EXHIBIT 10.33
MASTER REVOLVING CREDIT AGREEMENT
THIS MASTER CREDIT AGREEMENT, dated as of February __, 1999, (the
"Agreement"), is by and among EQUITY ONE, INC., a Maryland corporation, c/o
Xxxxx Xxxxxxx, 0000 Xxxxx Xxxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000 (the "Borrower")
and CITY NATIONAL BANK OF FLORIDA, a national banking association, with its
principal address at 00 Xxxx Xxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000 (the
"Lender").
W I T N E S S E T H:
WHEREAS, the Borrower has obtained a commitment from the Lender to make
available to the Borrower a revolving line of credit facility (the "RLOC Loan")
in the aggregate principal amount of THIRTY FIVE MILLION DOLLARS AND 00/100
($35,000,000.00) DOLLARS; and
WHEREAS, advances under the Loan in excess of SIXTEEN MILLION FIVE
HUNDRED NINETY THOUSAND ($16,590,000.00) DOLLARS ("CNB Availability") are
conditioned upon Lender securing participation in the Loan from the Lenders for
all advances in excess of the CNB Availability; and,
WHEREAS, the Lender has agreed that the proceeds of loans made under
such RLOC Loan shall be used by the Borrower and/or its affiliates to finance
commercial real estate acquisitions, payment of dividends, development
activities for Borrower's properties, and working capital for general corporate
purposes;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, he parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS. In addition to terms defined elsewhere in this
Agreement, the following terms have the meanings indicated which meanings shall
be equally applicable to both the singular and the plural forms of such terms:
ADVANCE: Advances of funds under the RLOC which shall be
conditioned upon the satisfaction of certain conditions precedent specified in
Section 3.2 hereof.
AFFILIATES: Any Person which directly or indirectly, is in
control of, is controlled by or is under common control with, another Person.
For purposes of this definition, a Person shall be deemed to be "controlled by"
the Person (the "Controlling Person") if the Controlling Person possesses,
directly or indirectly, power either to (i) vote Fifty-One Percent (51%) or more
of the securities having ordinary voting power for the election of directors of
such Person, or (ii) direct or cause the direction of the management and
policies of such Person whether by contract, through the ownership of voting
securities or otherwise.
AFFILIATED BORROWER: An affiliated entity of Borrower that may
borrow money under the terms of this Master Credit Agreement. An affiliated
Borrower is sometimes referred to as a Borrowing Entity, Related Entity or
Affiliated Entity.
AGREEMENT: This Master Credit Agreement, as the same may from
time to time be amended.
ASSETS: At a particular date, the fair value of the total assets
of a particular person that would be set forth on a balance sheet of such person
prepared at such date, and with respect to entities other than individuals, in
accordance with GAAP.
AVAILABILITY FEE: In addition to the Commitment Fee, Borrower
shall pay Lender an available fee, which is calculated at 25% of the unused CNB
Availability together with any additional sums for which Lender has obtained
participants (the "Total Availability"). The Availability Fee shall be paid
every ninety (90) days commencing from the date of execution of the Note. In
determining the amount of the Availability Fee, the holdback for taxes and
insurance shall be deducted, and the amount of the Total Availability shall be
calculated on an annualized basis.
AVAILABLE COMMITMENT: On any date, an amount equal to the
difference between (a) the amount of the Commitment (subject to the limitations
of the CNB Availability) and (b) the total of the outstanding advances under the
line of credit.
BORROWER: Equity One, Inc., a Maryland corporation, and/or is
affiliates.
BORROWING REQUEST: A written request by the Borrower for a Loan
specifying (i) the proposed Loan Closing Date, (ii) the amount of the proposed
Loan, (iii) a legal description of the Property to be financed with the proceeds
of the proposed Loan, and (iv) a copy of the executed Purchase and Sale
Agreement.
COMMITMENT: The obligation of Lender to make Loans to Borrower in
a maximum aggregate principal amount of $35,000,000.00 at any time, subject to
obtaining loan participation's for loans in excess of the CNB Availability.
COMMITMENT EXPIRATION DATE: All advances made pursuant to this
Master Credit Agreement shall be repaid on or before January ___, 2002.
COMMITMENT FEES: Borrower has paid lender the initial commitment
fee in the sum of $18,750.00.
COMMITMENT LETTER: shall mean the commitment letter from Lender
to Borrower, dated November 23, 1998, and accepted and as modified by Borrower
on December 10, 1998, regarding the Line of Credit.
