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CONSTRUCTION LOAN AGREEMENT
Borrower: Xxxxxxx and Xxxxxx, Inc. Lender: First-Xxxx National Bank
(TIN: 00-0000000) Lexington Branch
00 Xxxxxx Xxxx 00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Principal Amount: $750,000.00 Date of Note: December 2, 1996
THIS CONSTRUCTION LOAN AGREEMENT between Xxxxxxx and Xxxxxx, Inc. ("Borrower")
and First-Xxxx National Bank ("Lender") is made and executed en the following
terms and conditions. Borrower has applied to Lender for loans In the total
principal amount of U.S. $750,000.00 in order to construct the Improvements on
the Real Property described below. Lender is willing to lend the loan amount to
Borrower solely under the terms and conditions specified in this Agreement and
in the Related Documents, to each of which Borrower agrees. Borrower understands
and agrees that: (a) in granting, renewing, or extending any Loan, Lender is
relying upon Borrower's representations, warranties, and agreements as set forth
In this Agreement, and (b) all such Loans shall be and remain subject to the
terms and conditions of this Agreement.
TERM. This Agreement shall be effective as of December 2, 1996 and shall
continue thereafter until all Indebtedness has been paid in full and all other
obligations of Borrower hereunder have been performed in full and the parties
terminate this Agreement in writing.
DEFINITIONS. The following words shall have the following meanings when used in
this Agreement. Terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code. All references
to dollar amounts shall mean amounts in lawful money of the United States of
America.
Agreement. The word "Agreement" means this Construction Loan Agreement, as this
Construction Loan Agreement may be amended or modified from time to time,
together with all exhibits and schedules attached to this Construction Loan
Agreement from time to time.
Architecture Contract. The words "Architecture Contract" mean the architect's
contract relating to the Project, if any.
Borrower. The word "Borrower" means each and every person or entity signing the
Note, including without limitation Xxxxxxx and Xxxxxx, Inc.
Collateral. The word "Collateral" means and includes without limitation all
property and assets granted as collateral security for a Loan, whether real or
personal property, whether granted directly or indirectly, whether granted now
or in the future, and whether granted in the form of a security interest,
mortgage, deed of trust, assignment, pledge, chattel mortgage, chattel trust,
factor's lien, equipment trust, conditional sale, trust receipt, lien, charge,
lien or title retention contract, lease or consignment intended as a security
device, or any other security or lien interest
Exhibit 10(d), Page 1 of 14
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whatsoever, whether created by law, contract, or otherwise.
Commencement Date. The words "Commencement Date" mean the date Borrower begins
work on the Project.
Completion Date. The words "Completion Date" mean such date as Lender shall have
established as the date by which Borrower is to have completed the Project as
required in this Agreement.
Construction Contract. The words "Construction Contract" mean and include the
contract between Borrower and the general contractor for the Project, if any,
(General Contractor), and any subcontracts with subcontractors, material men,
laborers, or any other person or entity for performance of work on the Project
or the delivery of materials to the Project.
Event of Default. The words "Event of Default" mean and include without
limitation any of the Events of Default set forth below In the section titled
"Events of Default."
Grantor. The word "Grantor" means and includes without limitation each and all
of the persons or entities granting a Security interest in any Collateral for
the Indebtedness, including without limitation all Borrowers granting such a
Security Interest.
Guarantor. The word "Guarantor" means and includes without limitation all
guarantors, sureties, and accommodation parties.
Improvements. The word "Improvements" means and includes without limitation all
existing and future buildings, structures, facilities, fixtures, additions, and
similar construction on the Property.
Indebtedness. The word "Indebtedness" means and includes without limitation all
Loans, together with all other obligations, debts and liabilities of Borrower to
Lender, or any one or more of them, as well as all claims by Lender against
Borrower, or any one or more of them; whether now or hereafter existing,
voluntary or involuntary, due or not due, absolute or contingent, liquidated or
unliquidated; whether Borrower may be liable Individually or jointly with
others; whether Borrower may be obligated as a guarantor, surety, or otherwise;
whether recovery upon such Indebtedness may be or hereafter may become barred by
any statute of limitations; and whether such Indebtedness may be or hereafter
may become otherwise unenforceable.
