EXHIBIT 10.2
AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT made as of this 22nd day of March,
2002, by and between XXXXXX AND SONS, LLC, a Florida limited liability company
(the "Borrower") and OHIO SAVINGS BANK, a federal savings bank with its
principal office in Cleveland, Ohio (the "Bank").
RECITALS:
Borrower and Bank have previously entered into that certain Loan
Agreement executed as of the 15th day of September, 2000 (the "Original Loan
Agreement");
The Borrower has requested Bank to make available to Borrower a
revolving line of credit aggregating up to $7,500,000.00 and a line of credit
for up to $1,000,000.00 for the purpose of issuing letters of credit, and the
Bank is willing to make such credit facilities available to the Borrower by
amending and restating in their entirety the terms and conditions of the
Original Loan Agreement as hereinafter set forth and secured as provided in this
Agreement.
NOW, THEREFORE, the Borrower and the Bank agree as follows:
ARTICLE 1
DEFINED TERMS; GENERAL MATTERS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
Affiliate - any director or officer of Borrower or any Person who,
directly, indirectly or beneficially, owns 5% or more of the capital stock of
Borrower or any member of the immediate family of any such officer, director or
stockholder, or any corporation or other entity which is controlled by,
controls, or is under common control with the Borrower, including, without
limitation, the Guarantor.
Agreement - this Amended and Restated Loan Agreement.
Applicable Laws - all laws, rules and regulations applicable to the
Person, conduct, transaction, covenant or Loan Document in question, including,
but not limited to, all applicable common law and equitable principles; all
provisions of all applicable state and federal constitutions, statutes, rules,
regulations and order of governmental bodies; and all orders, judgements and
decrees of all courts and arbitrators.
Bank - Ohio Savings Bank, a federal savings bank.
Base Rate - One percent (1.00%) per annum over the Prime Rate, adjusted
on the day of each increase or decrease in the Prime Rate.
Borrower - Xxxxxx and Sons, LLC, a Florida limited liability company.
Borrower's Report - the certificate or report of Borrower referred to
in Section 2.1(c) of this Agreement.
Business Day - a day, other than Saturday, Sunday, or days on which
national banks located in Boca Raton, Florida are authorized by law to close.
Capital Expenditures - expenditures made or liabilities incurred for
the acquisition of any fixed assets or improvements, replacements, substitutions
or additions thereto which have a useful life of more than one year, including
the direct or indirect acquisition of such assets by way of increased product or
service charges, offset items or otherwise and the principal portion of payments
with respect to Capitalized Lease Obligations.
Capitalized Lease Obligations - any Debt represented by obligations
under a lease that is required to be capitalized for financial reporting
purposes in accordance with GAAP, and the amount of such Debt shall be the
capitalized amount of such obligations determined in accordance with GAAP.
Closing Date - the date of this Agreement. The Closing Date is not
necessarily the date of initial funding of the Loan and the execution and
delivery of this Agreement and acceptance hereof shall not be deemed waiver by
Bank of any of the conditions to lending set forth in Article III hereof.
Collateral - all of Guarantor's right, title, and interest in and to
100% of the limited liability company interests in Borrower now owned or
hereafter acquired upon which a Lien has been or is purported or intended to
have been granted to the Bank under any of the Loan Documents.
Commitment Period - shall mean that period during which Bank is
obligated to make advances under the Loan hereunder, as provided in Section 2.1
hereof. The Commitment Period shall commence upon satisfaction of the conditions
to lending set forth in Article III and shall continue until the Maturity Date
(as may be extended), unless sooner terminated according to the provisions
hereof.
Debt - the sum of (i) indebtedness for borrowed money or for the
deferred purchase price of property or services, (ii) Capitalized Lease
Obligations, (iii) all other items which in accordance with GAAP would be
included in determining total liabilities as shown on a balance sheet of a
Person as at the date as of which Debt is to be determined.
Default Rate - the rate of interest at which the Obligations are to
bear interest after default by Borrower or the occurrence of an Event of
Default, which rate shall equal five percent (5%) in excess of the Base Rate,
calculated daily and computed on the actual days elapsed over a year of 360 days
(unless reference to a 365 or a 366-day year is necessary in order not to exceed
the highest rate permitted by Applicable Law), said rate to change as and when
the Base Rate changes.
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Environmental Regulations - all federal, state and local laws, rules,
regulations, ordinances, programs, permits, guidances, orders and consent
decrees relating to the environment or to public health, safety and
environmental matters, or petroleum products, or radon radiation, or oil or
hazardous substances, including, but not limited to, the Resource Conversation
and Recovery Act, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, the Toxic Substances Control Act, the Clean Water Act,
the Clean Air Act, the River and Harbor Act, the Water Pollution Control Act,
the Marine Protection Research and Sanctuaries Act, the Deep Water Port Act, the
Safe Drinking Water Act, the Superfund Amendments and Reauthorization Act of
1986, the Federal Insecticide, Fungicide and Rodenticide Act, the Mineral Lands
and Leasing Act, the Surface Mining Control and Reclamation Act, the Oil
Pollution Act of 1990, state and federal superlien and environmental cleanup
programs and laws, U.S. Department Transportation regulations, laws regulating
hazardous, radioactive and toxic materials and underground petroleum products
storage tanks, and all similar state, federal and local laws and regulations.
Event of Default - any one of the events enumerated in Section 9.1
hereof.
GAAP - generally accepted accounting principles in the United States of
America in effect from time to time consistently applied.
Guarantor - Xxxxxx Companies, LLC, a Florida limited liability company.
Letter or Letters of Credit - one or more stand-by letters of credit
issued by Bank for the account of Borrower and for the benefit of certain third
parties.
Lien - any encumbrance in property (real, personal or mixed, and
tangible or intangible) securing an obligation owed to, or a claim by, a Person
other than the owner of the property, whether such interest is based on the
common law, statute or contract, and including, but not limited to, the security
interest, security title or Lien arising from a security agreement, mortgage,
deed of trust, deed to secure debt, encumbrance, pledge, conditional sale or
trust receipt or a lease, consignment or bailment for security purposes. For the
purpose of this Agreement, Borrower shall be deemed to be the owner of any
property which it has acquired or holds subject to a conditional sale agreement
or other arrangement pursuant to which title to the property has been retained
by or vested in some other Person for security purposes.
Loan or Loans - the Revolving Loan and the LOC Loan evidenced by the
Revolving Note and the LOC Note, respectively (and any substitutions therefor,
extensions thereof, or renewals thereof).
Loan Commitment - that certain Loan Commitment between Bank and
Borrower dated as of July 5, 2000, as may be amended.
Loan Documents - this Agreement, the Notes, the guaranty agreement of
Guarantor, and each and every mortgage, deed of trust, guarantee, reimbursement
agreement, credit agreement, loan agreement, note, security agreement, financing
statement or other instrument executed and delivered to evidence the Loans or
any other Obligation, to constitute collateral for the Loans or
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any other Obligation, or to evidence security for the Loans or any other
Obligation, and any and all other agreements, instruments, and documents
heretofore, now or hereafter, executed by Borrower or Guarantor and delivered to
Bank in respect to the transactions contemplated by this Agreement.
Loan Year - each twelve (12) month period commencing with the date of
the Closing Date and on each anniversary thereof.
LOC Loan - the line of credit established for the benefit of Borrower
in a principal amount up to One Million Dollars ($1,000,000.00) as described in
Section 2.1(a)(ii) of this Agreement.
LOC Loan Account - the loan account established on the books of Bank
pursuant to Section 2.3(b) hereof.
LOC Note - the promissory note given to the Bank by Borrower evidencing
the LOC Loan.
Maturity Date - September 15, 2003, as may be extended pursuant to this
Agreement.
Maximum Rate - the maximum non-usurious rate of interest permitted by
Applicable Law that any time, or from time to time, may be contracted for,
taken, reserved, charged or received on the Debt in question or, to the extent
permitted by Applicable Law, under such Applicable Laws that may hereafter be in
effect and which allow a higher maximum non-usurious interest rate than
Applicable Laws now allow. Notwithstanding any other provision hereof, the
Maximum Rate shall be calculated on a daily basis (computed on the actual number
of days elapsed over a year of 365 or 366 days, as the case may be).
Maximum LOC Principal Amount - either (i) One Million Dollars
($1,000,000.00), or, (ii) if Overadvances have been made by the Bank to or on
behalf of the Borrower which have not yet been repaid, One Million Dollars
($1,000,000.00) plus the amount of such Overadvances which have not yet been
repaid.
Maximum Revolving Principal Amount - either (i) Seven Million Five
Hundred Thousand Dollars ($7,500,000.00), or, (ii) if Overadvances have been
made by the Bank to or on behalf of the Borrower which have not yet been repaid,
Seven Million Five Hundred Thousand Dollars ($7,500,000.00) plus the amount of
such Overadvances which have not yet been repaid.
Notes - the Revolving Note, the LOC Note, and each other promissory
note executed and delivered by Borrower to Bank evidencing all or part of the
Loans (and any substitutions therefor, extensions thereof, or renewals thereof).
Obligations - the Loans and all other advances, debts, liabilities,
obligations, covenants and duties owing, arising, due or payable from Borrower
to Bank of any kind or nature, pursuant to the Loan, present or future, whether
or not evidenced by any note, guaranty or other instrument, whether arising
under this Agreement or any of the other Loan Documents or
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otherwise, whether direct or indirect (including those acquired by assignment),
absolute or contingent, primary or secondary, due or to become due, now existing
or hereafter arising and however evidenced or acquired. The term includes,
without limitation, all interest, charges, expenses, fees, attorneys' fees and
any other sums chargeable to Borrower under any of the Loan Documents and all
rights Bank may at any time or times have to reimbursement in connection with
any letter of credit or guaranty issued for Borrower's benefit. It is the intent
of the parties that the term "Obligations" does not refer to other loans now or
hereafter existing between Borrower (or its subsidiaries) and Bank.
Overadvance - an advance by Bank hereunder or under any Notes when an
Overadvance Condition exists or would result from the making of such advance.
Overadvance Condition - at any date, a condition such that the
outstanding principal amount of the applicable Loan on such date exceeds the
Maximum Revolving Principal Amount, with respect to the Revolving Loan, or the
Maximum LOC Principal Amount, with respect to the LOC Loan.
Permitted Liens - any Lien of a kind specified in Section 7.2 of this
Agreement.
Person - an individual, partnership, corporation, joint stock company,
firm, land trust, business trust, limited liability company, limited liability
partnership, unincorporated organization, or other business entity, or a
government or agency or political subdivision thereof.