COMMONLY CONTROLLED ENTITY: An entity, whether or not
incorporated, which is under common control with the Borrower with in the
meaning of Section 4001 of ERISA.
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ERISA: The Employee Retirement Income Security Act of 1974, as
the same may from time to time be amended, or any successor legislation thereto
which may replace, amend or otherwise modify provisions thereof.
EVENT OF DEFAULT: As defined in Section 7.1 hereof.
GAAP: Those generally accepted accounting principles and
practices which are recognized as such by the American Institute of Certified
Public Accountants acting through its Accounting Principles Board or by the
Financial Accounting Standards Board or through other appropriate boards or
committees thereof and which are consistently applied for all periods after the
date hereof.
HAZARDOUS SUBSTANCES: Any substance or material (a) identified in
the Section 101(14) of the Comprehensive Environmental Response Compensation and
Liability Act of 1980, 42 USC ss. 9601(14) and as set forth in Title 40, Code of
Federal Regulations, Part 302, as the same may be amended from time to time, or
(b) determined to be toxic, a pollutant or contaminant, under Federal, state or
local statute, law, ordinance, rule or regulation or judicial or administrative
order or decision, as the same may be amended from time to time, including but
not limited to, petroleum and petroleum products as defined in Sec. 376.301(10),
Florida Statues, as may be amended from time to time, (c) asbestos, (d) radon,
(e) polychlorinated biphenyls and such other materials, substances or waste
which are otherwise dangerous, hazardous, harmful or deleterious to human health
or the environment.
INCREASE PROMISSORY NOTE: Promissory note executed by Borrower to
evidence any advances above the CNB Availability.
INDEBTEDNESS: (a) all indebtedness, whether present or future,
for borrowed money or for the deferred purchase price of any property, (b) all
indebtedness, whether present or future, secured by a lien on property, and (c)
all obligations of partnerships or joint ventures in respect of which the Person
is primarily or secondarily liable as a partner or joint venturer or otherwise
(provided that, for purposes of determining the amount of the indebtedness, the
full amount of such obligations, without giving effect to the counterpart
liability or contributions of other participants in the partnership or joint
venture, shall be included).
LENDER: City National Bank of Florida, a national banking
association.
LIABILITIES: At a particular date, the amount of liabilities,
including without limitation contingent liabilities, of a particular person that
would be set forth on a balance sheet of such person prepared at such date, and
with respect to entities other than individuals, otherwise in accordance with
GAAP.
LIBOR: The term LIBOR Rate means the fluctuating rate per annum
equal to the rate published in The Wall Street Journal as determined by the
Lender as the average London Interbank Market Offering Rate (LIBOR) at which
deposits in United States dollar with a term equal to thirty (30) days were
offered in the London Interbank Market.
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LINE OF CREDIT: The $35,000,000.00 revolving line of credit made
available by Lender to Borrower pursuant to the terms, provisions and conditions
of this Agreement.
LINE OF CREDIT CLOSING DATE: The date set forth in the
introduction to this Agreement.
LOAN: The Loan evidenced by the RLOC Note.
LOAN ADVANCE: Any principal amount advanced by Lender to or on
behalf of Borrower or any affiliated Borrower under the Line of Credit pursuant
to the terms, provisions and conditions of this Agreement and the Loan
Documents.
LOAN CLOSING DATE: The closing date and time of each Loan, which
shall be satisfactory to Lender but in no event later than 30 days after the
delivery to Lender of a Borrowing Request, assuming that the Borrower has
satisfied all of the conditions set forth in Section 3.2 hereof.
LOAN DOCUMENTS: As such term is defined in Section 2.3 hereof.
PBGC: The Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any successor corporation
established under ERISA.
PERSON: Any natural person, corporation, unincorporated
organization, trust, joint-stock company, joint venture, association, company,
partnership or government, or any agency or political subdivision of any
government.
PLAN: At any particular time, any employee benefit plan which is
subject to the provisions of Title IV of ERISA and which is maintained in whole
or in part for employees of the Borrower, any of its Subsidiaries or any
Commonly Controlled Entity, and in respect of which the Borrower or a Commonly
Controlled Entity is (or if such Plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
RELEASE PRICE: Borrower shall be entitled to release any property
which is encumbered b y the lien of the Mortgage, provided that, after payment
of the release price, the property which remains encumbered by the lien of the
Mortgage has a Fair Market Value, as determined under this Agreement, which
results in a loan to value ratio of no greater than Seventy (70%) Percent for
improved property and Fifty (50%) Percent for vacant property.