Lender. The word "Lender" means First-Xxxx National Bank, its successors and
assigns.
Loan. The word "Loan" means the loan made to Borrower under this Agreement and
the Related Documents as described below.
Loan Fund. The words "Loan Fund" mean the undisbursed proceeds of the Loan under
this Agreement together with any equity funds or other deposits required from
Borrower under this Agreement.
Exhibit 10(d), Page 2 of 14
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Note. The word "Note" means the promissory note or credit agreement dated
December 2, 1996, in the original principal amount of $750,000.00 from Borrower
to Lender, together with all renewals of, extensions of, modifications of,
refinancings of, consolidations of, and substitutions for the promissory note or
agreement.
Plans and Specifications. The words "Plans and Specifications" mean the plans
and specifications for the Project which have been submitted to and initialed by
Lender, together with such changes and additions as may be approved by Lender in
writing.
Project. The word "Project" means the construction and completion of all
Improvements contemplated by this Agreement, Including without limitation the
erection of the building or structure, installation of equipment and fixtures,
landscaping, and all other work necessary to make the Property usable and
complete for the intended purposes.
Project Documents. The words "Project Documents" mean the Plans and
Specifications, all studies, data and drawings relating to the Project, whether
prepared by or for Borrower, the Construction Contract, the Architecture
Contract, and all other contracts and agreements relating to the Project or the
construction of the Improvements.
Property. The word "Property" means the Real Property together with all
Improvements, all equipment, fixtures, and other articles of personal property
now or subsequently attached or affixed to the real property, together with all
accessions, parts, and additions to, all replacements of, and all substitutions
for any of such property, and all proceeds (including insurance proceeds and
refunds of premiums) from any sale or other disposition of such property.
Real Property. The words "Real Property" mean the real property located in
Richland County, State of Ohio, and legally described as:
See Attached Exhibit A.
The Real Property or its address is commonly known as Xxxxxxxx xx Xxxxxxxxx,
Xxxxxxxxx, XX 00000.
Related Documents. The words "Related Documents" mean and include without
limitation all promissory notes, credit agreements, loan agreements,
environmental agreements, guaranties, security agreements, mortgages, deeds of
trust, and all other instruments, agreements and documents, whether now or
hereafter existing, executed in connection with the Indebtedness.
Security Agreement. The words "Security Agreement" mean and include without
limitation any agreements, promises, covenants, arrangements, understandings or
other agreements, whether created by law, contract, or otherwise, evidencing,
governing, representing, or creating a Security Interest.
Security Interest. The words "Security Interest" mean and include without
limitation any type of
Exhibit 10(d), Page 3 of 14
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collateral security, whether in the form of a lien, charge, mortgage, deed of
trust, assignment, pledge, chattel mortgage, chattel trust, factor's lien,
equipment trust, conditional sale, trust receipt, lien or title retention
contract, lease or consignment intended as a security device, or any other
security or lien Interest whatsoever, whether created by law, contract, or
otherwise.
Value. The word "Value" means such amount or worth as defined and determined by
Lender in its sole discretion unless agreed to the contrary by Lender In
writing.
LOAN. The Loan shall be in an amount not to exceed the principal sum of U.S.
$750,000.00 and shall bear interest on so much of the principal sum as shall be
advanced pursuant to the terms of this Agreement and the Related Documents. The
Loan shall bear interest on each Advance from the date of the Advance in
accordance with the terms of the Note. Borrower shall use the Loan Funds solely
for the payment of (a) the costs of constructing the Improvements and equipping
the Project in accordance with the Construction Contract; (b) other costs and
expenses incurred or to be incurred in connection with the construction of the
Improvements as Lender in its sole discretion shall approve; and (c) if
permitted by Lender, interest due under the Note, including all expenses and all
loan and commitment fees described in this Agreement. The Loan amount shall be
subject at all times to all maximum limits and conditions set forth in this
Agreement or in any of the Related Documents, including without limitation, any
limits relating to loan to value ratios and acquisition and Project costs.
FEES AND EXPENSES. Whether or not the Project shall be consummated, Borrower
shall assume and pay upon demand all out-of-pocket expenses incurred by Lender
in connection with the preparation of loan documents and the making of the Loan,
including without limitation the following: (a) all closing costs, fees, and
disbursements, including without limitation the loan fees described as follows:
3,750 + out of pocket; (b) all expenses of Lender's legal counsel; and (c) all
title examination fees, title insurance premiums, appraisal fees, survey costs,
required fees, and filing and recording fees.
