied for a period of thirty (30) days after notice
thereof is given to Borrower unless a shorter cure period is provided in such
other documents.
e. Any of the documents executed and delivered in connection
herewith for any reason ceases to be valid or in full force and effect or the
validity or enforceability of which is challenged or disputed by any signer
thereof, other than Lender.
f. Borrower shall default in the payment of principal or
interest on any other obligation for borrowed money other than hereunder, or
defaults in the payment of the deferred purchase price of property beyond the
period of grace, if any, provided with respect thereto, or defaults in the
performance or observance of any obligation or in any agreement relating
thereto, if the effect of such default is to cause or permit the holder or
holders of such obligation (or trustee on behalf of such holder or holders) to
cause such obligation to become due prior to the stated maturity.
g. Filing by Borrower or any guarantor of a voluntary petition
in bankruptcy seeking reorganization, arrangement or readjustment of debts, or
any other relief under the Bankruptcy Code as amended or under any other
insolvency act or law, state or federal, now or hereafter existing.
h. Filing of an involuntary petition against Borrower or any
guarantor in bankruptcy seeking reorganization, arrangement or readjustment of
debts, or any other relief under the Bankruptcy Code as amended, or under any
other insolvency act or law, state or federal, now or hereafter existing, and
the continuance thereof for sixty (60) days undismissed, unbonded, or
undischarged.
i. All or any substantial part of the property of Borrower
shall be condemned, seized, or otherwise appropriated, or custody or control of
such property is assumed by any governmental agency or any court of competent
jurisdiction, and is retained for a period of thirty (30) days.
j. The aggregate amounts owing and projected to be owing under
the Assigned Contracts for development fees, property management fees, incentive
management fees, and builders profits are less than $15,000,000 at any time
during 1998 or $12,000,000 at any time during 1999, based on reasonable
projections and assumptions acceptable to Lender and after excluding such
amounts that may be in dispute.
15. REMEDIES. Upon the occurrence of an Event of Default, Lender may
declare the entire unpaid principal balance of the Credit Line, together with
accrued interest thereon and other unpaid fees and charges owing under the Loan
Documents, to be immediately due and payable without presentment, demand,
protest, or other notice of any kind. Lender may suspend or terminate any
obligation it may have hereunder to make additional Advances. Lender may proceed
against Borrower, any guarantor, or the Collateral simultaneously or in any
order it chooses. To the fullest extent permitted by law, Borrower waives any
right to presentment, demand, protest, or notice of any kind in connection with
this Agreement. No failure or delay on the part of Lender in exercising any
right, power, or privilege hereunder will preclude any other or further exercise
thereof or the
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exercise of any other right, power, or privilege. The rights and remedies
provided herein are cumulative and not exclusive of any other rights or remedies
provided at law, in equity, or under any of the Loan Documents. Borrower agrees
to pay all costs of collection incurred by reason of the default, including
without limitation court costs and reasonable attorney's fees, including such
expenses incurred before, during, or subsequent to any litigation, bankruptcy,
reorganization, receivership, or other proceeding, and continuing to all such
expenses in connection with any appeal to higher courts arising out of matters
associated herewith.
16. NOTICES. Unless otherwise specifically provided herein, all notices
required to be given shall be in writing addressed to the respective party as
set forth below and may be personally served, sent by facsimile transmission, or
sent by overnight courier service or United States mail. Such notices shall be
deemed to have been given: (a) if delivered in person, when delivered; (b) if
sent by facsimile transmission, on the date of transmission if transmitted by
4:00 p.m. (Salt Lake City time) on a day on which Lender is generally open for
business (a "BANKING DAY") or, if not, on the next succeeding Banking Day; (c)
if delivered by overnight courier, one (1) Banking Day after delivery to such
courier properly addressed; or (d) if by United States mail, three (2) Banking
Days after depositing in the United States mail, postage prepaid and properly
addressed. Notices shall be addressed as follows:
If to Lender: KeyBank National Association
Attn: Xxxxxx Xxxxxxx
KeyBank Tower, Suite 1909
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Facsimile No.: (000) 000-0000
If to Borrower: Xxxxxx Incorporated
Attn: Xxxxx X. Xxxxxx
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Facsimile No.: (000) 000-0000
or to such other address as the party to whom such notice is intended shall have
previously designated by written notice to the serving party.
17. GENERAL PROVISIONS. All representations and warranties made in this
Agreement and the Promissory Note and in any certificate delivered pursuant
thereto shall survive the execution and delivery of this Agreement and the
making of any loans hereunder. This Agreement will be binding upon and inure to
the benefit of Borrower and Lender, their respective successors and assigns,
except that Borrower may not assign or transfer its rights or delegate its
duties hereunder without the prior written consent of Lender. The Loan Documents
shall be governed by and construed and interpreted in accordance with the laws
of the State of Utah without regard to its conflict of law rules. Time is of the
essence hereof. Lender may set off against any debt or account it owes Borrower,
whether presently existing or hereafter arising, in accordance with its rules
and regulations governing deposit
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accounts then in existence, and for such purposes is hereby granted a security
interest in all such accounts.
18. ENTIRE AGREEMENT. This Agreement, the Promissory Note, the other
Loan Documents, and all other documents and instruments made and given
contemporaneously herewith or pursuant to the terms hereof, constitute the
entire understanding and agreement of Borrower and Lender with respect to the
general subject matter thereof; supersede all prior negotiations, discussions,
and agreements with respect thereto; may not be contradicted by evidence of any
alleged oral agreement; and may not be amended, modified, or rescinded in any
manner except by written agreement signed by the parties which clearly and
unequivocally expresses an intent to amend, modify, or rescind the same.
19. JURY WAIVER. THE PARTIES HEREBY WAIVE THE RIGHT TO HAVE A JURY
DETERMINE OR ADVISE ANY MATTER, CLAIM, OR DISPUTE ARISING IN CONNECTION WITH THE
LOAN DOCUMENTS, THE TRANSACTIONS DESCRIBED THEREIN, OR THE ADMINISTRATION
THEREOF, INCLUDING SUCH MATTERS ARISING UNDER PRINCIPLES OF TORT, CONTRACT, OR
STATUTORY LAW.
EXECUTED on the day and year first written above.
BORROWER: XXXXXX INCORPORATED, a Nevada
corporation
By: /s/ XXXXX X. XXXXXX
--------------------------------
Title: President
-----------------------------
LENDER: KEYBANK NATIONAL ASSOCIATION
By:
--------------------------------
Title:
-----------------------------
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