Prime Rate - the rate designated as the "Prime Rate" in the "Money
Rates" table published each business day in the Midwest edition of the Wall
Street Journal. If such rate is unavailable at any time, the Bank shall select a
new index or other appropriate measure as a basis for setting the interest rate
in lieu thereof. The Prime Rate might or might not be the lowest interest rate
charged by Bank for commercial or other extensions of credit.
Revolving Loan - the line of credit established for the benefit of
Borrower in a principal amount up to Seven Million Five Hundred Thousand Dollars
($7,500,000.00) as described in Section 2.1(a)(i) of this Agreement.
Revolving Loan Account - the loan account established on the books of
Bank pursuant to Section 2.3(a) hereof.
Revolving Note - the promissory note given to the Bank by Borrower
evidencing the Revolving Loan.
Solvent - as to any Person, means such Person (i) owns property, real,
personal, and mixed, whose aggregate fair saleable value is greater than the
amount required to pay all of such Person's Debt (including contingent debts),
and (ii) is able to pay all of its Debt as such Debt matures and (iii) has
capital sufficient to carry on its business and transactions and all business
and transactions in which it is about to engage.
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Subordinated Debt - any Debt of the Borrower owed to one or more of the
Guarantors or to any Affiliate and which is fully subordinated to the Loan
(including principal, interest, and agreed charges) in a manner satisfactory to
the Bank (which may be either according to its terms or by separate agreement).
Subsidiary - any corporate entity or partnership, or other business
entity, a controlling interest of which is owned by the Borrower.
Tangible Net Worth - the consolidated member's equity of Borrower (i)
less the book value of all intangibles, such as goodwill, patents, trademarks
and other similar intangibles, as determined in accordance with GAAP after
deduction of all applicable reserves (ii) less all amounts due from Guarantor
and Affiliates of Borrower and (iii) plus all amounts due to Guarantor and
Affiliates of Borrower (specifically and expressly excluding Debt of the
Borrower and its Subsidiaries to BankAtlantic, FSB or BankAtlantic Bancorp
obtained in the ordinary course of and pursuant to the reasonable requirements
of the land acquisition, real estate ownership, investments, lending, leasing,
operation or development, land development, homebuilding and other real estate
related businesses now or hereinafter conducted by the Borrower and/or its
Subsidiaries (collectively "Authorized Business"), including without limitation,
any loans for letters of credit issued in connection with the acquisition or
development of land or the construction of dwelling units thereon), including
the loans identified on Schedule 1.1.
1.2 Accounting Terms. All accounting terms used herein shall be
construed in accordance with GAAP.
1.3 Interpretation. The terms "herein", "hereof', and "hereunder",
and other words of similar import refer to this Agreement as a whole and not to
any particular section, paragraph or subdivision. Any pronouns used shall be
deemed to cover all genders. Whenever the singular or plural number is used
herein, it shall equally include the other. All references to statutes and
related regulations shall include any amendments of same and any successor
statutes and regulations. All references to any instruments or agreements,
including, without limitation, references to any of the Loan Documents shall
include any and all modifications or amendments thereto and any and all
extensions or renewals thereof.
1.4 Uniform Commercial Code. All other terms contained in this
Agreement shall, unless otherwise defined herein or unless the context otherwise
indicates, have the meanings provided for by the Uniform Commercial Code of the
State of Florida.
1.5 Effect on Prior Documents. This Agreement amends and restates
in its entirety the terms, conditions and provisions of the Original Loan
Agreement, and to the extent of any conflict between this Agreement and any of
the loan documents executed in connection with the Original Loan Agreement (all
of which are being amended and restated in connection with this Agreement), the
terms, conditions and provisions of this Agreement shall govern and control.
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ARTICLE 2
THE LOANS
2.1 Loans.
(a) Subject to all terms set forth herein but only during
the Commitment Period and for so long as no Event of Default exists, Bank
agrees, from time to time and on the terms hereinafter set forth:
(i) to loan to Borrower, when requested by
Borrower, principal amounts with the outstanding principal balance not to exceed
Seven Million Five Hundred Thousand and no/100 Dollars ($7,500,000.00) (the
"Revolving Loan"). Within the aforesaid limit, the Borrower may borrow, make
payments, and reborrow under this Agreement, subject to the provisions hereof.
(ii) to issue Letters of Credit for the benefit
of Borrower, when requested by Borrower, the aggregate amount of which Letters
of Credit shall not exceed One Million Dollars ($1,000,000.00) (the "LOC Loan").
Within the aforesaid limit, the Borrower may direct Bank to issue Letters of
Credit, and upon expiration of any Letters of Credit, direct Bank to issue
additional Letters of Credit, subject to the provisions hereof, provided that at
no time during the Commitment Period or at any time thereafter shall the
aggregate amount of such non-expired Letters of Credit outstanding exceed One
Million Dollars ($1,000,000.00). To the extent that any Letter of Credit is
drawn upon, such monies shall be deemed advanced under the LOC Note.
(b) The obligation to repay the Loans shall be evidenced
by the Notes payable to the order of the Bank and maturing upon the earlier to
occur of an Event of Default or the expiration of the Commitment Period. Amounts
due under the Notes and otherwise under this Agreement and under the Loan
Documents shall be reflected in the Loan Account.
(c) Bank may, in its sole discretion, require that each
advance made under the Revolving Loan, and each Letter of Credit issued under
the LOC Loan, be effected by Borrower's submitting (and the Bank's receiving) a
Borrower's Report in such form as may be reasonably requested by Bank from time
to time at least one (1) banking day prior to the date Borrower desires the
advance to be made and at least two (2) banking days prior to the date Borrower
desires the Letter of Credit to be issued. Bank shall, if all the terms and
provisions of this Agreement have been met, including, without limitation, the
absence of an Event of Default hereunder, make such advances or issue such
Letters of Credit. Each such Borrower's Report shall be signed by an officer or
employee of Borrower authorized by Borrower to execute such reports, whose
name(s) shall be included in a certificate furnished to the Bank.
(d) At its discretion, Bank may make advances to Borrower
under the Revolving Loan without specific request by automatic advance based on
availability in accordance with procedures established by Bank. In addition, as
an accommodation to Borrower, Bank may permit telephonic requests for loans and
electronic transmittal of instructions, authorizations, agreements or reports to
Bank by Borrower. Unless Borrower specifically directs
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Bank in writing not to accept or act upon telephonic or electronic
communications from Borrower, Bank shall have no liability to Borrower for any
loss or damage suffered by Borrower as a result of Bank's honoring of any
requests, execution of any instructions, authorizations or agreements or
reliance on any reports communicated to Bank telephonically or electronically
and purporting to have been sent to Bank by Borrower and Bank shall have no duty
to verify the origin of any such communication or the authority of the person
sending it.
(e) If the outstanding principal amount of the Revolving
Loan exceeds the Maximum Revolving Principal Amount at any time during the
Commitment Period, or if the outstanding principal balance of the LOC Loan
exceeds the Maximum LOC Principal Amount at any time during the Commitment
Period, the Borrower shall immediately pay the Bank an amount equal to such
excess as a payment on the principal amount of the Revolving Loan or the LOC
Loan, as applicable. Without limiting the foregoing, which provision may be
enforced by Bank at any time and which provision, as well as the other
provisions hereof, may not under any circumstance be waived or altered by a
course of dealing or otherwise, insofar as Borrower may request and Bank may be
willing in its sole and absolute discretion to make Overadvances, Bank shall
enter such Overadvances as debits in the Revolving Loan Account or LOC Loan
Account, as applicable. All Overadvances shall be payable on demand, shall be
secured by the Collateral and shall bear interest as provided in this Agreement
for Loans generally. Bank may in its sole discretion honor any request (or
deemed request) for an advance even though an Overadvance Condition then exists,
or would exist with the making of such advance, and without regard to the
existence of, and without waiving, any default or Event of Default.
(f) Each borrowing under the Revolving Loan shall be
effected by crediting the amount thereof to the regular checking account of
Borrower maintained with the Bank or with another bank approved by the Bank
(recognizing that BankAtlantic, FSB, Comerica Bank and Bank of America are
approved by Bank).
(g) The principal amount of the Revolving Loan and the
LOC Note outstanding from time to time hereunder shall bear interest at the Base
Rate. Interest shall be paid to Bank on the amount of the Revolving Loan and the
LOC Note outstanding and shall be payable monthly in arrears on the first day of
each month beginning with April 1, 2002, and continuing on the same day of each
month thereafter through and until such time as there remains no unpaid
principal balance on the amounts advanced to the Borrower under the applicable
Loan. The applicable interest rate on the Loans shall change as and when the
Base Rate changes from time to time. Interest shall be calculated based on a 360
day year (i.e., computed on the actual number of days elapsed over a year of 360
days unless reference to a 365 or a 366-day year is necessary in order not to
exceed the highest rate permitted by Applicable Law). From and after the
occurrence of an Event of Default until the Event of Default is cured, the
principal amount of both Loans outstanding from time to time shall, subject to
the provisions of the following subsection, bear interest at the Default Rate.
Additionally, for each payment due pursuant to this Agreement which is more than
ten (10) calendar days overdue, Bank may charge a fee (the "Late Charge") equal
to five percent (5%) of each overdue payment to reimburse Bank for the extra
expense involved in handling delinquent payments.
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(h) Borrower acknowledges and agrees that the provisions
herein and in the Notes relating to the Default Rate and the Late Charge
represent a fair and reasonable estimate by Borrower and Bank of a fair average
compensation for the loss that may be sustained by Bank due to the failure of
Borrower to make timely payments with respect to the Obligations and for the
cost and expenses that may be incurred by Bank by reason of the occurrence of an
Event of Default, the parties recognizing that the damages caused by such extra
administrative expenses and loss of the use of funds is impracticable or
extremely difficult to ascertain or estimate. Interest at the Default Rate shall
be paid without prejudice to the rights of Bank to collect any other amounts
provided to be paid hereunder.
(i) Additional Conditions to the LOC Loan.
(a) Form of and Expiry Dates of Letters of
Credit. Each Letter of Credit shall be in the form customarily issued by Bank
without modification. Each Letter of Credit shall be issued for a term not to
exceed one year with provisions for renewal at the option of Bank.
Notwithstanding anything contained in the immediately preceding sentence to the
contrary, under no circumstances shall the ultimate expiry date of any Letter of
Credit extend beyond the last day of the Commitment Period, as may be extended
pursuant to the terms of this Agreement.
(b) Evidence of Indebtedness of LOC Loan.