NO CONSTRUCTION PRIOR TO RECORDING OF SECURITY DOCUMENT. Borrower will not
permit any work or materials to be furnished in connection with the Project
until (a) Borrower has signed the Related Documents; (b) Lender's mortgage or
deed of trust and other Security Interests in the Property have been duly
recorded and perfected; and (c) Lender has been provided evidence, satisfactory
to Lender, that Borrower has obtained all insurance required under this
Agreement or any Related Agreement and that Lender's liens on the Property and
Improvements are valid perfected first liens, subject only to such exceptions,
if any, acceptable to Lender.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as
of the date of this Agreement, as of the date of each disbursement of Loan
proceeds, as of the date of any renewal, extension or modification of any Loan,
and at all times any Indebtedness exists:
Authorization. The execution, delivery, and performance of this Agreement by
Borrower, to the extent to be executed, delivered or performed by Borrower, have
been duly authorized by all
Exhibit 10(d), Page 4 of 14
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necessary action by Borrower; do not require the consent or approval of any
other person, regulatory authority or governmental body; and do not conflict
with, result in a violation of, or constitute a default under (a) any provision
of its articles of incorporation or organization, or bylaws or code of
regulations, or any agreement or other instrument binding upon Borrower or (b)
any law, governmental regulation, court decree, or order applicable to Borrower.
Financial information. Each financial statement of Borrower supplied to Lender
truly and completely disclosed Borrower's financial condition as of the date of
the statement, and there has been no material adverse change in Borrower's
financial condition subsequent to the date of the most recent financial
statement supplied to Lender. Borrower has no material contingent obligations
except as disclosed in such financial statements.
Title to Property. Borrower has, or on the date of first disbursement of Loan
proceeds will have, good and marketable title to the Property free and clear of
all defects, liens, and encumbrances, excepting only liens for taxes,
assessments, or governmental charges or levies not yet delinquent or payable
without penalty or interest, and such liens and encumbrances as may be approved
in writing by the Lender.
Hazardous Substances. Borrower represents and warrants that, except as disclosed
to Lender in writing, no property of Borrower ever has been, or ever will be so
long as this Agreement remains in effect, used for the generation, manufacture,
storage, treatment, disposal, release or threatened release of any hazardous
waste or substance, as those terms are defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended, 42
U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and
Reauthorization Act ("XXXX"), applicable state or Federal laws, or regulations
adopted pursuant to any of the foregoing. The representations and warranties
contained herein are based on Borrower's due diligence in investigating the
properties for hazardous waste and hazardous substances. Borrower hereby (a)
releases and waives any future claims against Lender for indemnity or
contribution in the event Borrower becomes liable for cleanup or other costs
under any such laws, and (b) agrees to indemnify and hold harmless Lender
against any and all claims and losses resulting from a breach of this provision
of this Agreement. This obligation to indemnify shall survive the payment of the
Indebtedness and the satisfaction of this Agreement.
Project Costs. The Project costs are true and accurate estimates of the costs
necessary to complete the Improvements In a good and workmanlike manner
according to the Plans and Specifications presented by Borrower to Lender, and
Borrower shall take all steps necessary to prevent the actual cost of the
Improvements from exceeding the Project costs.
CONDITIONS PRECEDENT TO EACH ADVANCE. Lender's obligation to make the initial
Advance and each subsequent Advance under this Agreement shall be subject to the
fulfillment to Lender's satisfaction of all of the conditions set forth in this
Agreement.
Approval of Contractors, Subcontractors, and Materialmen. Lender shall have
approved a list of all contractors employed in connection with the construction
of the Improvements, showing the name, address, and telephone number of each
contractor, a general description of the nature of
Exhibit 10(d), Page 5 of 14
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the work to be done, the labor and materials to be supplied, the names of
materialmen, if known, and the approximate dollar value of the labor, work, or
materials with respect to each contractor or materialman. Lender shall have the
right to communicate with any person to verify the facts disclosed by the list
or by any application for any Advance, or for any other purpose.
Plans, Specifications, and Permits. Lender shall have received and accepted a
complete set of Plans and Specifications setting forth all Improvements for the
Project, and Borrower shall have furnished to Lender copies of all permits and
requisite approvals of any governmental body necessary for the construction and
use of the Project.
Architecture and Construction Contracts. Borrower shall have furnished in form
and substance satisfactory to Lender an executed copy of the Architecture
Contract and an executed copy of the Construction Contract.
Budget and Schedule of Estimated Advances. Lender shall have approved detailed
budget and cash flow projections of total Project costs and a schedule of the
estimated amount and time of disbursements of each Advance.
Borrower's Authorization. Borrower shall have provided in form and substance
satisfactory to Lender properly certified resolutions, duly authorizing the
execution and delivery of the Loan documents, and the consummation of the
Project, and such other authorizations and other documents as Lender In its sole
discretion may require.
Bond. If requested by Lender, Borrower shall have furnished a performance and
payment bond in an amount equal to 100% of the amount of the Construction
Contract, as well as a materialmen's and mechanics' payment bond, with such
riders and supplements as Lender may require, each in form and substance
satisfactory to Lender, naming the General Contractor as principal and Lender as
an additional obligee.
Appraisal. If requested by Lender, Borrower shall have furnished to Lender, at
Borrower's expense, an appraisal of the Property prepared by an appraiser
satisfactory to Lender and in form and substance satisfactory to Lender in its
sole discretion.
Plans and Specifications. If requested by Lender, Borrower shall have assigned
to Lender on Lender's forms the Plans and Specifications for the Project.
Environmental Report. If requested by Lender, Borrower shall have furnished to
Lender, at Borrower's expense, an environmental report and certificate on the
Property in form and substance satisfactory to Lender, prepared by an engineer
or other expert satisfactory to Lender stating that the Property complies with
all applicable provisions and requirements of the "Hazardous Substances"
paragraph set forth below.
Soil Report. If requested by Lender, Borrower shall have furnished to Lender, at
Borrower's expenses, a soil report for the Property In form and substance
satisfactory to Lender, prepared by
Exhibit 10(d), Page 6 of 14
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a registered engineer satisfactory to Lender stating that the Property is free
from soil or other geological conditions that would preclude its use or
development as contemplated without extra expense for precautionary, corrective
or remedial measures.
Survey. If requested by Lender, Borrower shall have furnished to Lender a survey
of recent date, prepared and certified by a qualified surveyor and providing
that the Improvements, if constructed in accordance with the Plans and
Specifications, shall lie wholly within the boundaries of the Property without
encroachment or violation of any zoning ordinances, building codes or
regulations, or setback requirements, together with such other information as
Lender in its sole discretion may require.
Zoning. Borrower shall have furnished evidence satisfactory to Lender that the
Property is duly and validly zoned for the construction, maintenance, and
operation of the Project.
Title Insurance. Borrower shall have provided to Lender an ALTA Lender's
extended coverage policy of title insurance with such endorsements as Lender may
require, issued by a title insurance company acceptable to Lender and in a form,
amount, and content satisfactory to Lender, insuring or agreeing to insure that
Lender's Mortgage or Deed of Trust on the Property is or will be upon
recordation a valid first lien on the Property free and clear of all defects,
liens, encumbrances, and exceptions except those as specifically accepted by
Lender in writing. If requested by Lender, Borrower shall provide to Lender, at
Borrower's expense, a foundation endorsement to the title policy upon the
completion of each foundation for the Improvements, showing no encroachments,
and upon completion an endorsement which insures the lien-free completion of the
Improvements.
DISBURSEMENT OF LOAN PROCEEDS. The following provisions relate to the
disbursement of funds from the Loan Fund.
Application for Advances. Each application shall be stated on a standard AIA
payment request form or other form approved by Lender, executed by Borrower, and
supported by such evidence as Lender shall reasonably require. Borrower shall
apply only for disbursement with respect to work actually done by the General
Contractor and for materials and equipment actually incorporated into the
Project. Each application for an Advance shall be deemed a certification of
Borrower that as of the date of such application, all representations and
warranties contained in the Agreement are true and correct, and that Borrower is
in compliance with all of the provisions of this Agreement.