Simultaneously with the execution of this Agreement, Borrower has executed the
LOC Note, which LOC Note shall evidence the indebtedness of the LOC Loan. If any
funds are drawn under any Letter of Credit, such funding shall automatically be
an advance to Borrower under the LOC Note made on Borrower's account directly to
Bank, and until such time as such funds so advanced are repaid by Borrower to
Bank in full, such advances shall accrue interest at the rate and in the manner
more particularly set forth in Section 2.1(g) hereof. Borrower understands,
acknowledges and agrees that, as more fully set forth in the LOC Note, any
language contained in a Letter of Credit application or other documentation
relating to evidencing the indebtedness under the LOC Loan or any Letter of
Credit that would be drawn upon is evidencing the same indebtedness as the LOC
Note and under no circumstances shall any LOC application or related
documentation evidence any new or additional indebtedness whatsoever.
(c) Conditions Precedent to the Issuance of
Letter of Credit. Prior to Bank issuing a Letter of Credit, the following
conditions precedent shall be satisfied in full as determined by Bank:
(1) No Event of Default shall exist;
(2) Borrower shall execute and have
timely delivered a Borrower's Report and any and all other documents required by
Bank in connection with issuing the applicable Letter of Credit;
(3) Borrower shall pay to Bank in cash
a fee for each Letter of Credit an amount equal to Fifty Dollars ($50.00) plus
one percent (1%) of the face amount of such Letter of Credit, provided that such
fee shall in no event be less than $150, and further
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provided that such fee shall be paid in advance for each year or portion of a
year during which each Letter of Credit shall be in effect. Additionally,
Borrower shall pay all issuance fees, renewal fees, amendment fees and
application fees upon the issuance, renewal or amendment, as applicable, of each
Letter of Credit.
(4) Each of the other documents,
certificates and instruments required under this Agreement shall have been
executed and delivered to Bank.
(5) All other conditions precedent
applicable (as determined by Bank) to the issuance of a Letter of Credit shall
have been satisfied in full.
Notwithstanding anything to the contrary contained in this Agreement, in the
event that the aggregate face value of the outstanding and unexpired Letters of
Credit (the "Aggregate LOC Amount") exceeds the Maximum LOC Principal Amount or,
if issuing such Letter of Credit would cause the Aggregate LOC Amount to exceed
the Maximum LOC Principal Amount, the Bank shall not be obligated to issue such
Letter of Credit.
(d) Update of Representations and Warranties. Each
request by Borrower for the issuance of a Letter of Credit shall constitute a
new and independent representation and warranty to Bank with respect to all of
the matters set forth in this Agreement as of the date of each such request.
2.2 Loan Fee. Borrower shall pay to Bank a loan fee of $25,000.00
(the "Loan Fee"), which shall be deemed fully earned at the closing of the
transactions contemplated hereby, and shall not be subject to rebate except as
may be required by any Applicable Law. In addition to the Loan Fee, the Borrower
shall pay each quarter in arrears (as set forth below) to Bank a quarterly loan
fee as a percentage of the unused balance of the Revolving Loan (the "Quarterly
Revolving Loan Fee"). The Quarterly Revolving Loan Fee shall be calculated by
multiplying .000625 by the difference between the Maximum Revolving Principal
Amount and the average daily closing balance of the Revolving Loan Account for
the preceding three (3) months. In addition to the Loan Fee and the Quarterly
Revolving Loan Fee, the Borrower shall pay each quarter in arrears (as set forth
below) to Bank a quarterly loan fee as a percentage of the unused or unissued
balance of the LOC Loan (the "Quarterly LOC Loan Fee"). The Quarterly LOC Loan
Fee shall be calculated by multiplying .000625 by the difference between the
Maximum LOC Principal Amount and the average daily closing balance of the LOC
Loan Account for the preceding three (3) months. The Loan Fee, the Quarterly
Revolving Loan Fee, the Quarterly LOC Loan Fee, and the Annual Loan Fee (as
defined in Section 2.10) shall compensate Bank for the costs associated with the
origination, structuring, processing, approving and closing of the transactions
contemplated by this Agreement, including, but not limited to, administrative,
general overhead and lost opportunity costs, but not including any out-of-pocket
or other expenses for which Borrower has agreed to reimburse Bank pursuant to
the Loan Commitment.
2.3 Loan Accounts.
(a) Bank shall enter disbursements with respect to the
Revolving Loan hereunder or under the Revolving Note as debits to the Revolving
Loan Account and shall also record in
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the Revolving Loan Account all payments made by Borrower with respect to the
Revolving Loan and any proceeds of Collateral which are finally paid to Bank,
and may record therein, in accordance with customary accounting practice, all
charges and expenses properly chargeable to Borrower hereunder with respect to
the Revolving Loan.
(b) Bank shall enter disbursements with respect to the
LOC Loan hereunder or under the LOC Note as debits to the LOC Loan Account and
shall also record in the LOC Loan Account all payments made by Borrower with
respect to the LOC Loan and any proceeds of Collateral which are finally paid to
Bank, and may record therein, in accordance with customary accounting practice,
all charges and expenses properly chargeable to Borrower hereunder with respect
to the LOC Loan.
2.4 Prepayment. Borrower shall have the right to prepay the
indebtedness, in whole or in part, at any time.
2.5 Term. This Agreement shall remain in force and effect until
the Loans and the Obligations, and any renewals or extensions, and all interest
thereon and costs provided for herein with regard to either of them, have been
indefeasibly paid or satisfied in full and until the Bank has no further
obligation to advance funds to the Borrower hereunder. Subject to the foregoing
sentence, Borrower shall have the right to terminate this Agreement prior to
expiration of the Commitment Period upon payment of all outstanding principal,
accrued interest and other charges owing under the terms of this Agreement. The
indemnities provided for in Article X shall survive the payment in full of the
Loans and the Obligations and the termination of this Agreement.
2.6 Use of Proceeds. Borrower and its subsidiaries shall use the
proceeds of the Revolving Loan and the line of credit available under the LOC
Loan for the following purposes and no other: to facilitate their working
capital needs in their land acquisition, land development, homebuilding and
other real estate related businesses.
2.7 Payments. All sums paid to the Bank by Borrower hereunder
shall be paid directly to the Bank in immediately available funds no later than
3:00 p.m., Boca Raton, Florida time on the date on which payment is due, except
if such date is not a Business Day such payment shall then be due on the first
Business Day after such date, but interest shall continue to accrue until the
date payment is received. Any payment received after 3:00 p.m. Boca Raton,
Florida time shall be deemed to have been received on the immediately following
Business Day for all purposes, including, without limitation, the accrual of
interest on principal. The Bank shall send Borrower, if and when reasonably
requested by Borrower, statements of all amounts due hereunder, which statements
shall be considered correct and presumptively binding on the Borrower unless the
Borrower notifies the Bank to the contrary within ten (10) days of its receipt
of any statement which it deems to be incorrect. The Bank may, in its sole
discretion, (a) charge against any deposit account of the Borrower all or any
part of any amount due hereunder, including, without limitation, the fees and
expenses of the Bank to be paid by Borrower as provided for in Sections 11.1
through 11.3 of this Agreement, and any commitment or servicing fee due the
Bank, and (b) advance to Borrower, and charge to the Revolving Loan, a sum
sufficient each month to pay all interest accrued on the Loans and fees and
expenses due under
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this Agreement, including, without limitation, the fees and expenses of the Bank
to be paid by Borrower as provided for in Sections 11.1 through 11.3 of this
Agreement, and any commitment or servicing fee due the Bank, during or for the
immediately preceding month or any month prior. Borrower shall be deemed to have
requested an advance under the Loans upon the occurrence of an overdraft in any
of Borrower's checking accounts maintained with the Bank or another bank owned
by Bank.
2.8 Application of Payments. Borrower irrevocably waives the right
to direct the application of any and all payments and collections at any time or
times hereafter received by Bank from or on behalf of Borrower or from any of
the Collateral, and Borrower does hereby irrevocably agree that Bank shall have
the continuing exclusive right to apply such payments and collections received
at any time or times hereafter by Bank or its agent against the Obligations, in
such manner as Bank may deem advisable, notwithstanding any entry by Bank upon
any of its books and records. If for any reason a credit balance exists in the
applicable Loan Account, such credit balance shall not accrue interest in favor
of Borrower but shall be available to Borrower at any time or times for so long
as no Event of Default exists.
2.9 Limitations. The Loans shall, notwithstanding any course of
dealing or conduct on the part of the parties hereto, or any other covenants or
undertakings of the parties hereunder, be fully due and payable without further
notice or demand from Bank upon the expiration of the Commitment Period. Time is
of the essence of this Agreement.
2.10 Renewal. On or before June 30 of each calendar year (other
than the year of the Maturity Date, as may be extended), Bank will review its
financing commitment pursuant to the terms of this Agreement, and may, at its
sole discretion, offer to Borrower the option to extend the term of both of the
Loans for a one (1) year period. On or before June 30 of each calendar year
(other than the year of the Maturity Date, as may be extended), if Borrower
desires to renew the Loans but reduce the amount of either Loan, Borrower shall
deliver written notice to the Bank to such effect. Upon approval by the Bank of
an extension of the Loans pursuant to this Section 2.10, the Borrower will pay
to Bank a renewal fee for such year equal to one quarter of one percent (0.25%)
of the combined principal amounts of the Notes evidencing the Loans (the "Annual
Loan Fee"), as well as all costs and expenses incurred by Bank in connection
with such renewal, including without limitation, legal expenses of the Bank's
attorneys. As a result of such renewal, the Maturity Date will be extended by
one year, and the terms of this Section 2.10 shall apply to the extended
Maturity Date for purposes of renewing the Loans for an additional year
thereafter.
ARTICLE 3
CONDITIONS OF LENDING
Bank shall not be obligated to make the Loans, or issue any advance
under the Revolving Loan or issue any Letter of Credit under the LOC Loan,
unless at the time thereof the following conditions shall have been met:
3.1 LLC Proceedings. All proper limited liability company
proceedings shall have been taken by Borrower to authorize this Agreement and
the transactions contemplated hereby.
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3.2 Documentation. All instruments and proceedings in connection
with the transactions contemplated by this Agreement shall be satisfactory in
form and substance to Bank, and Bank shall have received on the date of this
Agreement copies of all documents, including records of limited liability
company proceedings, which it may have requested in connection therewith,
including, without limitation, certified copies of resolutions adopted by the
Member of the Borrower, certificates of good standing, and certified copies of
the Articles of Organization and Operating Agreement, and all amendments
thereto, of the Borrower.
3.3 Loan Documents. Bank shall have received executed copies of
all instruments evidencing or securing the Loan.
3.4 No Default. No event shall have occurred or be continuing
which constitutes an Event of Default or which would constitute an Event of
Default with the giving of notice or the lapse of time or both; and neither the
business nor assets nor the condition, financial or otherwise, of Borrower shall
have been adversely affected in any material manner which is not reimbursed or
otherwise paid for by applicable insurance as the result of any fire, explosion,
accident, strike, riot, condemnation, act of God, or any other event or
development.
3.5 Reports. Bank shall have timely received all reports and
information from Borrower called for under the Agreement.
3.6 Payment of Fees. Payment by Borrower of all fees and expenses
required by this Agreement.
3.7 Opinion of Counsel. Bank shall have received on the date of
this Agreement an opinion from counsel to Borrower satisfactory to Bank and with
respect to such other matters relating to the transactions contemplated hereby
as the Bank may reasonably request.
3.8 Incumbency Certificate. Bank shall have received an incumbency
certificate, dated as of the date of this Agreement, executed by the President,
Senior Vice President or Chief Financial Officer (as applicable) of Borrower,
which shall identify by name and title and bear the signature of the officer of
such Borrower authorized to sign this Agreement and the other Loan Documents on
behalf of the Borrower. The Bank shall be entitled to rely upon such incumbency
certificate in completing the transactions contemplated herein or in any Loan
Document and in all its other dealings with Borrower.
3.9 Material Adverse Changes. As of the Closing Date, there shall
be no material adverse change in the credit or financial condition of Borrower.
If any action, voluntary or otherwise, is commenced under any bankruptcy,
insolvency, reorganization or similar laws by or against the Borrower or any
general partner or affiliate of any of the Borrower, or any person that owns or
controls (as defined in the laws and regulations applicable to Bank), any of the
foregoing, or if any property owned by the Borrower becomes subject to any
foreclosure, levy, execution to satisfy indebtedness or similar action, or if
the Borrower or any partner or affiliate of any of the Borrower is in default
under any other indebtedness (other than ordinary trade payables not exceeding
$50,000 in the aggregate and not more than 30 days past due), the Bank
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shall not be obligated to close either of the Loans. It is a condition to
closing that, as of the Closing Date, there shall have occurred no change in
applicable law or regulations or interpretations thereof which would make it
illegal for the Bank to perform its obligations pursuant to the Loan Commitment
or which would have a material adverse effect on the Bank in the event that the
transactions contemplated by the Loan Commitment were to be consummated (which
lien must be satisfied on the closing date).
3.10 Lien Search. Bank shall have received a report from the
Florida Secured Transaction Registry (or similar division) indicating that there
are no Liens against the Collateral.
3.11 Disbursement Authorization. Borrower shall have delivered to
Bank such disbursement authorizations, draw requests, and other documents and
writings as Bank shall have requested evidencing Borrower's request for
disbursement of funds.
3.12 Guarantor Loan. It is acknowledged that as a condition to the
execution of the Original Loan Agreement and the funding of the Loan,
Guarantor's predecessor by merger and Bank simultaneously entered into that
certain Loan Agreement by and between Guarantor's predecessor by merger and Bank
in an amount not to exceed Fourteen Million Five Hundred Thousand and no/100
Dollars ($14,500,000.00) (the "Second Loan"). On each date subsequent to the
Closing Date under this Agreement and as a condition to the receipt of any
advances by Borrower from Bank, or Letters of Credit issued by Bank, pursuant to
this Agreement, there may not be any defaults (beyond any applicable cure
periods) under the Second Loan. Any defaults under the Second Loan not cured
within the applicable cure period shall constitute a default under this
Agreement as further provided herein, which default shall be deemed cured only
upon curing the default under the Second Loan.
3.13 Additional Documents. Bank shall have received such additional
legal opinions, certificates, proceedings, instruments and other documents as
the Bank or its counsel may reasonably request to evidence (i) compliance by the
Borrower with legal requirements, (ii) the truth and accuracy, as of the date of
this Agreement, of the representations of the Borrower contained herein, and
(iii) the due performance or satisfaction by the Borrower, at or prior to the
date hereof, of all agreements required to be performed and all conditions
required to be satisfied by the Borrower pursuant hereto, including, without
limitation, all such matters as are listed on preliminary closing checklist
issued by Lender and furnished to Borrower.
3.14 Remainder Schedule 3.14 sets forth any matters in this Article
3 which have not been satisfied as of the execution of this Loan Agreement.
ARTICLE 4
SECURITY FOR LOAN
4.1 Security. The Loan and each Note shall be secured by the
limited guarantee of the Loan by the Guarantor, which will be secured by a
second priority limited security interest in Guarantor's limited liability
company interests as a member of Borrower, pursuant to that certain
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Amended and Restated Pledge Agreement of even date herewith (the "Pledge
Agreement"), subject to the lien of the Second Loan.
The Guarantor agrees to execute and deliver, or cause the execution and
delivery of, such non-recourse, except with respect to the Collateral, and
security agreements, assignments, guaranties, consents, subordination
agreements, and financing statements as may be required by Bank to evidence such
security, all non-recourse, except with respect to the Collateral, and in form
reasonably satisfactory to Bank.
4.2 Limited Guaranty. Notwithstanding any other provision of this
Loan Agreement, Guaranty or the Pledge Agreement to the contrary, it is
understood and agreed that the Guarantor shall not be personally liable for the
payment of the obligations expressed in this Loan Agreement, the Limited
Guaranty, Pledge Agreement or any other Loan Document. Nothing in this
paragraph, however, shall in any way limit or impair the Lender from pursuing
any and all of its rights and remedies against the Pledged Collateral under the
Pledge Agreement (provided that no deficiency judgment or any personal monetary
liability shall be entered or sought against the Guarantor).
ARTICLE 5
REPRESENTATIONS, WARRANTIES AND GENERAL COVENANTS
Borrower represents, warrants and covenants to and with Bank, which
representations, warranties and covenants shall survive until the Obligations
are paid in full, that:
5.1 Organization and Qualification. The Borrower is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Florida; has the power to own its properties and to
carry on its business as now being conducted; and is duly qualified to do
business and is in good standing in every jurisdiction in which the character of
the properties owned by it or in which the transaction of its business makes its
qualification necessary.
5.2 Power and Authorization. Borrower has full power and authority
to enter into this Agreement, to borrow hereunder, to execute and deliver the
Notes and the other Loan Documents and to incur the obligations provided for
herein, all of which have been authorized by all proper and necessary action.
5.3 Enforceability. This Agreement and each of the other Loan
Documents constitute, and each Note when executed and delivered for value
received will constitute, a valid and legally binding obligation of Borrower
enforceable in accordance with their respective terms and will not violate,
conflict with, or constitute any default under any law, government regulation,
Borrower's Articles of Organization or Operating Agreement, or any other
agreement or instrument binding upon Borrower, subject to bankruptcy and
insolvency laws, equitable principles and requirements as to commercial
reasonableness or good faith.
5.4 Pending Actions. As of the Closing Date, Borrower is not a
defendant, or a plaintiff against whom a counterclaim or crossclaim has been
asserted, in any civil or criminal
15
action, suit or litigation, and no action or investigation is pending or, so far
as Borrower's officers and directors know, threatened before or by any court or
administrative agency which might result in any material adverse change in the
financial condition, operations or prospects of Borrower.
5.5 Financial Statements. The financial statements of Borrower
dated September 30, 2001 heretofore delivered to Bank and all other financial
statements and reports furnished by Borrower to Bank are complete and correct
and fairly present the financial condition of Borrower and the results of its
operations and transactions as of the dates and for the periods referred to and
have been prepared in accordance with GAAP applied on a consistent basis
throughout the periods involved. There are no material liabilities, direct or
indirect, fixed or contingent, of Borrower as of the date of such financial
statements which are not reflected therein or in the note(s) thereto. Neither
said financial statements nor any other financial statements, reports, and
information furnished by Borrower to Bank contains any untrue statement of a
material fact or omits a material fact necessary to make the statements
contained therein or herein not misleading. There is no fact which Borrower has
failed to disclose to Bank in writing which materially affects adversely or, so
far as Borrower can now foresee, will materially affect adversely the
Collateral, business, prospects, profits or condition (financial or otherwise)
of Borrower or the ability of Borrower to perform this Agreement. It is agreed
that financial statements provided to the Bank pursuant to this Agreement will
be consolidated financial statements of Guarantor provided to Borrower by
Guarantor or provided directly to Bank by Guarantor on behalf of Borrower.
5.6 Title to Properties. Borrower has good and marketable title to
all of its assets, (to the extent owned), subject to matters now or hereafter
existing.
5.7 Taxes. Borrower has filed all federal, state and local tax
returns which are required to be filed and has paid, or made adequate provision
for the payment of, all taxes which have or may become due pursuant to said
returns or to assessments received by Borrower, including, without limitation,
all applicable federal, state, and local employee withholding taxes.
5.8 Title to Collateral. Guarantor is the sole owner of the
Collateral free from any adverse Liens, security interests or other
encumbrances. Borrower shall defend, or shall cause Guarantor to defend, the
Collateral against all claims and demands of all other parties who at any time
claim any interest in the Collateral.
5.9 Place of Business. Borrower's chief executive office is
located at 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000, and it has
not changed the location of its chief executive office within the last three (3)
years.
5.10 Full Disclosure. All information furnished by Borrower and
Guarantor to the Bank concerning the Borrower, its financial condition, the
Collateral, or otherwise for the purpose of obtaining credit or an extension of
credit, is, or will be at the time the same is furnished, accurate and correct
in all material respects and complete insofar as completeness may be necessary
to give the Bank a true and accurate knowledge of the subject matter.
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5.11 Borrower's Name. Other than the name change resulting from the
merger of Xxxxxx to Xxxxxx and Sons, Inc., with and into Xxxxxx and Sons, LLC,
Borrower has not otherwise changed its name or been known by any other name
within the last five (5) years. Borrower does not now use nor has it ever used
any trade or fictitious name in the conduct of its business.
5.12 Existing Debt. Borrower is not in default with respect to any
of its existing Debt or with respect to any material agreement to which Borrower
is a party which would have a material adverse effect on its ability to pay the
Loans.
5.13 Insolvency. Borrower is now and, after giving effect to the
transactions contemplated hereby, at all times will be, Solvent.
5.14 Subsidiaries. As of the Closing Date, Borrower has no
Subsidiaries other than those listed in Schedule 5.14.