Payments. At the sole option of Lender, Advances may be paid in the joint names
of Borrower and the General Contractor, subcontractor(s), or supplier(s) in
payment of sums due under the Construction Contract. At its sole option, Lender
may directly pay the General Contractor and any subcontractors or other parties
the sums due under the Construction Contract. Borrower appoints Lender as its
attorney-in-fact to make such payments. This power shall be deemed to be coupled
with an interest, shall be irrevocable, and shall survive an Event of Default
under this Agreement.
Projected Cost Overruns. If Lender at any time determines in its sole discretion
that the amount
Exhibit 10(d), Page 7 of 14
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in the Loan Fund is insufficient, or will be insufficient, to usably complete
and to pay for the Project, then within ten (10) days after receipt of a written
request from Lender, Borrower shall deposit in the Loan Fund an amount equal to
the deficiency as determined by Lender. The judgment and determination of Lender
under this section shall be final and conclusive. Any such amounts deposited by
Borrower shall be disbursed prior to any Loan proceeds.
Right to Advance Funds. When any event occurs that Lender determines may
endanger completion of the Project or the fulfillment of any condition or
covenant in this Agreement, Lender may require Borrower to furnish, within ten
(10) days after delivery of a written request, adequate security to eliminate,
reduce, or indemnify Lender against, such danger.
LIMITATION OF RESPONSIBILITY. The making of any Advance by Lender shall not
constitute or be interpreted as either (a) an approval or acceptance by Lender
of the work done through the date of the Advance, or (b) a representation or
indemnity by Lender to any party against any deficiency or defect in the work or
against any breach of any contract. Inspections and approvals of the Plans and
Specifications, the Improvements, the workmanship and materials used in the
Improvements, and the exercise of any other right of inspection, approval, or
inquiry granted to Lender in this Agreement are acknowledged to be solely for
the protection of Lender's interests, and under no circumstances shall they be
construed to Impose any responsibility or liability of any nature whatsoever on
Lender to any party. Neither Borrower nor any contractor, subcontractor,
materialman, laborer, or any other person shall rely, or have any right to rely,
upon Lender's determination of the appropriateness of any Advance. No
disbursement or approval by Lender shall constitute a representation by Lender
as to the nature of the Project, its construction, or its intended use for
Borrower or for any other person, nor shall it constitute an indemnity by Lender
to Borrower or to any other person against any deficiency or defects in the
Project or against any breach of any contract.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender that, while
this Agreement is in effect, Borrower will:
Construction of the Project. Cause the Improvements to be constructed and
equipped in a diligent and orderly manner and in strict accordance with the
Plans and Specifications approved by Lender, the Construction Contract, and all
applicable laws, ordinances, codes, regulations, and rights of adjoining or
concurrent property owners.
Life Insurance. As soon as practical, obtain and maintain life insurance in form
and with insurance companies reasonably acceptable to Lender on the following
individual in the amount indicated below and, at Lender's option, cause such
insurance coverage to be pledged, made payable to, or assigned to Lender on
Lender's forms. Lender, at its discretion, may apply the proceeds of any
insurance policy to the unpaid balances of any Indebtedness:
Name of insured Amount
--------------- ------
Exhibit 10(d), Page 8 of 14
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Xxxxxxx Xxxxxxx, President $1,000,000.00
Loan Proceeds. Use the Loan Funds solely for payment of bills and expenses
directly related to the Project.
Defects. Upon demand of Lender, promptly correct any defect in the Improvements
or any departure from the Plans and Specifications not approved by Lender before
further work shall be done upon the portion of the Improvements affected.
Notice of Commencement. File or cause the filing of a Notice of Commencement or
amended notice pursuant to Section 1311.04 of the Ohio Revised Code. Borrower
agrees to file such notice or cause such notice to be filed promptly after the
filing of the Mortgage that Borrower has granted to Lender and prior to the
beginning of any labor or work or the furnishing of materials for the
improvement of the Real Property. If Borrower shall fail to record or cause the
recordation of such a Notice of Commencement, or any amended notice, Lender may
record such a notice on behalf of Borrower, and Borrower agrees to pay all costs
and expenses incurred by Lender in obtaining information for such notice,
preparing such notice and recording such notice.