5.15 Environmental Matters. To the best of Borrower's knowledge and
belief, Borrower is in compliance with all Environmental Regulations and with
all other federal, state and local laws and regulations relating to the
environment and pollution, including such laws and regulations regulating
hazardous, radioactive and toxic materials and underground petroleum products
storage tanks. No assessment, notice of (primary or secondary) liability or
notice of financial responsibility, and no notice of any action, claim,
investigation, proceeding, or inquiry to determine such liability or
responsibility, or the amount thereof, or to impose civil penalties has been
received by Borrower, and there are no facts, conditions or circumstances known
to Borrower which could result in any investigation or inquiry if all such
facts, conditions, and circumstances, if any, were fully disclosed to the
applicable governmental authority other than for which remediation will occur to
the extent required. Borrower has paid any environmental excise taxes due and
payable, including without limitation, those imposed pursuant to Sections 4611,
4661, or 4681 of the Internal Revenue Code of 1986, as amended from time to
time. Borrower has not obtained and is not required to obtain any permits,
licenses, or similar authorizations to construct, occupy, operate or use any
buildings, improvements, fixtures or equipment in connection with its business
by reason of any Environmental Regulations. No oil, toxic or hazardous
substances or solid wastes have been disposed of or released by Borrower in
connection with the operation of its business in violation of law and Borrower
will not dispose of or release oil, toxic or hazardous substances or solid
wastes at any time in its operation of its business in violation of law (the
terms "hazardous substance" and "release" shall have the meanings specified in
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), and the terms "solid waste" and "disposal,"
"dispose" or "disposed" shall have the meanings specified in the Resource
Conservation and Recovery Act of 1976, as amended ("RCRA"), except that if such
acts are amended to broaden the meanings thereof, the broader meaning shall
apply herein).
5.16 Ownership. All limited liability company interests in and to
the Borrower are owned by Guarantor. There are no outstanding warrants, options,
or rights to purchase any interest in Borrower, nor does any Person (other than
the Bank) have a Lien upon any of the limited liability company interests and to
of Borrower.
17
5.17 Labor Relations. Neither Borrower nor any of its Subsidiaries
is a party to any collective bargaining agreement, and there are no material
grievances, disputes or controversies with any union or any other organization
of Borrower's employees, or threats of strikes, work stoppages or any asserted
pending demands for collective bargaining by any union or organization.
5.18 Intentionally Omitted.
5.19 Partnerships. Except as shown in Schedule 5.19, as of the
Closing Date, Borrower is not a partner or joint venturer with any other Person
or a participant in any business enterprise other than its own for which it is
generally liable, nor does Borrower have any contingent liabilities of any
description other than as indicated in the financial statements heretofore
delivered to Bank.
5.20 Surety Obligations. As of the Closing Date, Borrower is not
obligated as guarantor, surety or indemnitor under any indemnity, guaranty,
surety or similar bond or other contract issued or entered into any agreement to
assure payment, performance or completion of performance of any undertaking or
obligation of any Person, except as shown on Schedule 5.20.
5.21 No Approval. No authorization or approval or other action by,
and no notice to or filing with, any federal, state, or local government body,
agency, or authority is required for the due execution, delivery, and
performance by Borrower of this Agreement, the Note(s), or the Loan Documents.
5.22 Racketeering. Borrower is not engaged in any activity that
might constitute a pattern of racketeering activity or in any other conduct that
might subject all or a material portion of Borrower's assets to forfeiture.
5.23 Patents, Trademarks, Copyrights and Licenses. Borrower owns or
possesses all the patents, trademarks, service marks, trade names, copyrights
and licenses necessary for the present and planned future conduct of its
business without any known conflict with the rights of others.
5.24 Representations True. No representation or warranty by the
Borrower contained herein or in any certificate or other document furnished by
the Borrower pursuant hereto contains any untrue statement of material fact or
omits to state a material fact necessary to make such representation or warranty
not misleading in light of the circumstances under which it was made.
ARTICLE 6
GENERAL COVENANTS
Borrower agrees and covenants that until the Obligations have been paid
in full and until the Bank has no further obligation to make advances under the
Revolving Loan, or to issue Letters of Credit under the LOC Loan, Borrower
shall:
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6.1 Insurance. Maintain insurance with insurance companies
reasonably satisfactory to Bank on such of its properties, in such amounts and
against such risks as is customarily maintained in similar businesses operating
in the same vicinity, and shall file with Bank upon request, from time to time,
a detailed list of the insurance then in effect, stating the names of the
insurance companies, the amounts and rates of the insurance, dates of expiration
thereof, and the properties and risks covered thereby, and, within 30 days after
notice in writing from Bank, shall obtain such additional insurance as Bank may
reasonably request. The Borrower shall furnish to the Bank insurance
certificates, in form and substance reasonably satisfactory to the Bank,
evidencing compliance by it with the terms of this Section and, upon the request
of the Bank at any time, the Borrower shall furnish the Bank with photostatic
copies of the policies required by the terms of this Section. The Borrower will
cause each insurer under each of the policies to agree (either by endorsement
upon such policy or by letter addressed to the Bank) to give the Bank at least
10 days, prior written notice of the cancellation of such policies in whole or
in part or the lapse of any coverage thereunder. Borrower agrees that it will
not take any action or fail to take any action which action or inaction would
result in the invalidation of any insurance policy required hereunder. At least
10 days prior to the date the premiums on each such policy or policies shall
become due and payable, the Borrower shall furnish to the Bank evidence of the
payment of such premiums. Borrower shall furnish to the Bank such evidence of
insurance as Bank may require.
6.2 Limited Liability Company Existence; Qualification. Maintain
its limited liability company existence and, in each jurisdiction in which the
character of the property owned by it or in which the transaction of its
business makes its qualification necessary, maintain good standing.
6.3 Taxes. During each fiscal year, accrue all current tax
liabilities of all kinds, all required withholding of income taxes of employees,
all required old age and unemployment contributions, all required payments to
employee benefit plans, and pay the same when they become due.
6.4 Compliance with Laws. Comply with all Applicable Laws,
including, without limitation, Environmental Regulations, and pay all taxes,
assessments, charges, claims for labor, supplies, rent, and other obligations in
the ordinary course of business, subject to Borrower's right to challenge such
obligations. Specifically, Borrower shall pay, or shall cause Guarantor to pay,
when due all taxes and assessments upon the Collateral, this Agreement, the
Notes, or any Loan Document, including, without limitation, any stamp taxes or
intangibles taxes imposed by virtue of the transactions outlined herein.
6.5 Financial Statements. Furnish to Bank for each fiscal quarter
and each fiscal year financial statements including a statement of financial
condition as of the end of such quarter or year, and statements of income,
statements of cash flows and statement of changes in shareholders' equity for
such quarter or year, setting forth in each case in comparative form the figures
for the previous fiscal quarter or year, all in accordance with GAAP
consistently applied and consistent with those applied in the preparation of the
financial statements delivered to the Bank in connection with the Loan
Commitment, and in the case of the annual statements, accompanied by an audit
report of independent certified public accountants of recognized
19
standing, selected by the Guarantor and satisfactory to the Bank, which audit
report shall be prepared in accordance with the standards established by the
American Institute of Certified Public Accountants. The quarterly financial
statements shall be furnished within sixty (60) days following the end of each
fiscal quarter of the Guarantor, and the annual statements shall be furnished
within one hundred twenty (120) days following the end of each fiscal year of
the Guarantor. Within sixty (60) days after the end of each of the quarters of
each fiscal year of the Guarantor, Guarantor shall furnish to Bank a certificate
of the president or the chief financial officer of the Guarantor, in the form of
Exhibit "G" hereto, (a) certifying that to the best of his knowledge no default
with respect to the Loan has occurred and is continuing, or if a default has
occurred and is continuing, a statement as to the nature thereof and the action
which is proposed to be taken with respect thereto, and (b) containing
computations demonstrating compliance with the financial covenants contained in
this Agreement.
6.6 Visits and Inspections. Permit persons designated by Bank to
inspect any and all of the property and corporate and financial books and
records of Borrower and to discuss its affairs with its officers and employees
at such reasonable times as Bank shall request and furnish Bank with such
miscellaneous information of Borrower as it may reasonably request.
6.7 Payments on Notes. Duly and punctually pay the principal and
interest on the Notes, in accordance with the terms of this Agreement and of the
Notes, and pay all other Debt of Borrower reflected on the financial statements
delivered to Bank and referred to in Sections 5.5 and 6.5 hereof and all other
Debt incurred after the date hereof in accordance with the terms of such Debt,
it being understood, however, that this Section shall not be deemed to permit
any Debt in violation of the provisions of Sections 7.1 and 7.2 hereof.
6.8 Conduct of Business. Conduct its business as now conducted and
do all things necessary to preserve, renew and keep in full force and effect its
rights, privileges and franchises necessary to continue its business as same
exists from time to time. The parties agree that Borrower shall have the right
to own, operate, build, develop and invest in any real estate related business
(whether directly or indirectly), including, but not limited to, ownership,
lease or financing of property or interests in entities.
6.9 Maintenance of Properties. Keep its properties in good repair,
working order and condition, reasonable wear and tear excepted, and from time to
time make all needed and proper repairs, renewals, replacements, additions, and
improvements thereto as determined to be necessary by Borrower in the ordinary
course of its business.
6.10 Additional Documents. Join the Bank in executing any security
agreements, assignments, consents, financing statements or other instruments, in
form satisfactory to the Bank, as the Bank may from time to time request in
connection with the Collateral and the other security for the Loan referred to
in Section 4.1 hereof.
6.11 Notice to Bank. Promptly notify the Bank of (i) any event
causing a material loss or depreciation in value of the Collateral and the
amount of such loss or depreciation, (ii) if Borrower becomes aware of the
occurrence of any Event of Default or of any fact, condition or event that, with
the giving of notice or passage of time, or both, could become an Event of
20
Default or of the failure of the Borrower to observe any of its undertakings
hereunder, or (iii) any material lawsuit involving Borrower.
6.12 Subordination of Debt. The term "Specified Loans" shall mean
(i) any loans described in Schedule 6.12 (including any renewals or extensions
thereof), and (ii) any future loans or letters of credit issued in connection
with the Authorized Business and any future real estate acquisition, development
or construction loans each of which is obtained from BankAtlantic, FSB in the
ordinary course of and pursuant to the reasonable requirements of the Borrower's
business and upon fair and reasonable terms no less favorable to the Borrower
than it would obtain in a comparable arm's-length transaction with an
institutional lender who is not an Affiliate of Borrower, all documents or
instruments executed in connection with any extension of credit to Borrower by
BankAtlantic, FSB. The Specified Loans shall not be subordinate to the Loan. Any
loan made by BankAtlantic, FSB to Borrower which is not a Specified Loan shall
be subordinated to the Loan by a subordination agreement reasonably satisfactory
in form and substance to the Bank, executed by Borrower and BankAtlantic, FSB,
subordinating in right of payment and claim all Debt owed by Borrower to
BankAtlantic, FSB and any future advances thereon to the full and final payment
of the Obligations.
Upon the written request of Borrower specifying the terms and
conditions of any proposed loan, the Bank shall provide written notice to
Borrower confirming that the loan in question being made from BankAtlantic, FSB
to the Borrower is, or is not, in Bank's opinion, required to subordinate to the
Loan and setting forth the basis for such opinion if Bank believes that such
loan is required to be subordinated to the Loan.
6.13 Collection of Accounts. Pursue collection of all amounts due
Borrower by others, including Affiliates of Borrower, as Borrower determines in
its reasonable business judgment.
6.14 Auditors; Insurance Representatives and Agents. Furnish the
Bank with a copy of each letter written to the Borrower by its independent
certified public accountant concerning internal controls and management review
immediately upon receipt of same and any comments made by the Borrower with
respect thereto.
6.15 Bank Accounts. Maintain its principal bank accounts with the
Bank or another bank approved by the Bank (recognizing that BankAtlantic, FSB,
Comerica Bank and Bank of America are approved by Bank).
6.16 Business Records. Keep, and cause each Subsidiary to keep,
adequate records and books of account with respect to its business activities in
which proper entries are made in accordance with GAAP reflecting all its
financial transactions.
6.17 Financial Covenants. Maintain at all times that this Agreement
is in effect the following:
(a) total Tangible Net Worth of not less than Thirty
Million Dollars ($30,000,000.00).
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(b) a ratio of total Debt to Tangible Net Worth of not
more than 3.00:1.00.
6.18 First Right to Finance: Borrower agrees it shall provide to
the Bank the first right to finance (on the same terms then applicable to
similar credit extensions by the Bank) any land or lot acquisition or
development or residential construction undertaken by the Borrower or any
Subsidiary of the Borrower during the term of the Loan (excluding any existing
financing commitments and loans or refinancing thereof). If Bank has not agreed
to provide financing (subject to the Bank's normal and customary terms and
conditions then applicable to similar credits) within ten (10) business days
after receiving a loan request and the related materials normally required in
the Bank's commitment underwriting process, Bank shall be deemed to have waived
its option to finance pursuant to this Section 6.18. Land acquisition and/or
development loans furnished by the Bank pursuant to this Section 6.18 will
accrue interest at a per annum rate equal to one half percent (.50%) above the
Prime Rate and will require the Borrower to pay a loan fee equal to one percent
(1.00%) of the loan amount for a loan term not to exceed thirty six (36) months.
Revolving construction loans furnished by the Bank pursuant to this Paragraph
will accrue interest at a per annum rate equal to one half percent (.50%) above
the Prime Rate and will require the Borrower to pay an annual loan fee equal to
one half percent (0.50%) of the maximum outstanding balance of the revolving
construction line of credit. With respect to any revolving construction loan for
completion of dwelling units that closes concurrently with a land acquisition
and/or development loan secured by the same property, the annual fee described
above will not be imposed until the earlier of either (a) the first loan advance
thereunder or (b) nine (9) months after closing.
6.19 Most Favorable Financial Covenants. Borrower agrees that it
shall inform Bank of any current financial covenants which it may have entered
into with any other lender, bank, or credit facility which may be more favorable
to such lender, bank, or credit facility, and shall agree to execute documents
or otherwise provide to Bank the same financial covenants or the benefits of
such financial covenants.
6.20 Filings. Deliver to Bank a copy of any filings with any
governmental body, agency or authority which regulates Borrower's business other
than routine filings to maintain the good standing of Borrower, filings
regarding zoning issues, or filings in the ordinary course of Borrower's
Authorized Business.
ARTICLE 7
NEGATIVE COVENANTS
Until the Obligations have been repaid and satisfied in full and until
the Bank has no further obligation to make advances under the Revolving Loan, or
to issue Letters of Credit under the LOC Loan, without the prior written consent
of Bank, the Borrower shall not:
7.1 INTENTIONALLY DELETED.
7.2 INTENTIONALLY DELETED
7.3 INTENTIONALLY DELETED
22
7.4 Affiliate Transactions. Purchase, acquire or lease property
from, or sell, transfer or lease any inventory, materials, goods, equipment,
assets, rights or property to, any Affiliate of Borrower, except in the ordinary
course of Borrower's business and under terms and conditions which would apply
if disinterested parties were involved.
7.5 INTENTIONALLY DELETED.
7.6 INTENTIONALLY DELETED.
7.7 INTENTIONALLY DELETED.
7.8 INTENTIONALLY DELETED.
7.9 INTENTIONALLY DELETED.
7.10 INTENTIONALLY DELETED.
7.11 INTENTIONALLY DELETED.
7.12 Adverse Transactions. Enter into any transaction, or permit
any Subsidiary to enter into any transaction, which materially and adversely
affects or may materially and adversely affect Borrower's ability to repay the
Obligations.
7.13 INTENTIONALLY DELETED.
7.14 INTENTIONALLY DELETED.
7.15 INTENTIONALLY DELETED.
7.16 Subordinated Debt. Make any payment (principal or interest)
with respect to Subordinated Debt, or with respect to any Debt that would be
Subordinated Debt but for the absence of a subordination agreement in effect
with respect thereto during any period an Event of Default remains in effect,
except that Borrower shall be entitled to make payments with respect to such
Debt during such time as no Event of Default exists hereunder.
ARTICLE 8
SECURITY INTEREST
8.1 Security Interest. As security for the payment of the Loans,
including any extensions or renewals or changes in form of the Loans, any
Overadvances, and all costs and expenses of collection thereof, including,
without limitation, attorneys' fees, Borrower will cause Guarantor to enter into
the Pledge Agreement of even date herewith, whereby Guarantor has assigned to
Bank and granted to Bank a security interest in and Lien upon the Collateral.
23
ARTICLE 9
EVENTS OF DEFAULT; CERTAIN REMEDIES
9.1 Events of Default. The occurrence of any one or more of the
following events shall constitute an Event of Default hereunder:
(a) Payment Default. If Borrower shall fail to make any
payment of any installment of principal or interest on the Notes within ten (10)
days as the same shall become due and payable, whether at stated maturity, upon
expiration of the Commitment Period, by declaration, upon acceleration, or
otherwise; or
(b) Fees and Expenses. If Borrower shall fail to pay when
due any expense, fee or charge provided for in this Agreement and such failure
shall continue for a period of ten (10) days; or
(c) Other Defaults. If Borrower shall fail or neglect to
perform, keep or observe, or shall default with respect to, any covenant,
agreement or provision contained in this Agreement (other than a covenant,
agreement or provision a default in the performance of which is dealt with
specifically elsewhere in this Section 9.1 or in Section 6.17); which default is
not cured within twenty (20) days after written notice from Bank to Borrower,
provided if same cannot reasonably be cured within twenty (20) days and Borrower
commences to cure within twenty (20) days and proceeds diligently to complete
the cure, such cure period shall be extended to the earlier of actual cure or
ninety (90) calendar days; or
(d) Representations False. If any warranty,
representation, or other statement made or furnished to Bank by or on behalf of
Borrower or Guarantor or in any of the Loan Documents proves to be false or
misleading in any material respect when made or furnished.
(e) Financial Difficulties. If the Borrower shall be
involved in financial difficulties as evidenced:
(i) by its admission in writing of its inability
to pay its debts generally as they become due or of its ceasing to be Solvent;
(ii) by its filing a petition in bankruptcy or
for reorganization or for the adoption of an arrangement under the U.S.
Bankruptcy Code (as now or in the future amended) or any similar law regarding
debtors rights and remedies or an admission seeking the relief therein provided;
(iii) by its making a general assignment for the
benefit of its creditors;
(iv) by its consenting to the appointment of a
receiver for all or a substantial part of its property;
(v) by its being adjudicated a bankrupt;
24
(vi) by the entry of a court order appointing a
receiver or trustee for all or a substantial part of its property without its
consent, which order shall not be vacated, set aside or stayed within ninety
(90) days from the date of entry; or
(vii) by the assumption of custody or
sequestration by a court of competent jurisdiction of all or substantially all
of its property, which custody or sequestration shall not be suspended or
terminated within 60 days from its inception; or
(f) Cancellation of Guaranty. If Guarantor shall be in
default under or breach the terms of its Amended and Restated Limited Guaranty
Agreement between the Bank and Guarantor of this Loan; or
(g) Other Documents and Other Obligations. If a default
or event of default or breach occurs under: (i) any Loan Document (other than
the breaches enumerated in other subsections of this Section 9.1), or under or
with respect to any of the Obligations; or (ii) under any other note, evidence
of indebtedness, loan agreement, security agreement, guaranty, pledge, mortgage,
assignment, security document or lease to which the Borrower is a party, and
such default or breach is not cured within 30 days after notice of such default
is given to Borrower or any longer applicable cure period; or
(h) Judgments. If a final judgment for the payment of
money in excess of $1,000,000 shall be rendered against the Borrower and the
same shall remain undischarged for a period of 30 days during which execution
shall not be effectively stayed, unless such judgment is fully covered by
collectible insurance; or
(i) Actions. If Borrower or Guarantor shall be criminally
indicted or convicted under any law that could lead to a forfeiture of any
property of the Borrower or such Guarantor; or
(j) Adverse Changes. There shall occur any material
adverse change in the financial condition or business prospects of Borrower in
violation of Section 6.17; or
(k) Business Disruption; Condemnation. There shall occur
a cessation of a substantial part of the business of Borrower for a period which
significantly affects Borrower's capacity to continue its business, on a
profitable basis; or Borrower shall suffer the loss or revocation of any license
or permit now held or hereafter acquired by Borrower which is necessary to the
continued or lawful operation of its business; or Borrower shall be enjoined,
restrained or in any way prevented by court, governmental or administrative
order from conducting all or any material part of its business affairs; or
(l) INTENTIONALLY DELETED.
(m) Change in Management. If Xxxxxxx Xxxxxx shall not,
for any reason, be actively serving as an executive officer of the Borrower or
shall for any reason devote less than a sufficient (in the reasonable opinion of
the Bank) amount of his business time to the business and affairs of the
Borrower and its subsidiaries and a suitable replacement (based on business
experience and background) acceptable to the Bank, in its reasonable discretion,
has not been
25
retained within 30 days thereafter, the Loan shall be deemed in default. Xxxx X.
Xxxx and Xxxx Xxxxx are each preapproved as a substitute executive officer and
manager for Xxxxxx Xxxxxx provided that upon such substitution said individual
shall devote a sufficient (in the reasonable opinion of the Bank) amount of his
business time to the business and affairs of the Borrower and its subsidiaries;
or
(n) Subordination Agreements. If a breach or default
shall occur with respect to any required subordination agreement executed by any
creditor of Borrower in favor of Bank (including any Affiliate); or
(o) Second Loan Default. If a breach or default shall
occur with respect to any loan document (the "Second Loan Document") executed in
connection the Second Loan not cured within the applicable cure period, provided
any cure of such event of default shall cure the default in this Section; or
(p) Letter of Credit Drawn Upon. If any Letter of Credit
is drawn upon for any reason whatsoever and the LOC Note is not repaid within 15
days of written demand.