Project Claims and Litigation. Promptly inform Lender of (a) all material
adverse changes in the financial condition of the General Contractor; (b) any
litigation and claims, actual or threatened, affecting the Project or the
General Contractor, which could materially affect the successful completion of
the Project or the ability of the General Contractor to complete the Project as
agreed; and (c) any condition or event which constitutes a breach or default
under any of the Related Documents or any contract related to the Project.
GENERAL PROJECT PROVISIONS. The following provisions relate to the construction
and completion of the Project:
Change Orders. All requests for changes in the Plans and Specifications, other
than minor changes not exceeding $5,000.00 cumulative cost, must be in writing,
signed by Borrower and the architect, and delivered to Lender for its approval.
Borrower will not permit the performance of any work pursuant to any change
order or modification of the Construction Contract or any subcontract without
the written approval of Lender. Borrower will obtain any required permits or
authorizations from governmental authorities having jurisdiction before
approving or requesting a new change order.
Purchase of Materials; Conditional Sales Contracts. No materials, equipment,
fixtures, or articles of personal property placed in or incorporated into the
Project shall be purchased or installed under any Security Agreement or other
agreement whereby the seller reserves or purports to reserve title or the right
of removal or repossession, or the right to consider such items as personal
property after their incorporation into the Project, unless otherwise authorized
by Lender in writing.
Exhibit 10(d), Page 9 of 14
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Lender's Right of Entry and Inspection. Lender and its agents shall have at all
times the right of entry and free access to the Property and the right to
inspect all work done, labor performed, and materials furnished with respect to
the Project. Lender shall have unrestricted access to and the right to copy all
records, accounting books, contracts, subcontracts, bills, statements, vouchers,
and supporting documents of Borrower relating in any way to the Project.
Lender's Right to Stop Work. If Lender in good faith determines that any work or
materials do not conform to the approved Plans and Specifications or sound
building practices, or otherwise depart from any of the requirements of this
Agreement, Lender may require the work to be stopped and withhold disbursements
until the matter is corrected. In such event, Borrower will promptly correct the
work to Lender's satisfaction. No such action by Lender will affect Borrower's
obligation to complete the Improvements on or before the Completion Date. Lender
is under no duty to supervise or inspect the construction or examine any books
and records. Any inspection or examination by Lender is for the sole purpose of
protecting Lender's security and preserving Lender's rights under this
Agreement. No default of Borrower will be waived by any inspection by Lender. In
no event will any inspection by Lender be a representation that there has been
or will be compliance with the Plans and Specifications or that the construction
is free from defective materials or workmanship.
Indemnity. Borrower shall indemnify and hold Lender harmless from any and all
claims asserted against Lender or the Property by any person, entity, or
governmental body, or arising out of or in connection with the Property,
Improvements, or Project. Lender shall be entitled to appear in any action or
proceeding to defend itself against such claims, and all costs incurred by
Lender in connection with such defense, including attorneys' fees, shall be paid
by Borrower to Lender. Lender shall, in its sole discretion, be entitled to
settle or compromise any asserted claims against it, and such settlement shall
be binding upon Borrower for purposes of this indemnification. All amounts paid
by Lender under this paragraph shall be secured by Lender's Mortgage or Deed of
Trust, if any, on the Property, shall be deemed an additional principal Advance
under the Loan, payable upon demand, and shall bear interest at the rate
applicable to the Loan.
RIGHT OF SETOFF. Borrower grants to Lender a contractual possessory security
interest in, and hereby assigns, conveys, delivers, pledges, and transfers to
Lender all Borrower's right, title and interest in and to, Borrower's accounts
with Lender (whether checking, savings, or some other account), including
without limitation all accounts held jointly with someone else and all accounts
Borrower may open in the future, excluding however all XXX and Xxxxx accounts,
and all trust accounts for which the grant of a security interest would be
prohibited by law. Borrower authorizes Lender, to the extent permitted by
applicable law, to charge or setoff all sums owing on the Indebtedness against
any and all such accounts.
EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default
under this Agreement:
Default on Indebtedness. Failure of Borrower to make any payment when due on the
Loans.
Other Defaults. Failure of Borrower to comply with or to perform when due any
other term,
Exhibit 10(d), Page 10 of 14
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obligation, covenant or condition contained in this Agreement
False Statements. Any warranty, representation or statement made or furnished to
Lender by or on behalf of Borrower is false or misleading In any material
respect at the time made or furnished, or becomes false or misleading at any
time thereafter.