The Borrower agrees that default under any Loan Document or Second Loan
Document not cured within the applicable cure period shall constitute default
with respect to all Loan Documents and all Second Loan Documents and vice versa,
and a cure of such event of default of the Loan Documents or Second Loan
Documents shall cure such default under the Loan Documents and Second Loan
Documents and vice versa.
9.2 Remedies. Upon or at any time after the occurrence of any one
or more of the foregoing Events of Default until cured and the cure accepted by
Bank, Bank or the holder of the Notes may at its option (i) proceed to protect
and enforce its rights by suit in equity, action at law and/or the appropriate
proceeding either for specific performance of any covenant or condition
contained in the Notes or in any Loan Document, (ii) terminate the Commitment
Period and cease disbursing advances under the Revolving Note, (iii) refuse to
issue any further Letters of Credit; and/or declare the unpaid balance of the
Loans and Notes together with all accrued interest to be forthwith due and
payable, and thereupon such balance shall become so due and payable without
further presentation, protest or further demand or notice of any kind, all of
which are hereby expressly waived.
The Borrower shall pay the Bank on demand any and all expenses,
including legal expenses and reasonable attorneys' fees, incurred or paid by the
Bank in protecting or enforcing the Loans and all other Obligations to and other
rights of the Bank hereunder to the extent Bank is the prevailing party.
The Bank shall not be liable for failure to enforce any contract rights
or for any action or omission on the part of the Bank, its officers, agents and
employees, except willful misconduct or gross negligence. No remedy herein
conferred upon, or reserved to, the Bank is intended to be exclusive of any
other remedy or remedies, including those of any note or other evidence of Debt
held by the Bank, and each and every remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing in
law or in equity. Exercise or
26
omission to exercise any right of the Bank shall not affect any subsequent right
of the Bank to exercise the same.
Borrower waives any bond or security that might be required by any
court prior to allowing Bank to exercise any of Bank's remedies.
The Borrower agrees that the Bank may apply the net proceeds received
from the Collateral among the Loans and the Obligations toward satisfaction of
the same in its sole discretion. Any such proceeds remaining after satisfaction
in full of the Loans, the Obligations, and the other obligations and liabilities
of the Borrower to the Bank shall be distributed as required by Applicable Laws.
9.3 Right of Set-Off. Upon and after the occurrence of any Event
of Default until cured, Bank may, and is hereby authorized by Borrower, at any
time and from time to time, to the fullest extent permitted by Applicable Laws,
and without advance notice to Borrower (any such notice being expressly waived
by Borrower), set-off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and any other indebtedness at
any time owing by Bank to, or for the credit or the account of, Borrower against
any or all of the Loans and Obligations and other liabilities and obligations of
Borrower now or hereafter existing whether or not such obligations have matured
and irrespective of whether Bank has exercised any other rights that it has or
may have with respect to such Loans and Obligations and other liabilities and
obligations, including, without limitation, any acceleration rights. The
aforesaid right of set-off may be exercised by Bank against Borrower or against
any trustee in bankruptcy, debtor in possession, assignee for the benefit of the
creditors, receiver, or execution, judgment or attachment creditor of Borrower,
notwithstanding the fact that such right of set-off shall not have been
exercised by Bank prior to the making, filing or issuance, or service upon Bank
of, or of notice of, any such petition; assignment for the benefit of creditors;
appointment or application for the appointment of a receiver; or issuance of
execution, subpoena, order or warrant. Bank agrees to notify Borrower after any
such set-off and application, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
Bank under this Section are in addition to the other rights and remedies
(including, without limitation, other rights of setoff) which Bank may have.
ARTICLE 10
INDEMNIFICATION
10.1 Indemnification. Borrower agrees to defend, indemnify and hold
harmless the Bank, its directors, officers, employees, accountants, attorneys,
and agents (the "Indemnitees"), from and against any and all claims, demands,
judgments, damages, actions, causes of action, injuries, orders, penalties,
costs and expenses (including attorneys' fees and costs of court) of any kind
whatsoever arising out of or relating to any breach or default by Borrower or
under this Agreement or any Loan Document or the failure of Borrower to observe,
perform or discharge Borrower's duties hereunder or thereunder. Without limiting
the generality of the foregoing, Borrower's obligation to indemnify Bank shall
include indemnity from any and all claims, demands, judgments, damages, actions,
causes of action, injuries, orders, penalties, costs and expenses arising out of
or in connection with the activities of the Borrower, its predecessors in
27
interest, third parties who have trespassed on Borrower's property, or parties
in a contractual relationship with Borrower, whether or not occasioned wholly or
in part by any condition, accident or event caused by an act or omission of the
Indemnitees, which: (a) arise out of the actual, alleged or threatened
discharge, dispersal, release, storage, treatment, generation, disposal, or
escape of radioactive materials, radioactivity, pollutants or other toxic or
hazardous substances, including any solid, liquid, gaseous, or thermal irritant
or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals,
and waste (including materials to be recycled, reconditioned or reclaimed); or
(b) actually or allegedly arise out of the use, specification, or inclusion of
any product, material, or process containing chemicals or radioactive material,
the failure to detect the existence or proportion of chemicals or radioactive
material in the soil, air, surface water or groundwater, or the performance or
failure to perform the abatement of any pollution source or the replacement or
removal of any soil, water, surface water, or groundwater containing chemicals
or radioactive material; or (c) arises out of or relates to breach by Borrower
of any of the provisions of Section 5.15 hereof relating to Environmental
Regulations. In addition, Borrower will indemnify and hold Bank harmless from
and against any liability, claim, cost or expense incurred by Bank or imposed
against Bank for any stamp tax, intangible tax, or other tax, fee or charge
imposed by any governmental entity arising out of or relating to the Notes or
this Agreement or the transactions anticipated herein.
ARTICLE 11
COSTS AND EXPENSES; MISCELLANEOUS
11.1 Costs of Preparation; Brokers Fees. Borrower shall bear all
expenses of the Bank in connection with the Loans and with the investigation,
review and approval of this transaction, the preparation of the Agreement and
the Loan Documents, and the issuance and delivery of the Notes to Bank and also
in connection with any amendment or modification thereto, and the administration
thereof, including, without limitation, (i) all reasonable legal fees, expenses
and disbursements and other actual third-party expense reimbursements incurred
or sustained by Bank in connection with this transaction, (ii) all reasonable
travel, appraisal, audit, search and filing fees incurred or sustained by Bank
in connection with this transaction (other than administrative expenses); (iii)
all recording and filing fees, intangibles taxes, documentary and revenue
stamps, other taxes or other expenses and charges payable in connection with
this Agreement, the Notes or any Loan Document and (iv) all reasonable costs and
expenses (including fees and expenses of outside consultants) related to the
transactions contemplated hereby and thereby and/or periodic audits and
appraisals performed by Bank. The Borrower agrees to indemnify and save Bank
harmless against all broker's and finder's fees, if any.
11.2 Other Costs and Expenses. If, at any time or times hereafter,
whether before or after the occurrence of an Event of Default, the Bank employs
counsel to advise or provide other representation with respect to this Agreement
or any Loan Document, or to collect the balance of the Loans, or to take any
action in or with respect to any suit or proceeding relating to this Agreement
or any of the Loan Documents, or to protect, collect, or liquidate the
Collateral or to attempt to enforce any security interest or Lien granted to the
Bank by Borrower; then in any such events, all of the reasonable attorneys' fees
arising from such services, and any expenses, costs and charges relating thereto
to the extent the Bank is the prevailing party, shall constitute additional
obligations of Borrower payable on demand of the Bank.
28
11.3 Legal Counsel. Borrower acknowledges and agrees that legal
counsel to Bank does not represent Borrower as Borrower's attorney, that
Borrower has retained (or has had an opportunity to retain) counsel of its own
choice and has not and will not rely upon any advice from Bank's counsel. In no
event shall Borrower's reimbursement of expenses pursuant to this Agreement
(even if effected by payment directly by Borrower to Bank's counsel) be deemed
to establish any attorney-client relationship between Borrower and Bank's
counsel.
11.4 No Waiver. No waiver of any Event of Default hereunder, and no
waiver of any default or Event of Default under any other Loan Document shall
extend to or shall affect any subsequent or other then existing default or shall
impair any rights, remedies or powers of Bank. No delay or omission of Bank or
any subsequent holder of the Notes to exercise any right, remedy, power or
privilege hereunder after the occurrence of such default or Event of Default
shall be construed as a waiver of any such default, or acquiescence therein.
11.5 Headings. Except for the definitions set forth in Section 1,
the headings of the articles, sections, paragraphs and subdivisions of this
Agreement are for convenience of reference only, are not to be considered a part
hereof, and shall not limit or otherwise affect any of the terms hereof.
11.6 Marshalling of Assets; Payments Set Aside. Bank shall be under
no obligation to xxxxxxxx any assets or securities in favor of Borrower or any
Guarantor or any other Person or against or in payment of any or all of the
Obligations. To the extent that any sum credited against the Obligations is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then to the
extent of such recovery, the Obligations or part thereof originally intended to
be satisfied, and all Liens, rights and remedies therefor, shall be revived and
continued in full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred.
11.7 Survival of Covenants. All covenants, agreements,
representations and warranties made herein and in certificates or reports
delivered pursuant hereto shall be deemed to have been material and relied on by
Bank, notwithstanding any investigation made by or on behalf of Bank, and shall
survive the execution and delivery to Bank of any Notes or Loan Document.
11.8 Addresses. Any notice or demand which by any provision of this
Agreement is required or provided to be given shall be deemed to have been
sufficiently given or served for all purposes by (i) being delivered in person
to the party to whom the notice or demand is directed or (ii) by being sent as
first class mail, postage prepaid, in either event to the following address: If
to Borrower, 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000; or if any
other address shall at any time be designated by Borrower in writing to the
holders of record of the Note(s) at the time of such designation to such other
address; and if to Bank, 200 Ohio Savings Plaza, 0000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxx 00000, Attention: Corporate Lending Department, Xx. Xxxxx Xxxx;
or if any other address shall at any time be designated in writing to Borrower,
to such other address. Notwithstanding the foregoing, no notice shall be
effective as to Bank until actually received by Bank. Any written notice that is
not sent in conformity with the provisions hereof
29
shall nevertheless be effective on the date that such notice is actually
received by the noticed party.