Insolvency. The dissolution or termination of Borrower's existence as a going
business, the insolvency of Borrower, the appointment of a receiver for any part
of Borrower's property, any assignment for the benefit of creditors, any type of
creditor workout, or the commencement of any proceeding under any bankruptcy or
insolvency laws by or against Borrower.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help, repossession or any
other method, by any creditor of Borrower, any creditor of any Grantor against
any collateral securing the Indebtedness, or by any governmental agency. This
includes a garnishment, attachment, or levy on or of any of Borrower's deposit
accounts with Lender.
Events Affecting Guarantor. Any of the preceding events occurs with respect to
any Guarantor of any of the Indebtedness or any Guarantor dies or becomes
incompetent, or revokes or disputes the validity of, or liability under, any
Guaranty of the Indebtedness. Lender, at its option, may, but shall not be
required to, permit the Guarantor's estate to assume unconditionally the
obligations arising under the guaranty in a manner satisfactory to Lender, and,
in doing so, cure the Event of Default.
Change In Ownership. Any change in ownership of twenty-five percent (25%) or
more of the common stock of Borrower.
Adverse Change. A material adverse change occurs in Borrower's financial
condition, or Lender believes the prospect of payment or performance of the
Indebtedness is impaired.
Insecurity. Lender, in good faith, deems itself insecure.
Breach of Construction Contract. The Improvements are not constructed in
accordance with the Plans and Specifications or in accordance with the terms of
the Construction Contract.
Cessation of Construction. Prior to the completion of construction of the
Improvements and equipping of the Project, the construction of the Improvements
or the equipping of the Project is abandoned or work thereon ceases for a period
of more than ten (10) days for any reason, or the Improvements are not completed
for purposes of final payment to the General Contractor prior to the completion
date represented by Borrower to Lender, regardless of the reason for the delay.
Transfer of Property. Sale, transfer, hypothecation, assignment, or conveyance
of the Property or the Improvements or any portion thereof or interest therein
by Borrower or any Grantor without Lender's prior written consent.
Exhibit 10(d), Page 11 of 14
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Condemnation. All or any material portion of the Property is condemned, seized.
or appropriated without compensation, and Borrower does not within thirty (30)
days after such condemnation, seizure, or appropriation, initiate and diligently
prosecute appropriate action to contest in good faith the validity of such
condemnation, seizure, or appropriation.
EFFECT OF AN EVENT OF DEFAULT; REMEDIES. Upon the occurrence of any Event of
Default and at any time thereafter, Lender may, at its option, but without any
obligation to do so, and in addition to any other right Lender may have, do any
one or more of the following without notice to Borrower: (a) Cancel this
Agreement; (b) institute appropriate proceedings to enforce the performance of
this Agreement; (c) Withhold further disbursement of Loan Funds; (d) Expend
funds necessary to remedy the default; (e) Take possession of the Property and
continue construction of the Project; (f) Accelerate maturity of the Note and/or
Indebtedness and demand payment of all sums due under the Note and/or
Indebtedness; (g) Bring an action on the Note and/or indebtedness; (h) Foreclose
Lender's Mortgage or Deed of Trust, if any, on the Property in any manner
available under law; and (i) Exercise any other right or remedy which it has
under the Note or Related Documents, or which is otherwise available at law or
in equity or by statute.
COMPLETION OF IMPROVEMENTS BY LENDER. If Lender takes possession of the
Property, it may take any and all actions necessary in Its judgment to complete
construction of the Improvements, including but not limited to making changes in
the Plans and Specifications, work, or materials and entering into, modifying or
terminating any contractual arrangements, subject to Lender's right at any time
to discontinue any work without liability. If Lender elects to complete the
Improvements, it will not assume any liability to Borrower or to any other
person for completing the Improvements or for the manner or quality of
construction of the Improvements, and Borrower expressly waives any such
liability. Borrower irrevocably appoints Lender as its attorney-in-fact, with
full power of substitution, to complete the improvements, at Lender's option,
either in Borrower's name or in its own name. In any event, all sums expended by
Lender in completing the construction of the Improvements will be considered to
have been disbursed to Borrower and will be secured by the collateral for the
Loan. Any such sums that cause the principal amount of the Loan to exceed the
face amount of the Note will be considered to be an additional Loan to Borrower,
bearing interest at the Note rate and being secured by the collateral. For these
purposes, Borrower assigns to Lender all of its right, title and interest in and
to the Project Documents; however Lender will not have any obligation under the
Project Documents unless Lender expressly hereafter agrees to assume such
obligations in writing. Lender will have the right to exercise any rights of
Borrower under the Project Documents upon the occurrence of an Event of Default.
All rights, powers, and remedies of Lender under this Agreement are cumulative
and alternative, and are in addition to all rights which Lender may have under
applicable law.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
Agency. Nothing in this Agreement shall be construed to constitute the creation
of a partnership or joint venture between Lender and Borrower or any contractor.
Lender is not an agent or representative of Borrower. This Agreement does not
create a contractual relationship with and
Exhibit 10(d), Page 12 of 14
13
shall not be construed to benefit or bind Lender in any way with or create any
contractual duties by Lender to any contractor, subcontractor, material man,
laborer, or any other person.
Amendments. This Agreement, together with any Related Documents, constitutes the
entire understanding and agreement of the parties as to the matters set forth in
this Agreement. No alteration of or amendment to this Agreement shall be
effective unless given in writing and signed by the party or parties sought to
be charged or bound by the alteration or amendment.
Applicable Law. This Agreement has been delivered to Lender and accepted by
Lender in the State of Ohio. if there Is a lawsuit, Borrower agrees upon
Lender's request to submit to the jurisdiction of the courts of Richland County,
the State of Ohio. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
Costs and Expenses. Borrower agrees to pay upon demand all of Lender's expenses,
including without limitation attorneys' fees, incurred in connection with the
preparation, execution, enforcement, modification and collection of this
Agreement or in connection with the Loans made pursuant to this Agreement.
Lender may pay someone else to help collect the Loans and to enforce this
Agreement, and Borrower will pay that amount. This includes, subject to any
limits under applicable law, Lender's attorneys' fees and Lender's legal
expenses, whether or not there is a lawsuit, including attorneys' fees for
bankruptcy proceedings (including efforts to modify or vacate any automatic stay
or injunction), appeals, and any anticipated post-judgment collection services.
Borrower also will pay any court costs, in addition to all other sums provided
by law.
Survival. All warranties, representations, and covenants made by Borrower in
this Agreement or in any certificate or other instrument delivered by Borrower
to Lender under this Agreement shall be considered to have been relied upon by
Lender and will survive the making of the Loan and delivery to Lender of the
Related Documents, regardless of any investigation made by Lender or on Lender's
behalf.
Time is of the Essence. Time is of the essence in the performance of this
Agreement.
Waiver. Lender shall not be deemed to have waived any rights under this
Agreement unless such waiver is given in writing and signed by Lender. No delay
or omission on the part of Lender in exercising any right shall operate as a
waiver of such right or any other right. A waiver by Lender of a provision of
this Agreement shall not prejudice or constitute a waiver of Lender's right
otherwise to demand strict compliance with that provision or any other provision
of this Agreement. No prior waiver by Lender, nor any course of dealing between
Lender and Borrower, or between Lender and any Grantor, shall constitute a
waiver of any of Lender's rights or of any obligations of Borrower or of any
Grantor as to any future transactions. Whenever the consent of Lender is
required under this Agreement, the granting of such consent by Lender In any
Instance shall not constitute continuing consent in subsequent instances where
such consent is required, and in all cases such consent may be granted or
withheld in the sole discretion of Lender.
BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS
Exhibit 10(d), Page 13 of 14
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CONSTRUCTION LOAN AGREEMENT, AND BORROWER AGREES TO ITS TERMS. THIS AGREEMENT IS
DATED AS OF DECEMBER 2, 1996.
BORROWER:
Xxxxxxx and Xxxxxx, Inc.
By: /s/ Xxxxxxx Xxxxxxx, President By: /s/ Xxxx Xxxxxxxxx, CFO
LENDER:
First-Xxxx National Bank
By: /s/ Xxxxx Xxxxxxx, Authorized Officer BORROWER:
Exhibit 10(d), Page 14 of 14