11.9 Venue and Jurisdiction. The parties agree that any legal
action brought by the Bank to collect the Loans or any Obligation or to assert
any claim by or against Borrower under any Loan Document, or any part thereof,
shall be brought in any court in the State of Florida having subject matter
jurisdiction, waives its right to object to any such action on grounds it is
brought in the improper venue, and irrevocably consents that any legal action or
proceeding against it under, arising out of, or in any manner relating to the
Loans, the Obligations, or any Loan Document shall be brought in the Circuit
Court of Palm Beach County, Florida, or in the U.S. District Court for the
Southern District of Florida. Borrower, by the execution of this Agreement,
expressly and irrevocably assents and submits to the personal jurisdiction of
any such court in any such action or proceeding. Borrower consents to the
service of process relating to any such action or proceeding by mail to the
address set forth in this Agreement.
11.10 Continuing Obligation; Benefits. This Agreement, and each and
every provision hereof, is a continuing obligation and shall (i) be binding upon
the Borrower and the Bank, their successors and assigns, and (ii) inure to the
benefit of and be enforceable by the Borrower and Bank and their successors and
assigns; provided, that the Borrower may not assign all or any part of this
Agreement without the prior written consent of Bank, which consent may be
granted or withheld in the sole discretion of Bank.
11.11 Controlling Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida; provided,
however, that if any of the Collateral shall be located in any jurisdiction
other than Florida, the laws of such jurisdiction shall govern the method,
manner and procedure for foreclosure of Bank's lien upon such Collateral and the
enforcement of Bank's other remedies in respect of such Collateral to the extent
that the laws of such jurisdiction are different from or inconsistent with the
laws of Florida.
11.12 Standard of Review. Except as otherwise provided herein, any
document, writing or instrument required or permitted to be delivered to Bank
under this Agreement shall be deemed satisfactory only if approved by Bank in
the exercise of its reasonable discretion.
11.13 Participation. Borrower acknowledges that Bank may, at its
option, sell participation interests in the Loans to participating banks,
subject to complying with FIRPTA. The amounts of any such participation shall be
determined solely by the Bank. Borrower agrees with each present and future
participant in the Loans, the names and addresses of which will be furnished to
Borrower, that if an Event of Default should occur, each present and future
participant shall have all of the rights and remedies of Bank with respect to
any deposit due from any participant to Borrower. The execution by a participant
of a participation agreement with Bank, and the execution by Borrower of this
Agreement, regardless of the order of execution, shall evidence an agreement
between Borrower and said participant in accordance with the terms of this
Section. If Bank participates the Loan, Borrower shall only be required to make
payment at one location and deal with a single service at any given time.
30
11.14 Miscellaneous. This Agreement and the instruments and
agreements referred to herein or called for hereby supersede and incorporate all
representations, promises, and statements, oral or written, made by the Bank in
connection with the Loans or in connection with the Original Loan Agreement.
This Agreement may not be varied, altered, or amended except by a written
instrument executed by an authorized officer of the Bank. This Agreement may be
executed in any number of counterparts, each of which, when executed and
delivered, shall be an original, but such counterparts shall together constitute
one and the same instrument. Any provision in this Agreement which may be
unenforceable or invalid under any law shall be ineffective to the extent of
such unenforceability or invalidity without affecting the enforceability or
validity of any other provisions hereof.
11.15 Joint and Several Liability. All obligations of each Person
named as Borrower shall be joint and several obligations of all such Persons.
Each representation, warranty and covenant shall be deemed true and/or complied
with, as the case may be, only (i) if true or complied with with respect to each
separate entity constituting a Borrower taken on its own without reference to
the other Borrower entities, and (ii) if true or complied with with respect to
all entities constituting Borrower taken as a whole.
11.16 General Waivers. To the fullest extent permitted by Applicable
Law, Borrower waives, except as provided in the Loan Documents (i) presentment,
demand and protest and notice of presentment, protest, default, nonpayment,
maturity, release, compromise, settlement, extension or renewal of any or all
commercial paper, accounts, contract rights, documents, instruments, chattel
paper and guaranties at any time held by Bank on which Borrower may in any way
be liable; (ii) any bond or security which might be required by any court prior
to allowing Bank to exercise any of Bank's remedies, (iii) the benefit of all
valuation, appraisement and exemption laws; (iv) any right Borrower may have
upon payment in full of the Obligations to require Bank to terminate its
security interest in the Collateral until the execution by Borrower of an
agreement indemnifying Bank from any loss or damage Bank may incur as the result
of dishonored checks or other items of payment received by Bank from Borrower
and applied to the Obligations; and (v) notice of Bank's acceptance hereof or of
any Loan Document.
11.17 Maximum Interest. Regardless of any provision contained in
this Agreement or any of the Loan Documents, in no event shall the aggregate of
all amounts that are contracted for, charged or collected pursuant to the terms
of this Agreement, the Notes or any of the Loan Documents, and that are deemed
interest under Applicable Law, exceed the Maximum Rate. No provision of this
Agreement or in any of the Loan Documents or the exercise by Bank of any right
hereunder or under any Loan Document or the prepayment by Borrower of any of the
Obligations or the occurrence of any contingency whatsoever, shall entitle Bank
to charge or receive, or to require Borrower to pay, interest or any amounts
deemed interest by Applicable Law (such amounts being referred to herein
collectively as "Interest") in excess of the Maximum Rate, and all provisions
hereof or in any Loan Document which may purport to require Borrower to pay
Interest exceeding the Maximum Rate shall be without binding force or effect to
the extent only of the excess of Interest over such Maximum Rate. Any Interest
charged or received in excess of the Maximum Rate ("Excess"), shall be
conclusively presumed to be the result of an accident and bona fide error, and
shall, to the extent received by Bank, at the option of Bank, either be applied
to reduce the principal amount of the Obligations or returned to Borrower. The
31
right to accelerate the maturity of any of the Obligations does not include the
right to accelerate unaccrued interest, and no such interest will be collected
by Bank. All monies paid to Bank hereunder or under any of the Loan Documents
shall be subject to any rebate of unearned interest as and to the extent
required by Applicable Law. By the execution of this Agreement, Borrower
covenants that (i) the credit or return of any Excess shall constitute the
acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or
pursue any other remedy, legal or equitable, against Bank, based in whole or in
part upon contracting for, charging or receiving any Interest in excess of the
Maximum Rate. For the purpose of determining whether or not any Excess has been
contracted for, charged or received by Bank, all interest at any time contracted
for, charged or received from Borrower in connection with this Agreement shall,
to the extent permitted by Applicable Law, be amortized, prorated, allocated and
spread in equal parts throughout the full term of the Obligations. Borrower and
Bank shall, to the maximum extent permitted under Applicable Law (i)
characterize any non-principal payment as an expense, fee or premium rather than
as Interest and (ii) exclude voluntary prepayments and the effects thereof. The
provisions of this Section shall be deemed to be incorporated into the Notes and
each Loan Document (whether or not any provision of this Section is referred to
therein).
11.18 Waiver of Right to Trial by Jury. Borrower and Bank hereby
waive any right to trial by jury on any claim, counterclaim, setoff, demand,
action or cause of action (a) arising out of or in any way pertaining or
relating to this Agreement, the Notes, the Loan Documents, or any other
instrument, document or agreement executed or delivered in connection with this
Agreement or (b) in any way connected with or pertaining or related to or
incidental to any dealings of the parties hereto with respect to this Agreement,
the Notes, the Loan Documents, or any other instrument, document or agreement
executed or delivered in connection herewith or in connection with the
transactions related thereto or contemplated thereby or the exercise of either
party's rights and remedies thereunder, in all of the foregoing cases whether
now existing or hereafter arising, and whether sounding in contract, tort or
otherwise. Borrower and Bank agree that either or both of them may file a copy
of this paragraph with any court as written evidence of the knowing, voluntary
and bargained agreement between the parties irrevocably to waive trial by jury,
and that any dispute or controversy whatsoever between them shall instead be
tried in a court of competent jurisdiction by a judge sitting without a jury.
IN WITNESS WHEREOF, each of the Borrower and the Bank has caused this
instrument to be executed by its duly authorized officer and the Borrower has
caused its seal to be affixed as of the date first above written.
Attest: BORROWER:
XXXXXX AND SONS, LLC,
a Florida limited liability company
By:
--------------------------------
Name:
-------------------------------- ------------------------------
Its:
-------------------------------
[SEAL]
32
GUARANTOR:
XXXXXX COMPANIES, LLC, a Florida limited
liability company
By:
-------------------------------- --------------------------------
Name: Xxxx X. Xxxx
Its: President
[SEAL]
BANK:
OHIO SAVINGS BANK
By:
--------------------------------
Its:
-------------------------------
33
SCHEDULE 3.14
REMAINING ITEMS
None.
SCHEDULE 5.14
SUBSIDIARIES
SCHEDULE 5.19
PARTNERSHIPS
SCHEDULE 6.12
NON-SUBORDINATED LOANS
EXHIBIT "G"
COMPLIANCE CERTIFICATE
Ohio Savings Bank
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Corporate Lending Department
Xx. Xxxxx Xxxx
Date of Report: _______________, 200_
For Month or Quarter Ended: _______________, 200_
The undersigned officer(s) of Xxxxxx and Sons, LLC, a Florida limited liability
company hereby certify to you as follows:
(1) We have reviewed the provisions of the Loan Agreement between
Borrower and you, dated as of March _____, 2002 (the "Loan Agreement"), and we
have caused to be made under our supervision a review of the activities of
Borrower during the above referenced period with a view toward determining
whether Borrower has kept, observed, performed, and fulfilled all of its
obligations under the Loan Agreement. Capitalized terms used herein but not
otherwise defined herein shall have the meanings set forth in the Loan
Agreement. To the best of our knowledge, Borrower has kept, observed, performed,
and fulfilled each and every undertaking contained in the Loan Agreement and is
not at this time in default in the observance or performance of any of the terms
or conditions of the Loan Agreement, and no Event of Default has occurred and is
continuing, and no event has occurred and is continuing that, with the giving of
notice or the passage of time or both, would be an Event of Default, except as
follows:________________________________________________________________________
________________________________________________________________________________
__________________________________________________________. Without limiting the
generality of the foregoing, Borrower is Solvent as of the date hereof.
(2) We further certify to you that no material adverse change has
occurred in either the financial condition or the business of Borrower since the
date of the Loan Agreement and that all representations and warranties set forth
within the Loan Agreement are true as of the date hereof, except as follows:
(3) During the period noted above, Borrower has not changed its
name, its place of business, principal executive office, or has been surviving
corporation in a merger, nor has it changed the places where the Collateral is
located, except as follows: __________.
Executed this _____________ day of _________, 2002.
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Print Name:
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Print Name:
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ON BEHALF OF XXXXXX AND SONS, LLC,
a Florida limited liability company