REVOLVING LINE OF CREDIT PROMISSORY: The Promissory Note executed
simultaneously herewith in the original principal sum of $16,590,000.00.
SOLVENT: With respect to any person on a particular date, on such
date (a) the faire value of the Assets of such person, exclusive of (i) Assets
transferred, concealed, or removed with intent to hinder, delay, or defraud such
person's creditors and (ii) Assets that may be exempted under 11 U.S.C. ss. 522,
is greater than the total amount of Liabilities of such person,
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(b) the present fair salable value of the assets of such person is not less than
the amount that will be required to pay the probable liability of such person on
its debts as they become absolute and matured, (c) such person is able to
realize upon its assets and pay its debts and other liabilities beyond such
person's ability to pay as such debts and other liabilities, beyond such
person's ability to pay as such debts and liabilities mature, (d) such person is
not engaged in business or a transaction, and is not about to engage in business
or a transaction, for which such person's property would constitute unreasonably
small capital and (e) such person does not intend to incur, and does not believe
that it will incur, debts that would be beyond its ability to pay as they
mature.
SUBSIDIARY: Any Person in which other Person may own, directly or
indirectly, an equity interest of more than 50%, or which may effectively be
controlled by such Person.
TANGIBLE NET WORTH: At a particular date, Assets of a particular
person (excluding goodwill and such assets which are properly classified as
tangible assets on a balance sheet of such person prepared in accordance with
GAAP) less Liabilities of such person at such date.
Section 1.2 OTHER DEFINITIONAL PROVISIONS. The words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and section, subsection and exhibit references are references to this
Agreement unless otherwise specified.
ARTICLE II
LOANS
Section 2.1 COMMITMENT TO MAKE LOANS
(a) ADVANCES. The Lender agrees, on the terms of this Agreement, to make
make Advances in United States dollars to the Borrower and/or an Affiliated
Borrower for a period commencing on the Line of Credit Closing Date and
terminating on the Commitment Expiration Date, or, if an Event of Default
has occurred prior to such date, on the date on which the Borrower receives
notification that the Lender's Commitment has been terminated in full
pursuant to Article VII hereof.
(b) PRE-COMMITTED ADVANCES.
Lender has approved advances totalling the sum of SIXTEEN MILLION
FIVE HUNDRED NINETY THOUSAND AND NO/100 ($16,590,000.00) DOLLARS to the
following entities and in the amounts set forth below:
Equity One (Sky Lake) Inc., a
Florida corporation, to be secured
by a mortgage on the real property
described on Exhibit "A". Improved Parcel: $ 1,155,000.00
Vacant Parcel $ 6,352,000.00
Equity One (Beta) Inc., a Florida
corporation, to be secured by a
mortgage on the real property
described on Exhibit "B". $ 3,815,000.00
Equity One (Beauclerc) Inc., a
Florida corporation, to be secured
by a mortgage on the real property
described on Exhibit "C". $ 2,030,000.00
Gazit (Meridian) Inc., a Florida
corporation, to be secured by a
mortgage on the real property
described on Exhibit "D". Improved Parcel: $ 2,225,500.00
Vacant Parcel $ 1,115,000.00
---------------
TOTAL: $16,590,000.00
Section 2.2 NOTICE AND MANNER OF BORROWING. Each Advance shall be funded
upon satisfaction of all pre-closing conditions contained in this Agreement.
Lender acknowledges that the pre-closing condition for the Pre-Committed
Advances has been satisfied.
Section 2.3 ADVANCE DOCUMENTS. With respect to each Advance, including
the Pre-committed Advances, the Borrower shall execute and deliver to Lender on
the applicable Loan Closing Date the following documents (collectively, the
"Loan Documents") to evidence and/or secure such Loan:
(a) NOTE. Promissory Note in the form of Exhibit "E"
attached hereto and made a part hereof, with appropriate insertions, in the
amount of the Loan.
(b) MORTGAGE. First mortgage encumbering the fee interest
in the Land and Building (if improved) financed with the proceeds of such Loan,
and creating a perfected first security interest in any improvements constructed
on the Land and all furniture, furnishings, equipment, fixtures, building
supplies and materials installed in, affixed to, placed upon or otherwise
utilized in the operation of such land, including all additions hereto,
substitutions therefor and replacements thereof, which mortgage shall be in the
form of Exhibit "F" attached
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hereto and made a part hereof, with appropriate insertions. Furthermore,
Borrower shall execute appropriate UCC-1 financing statements as required by
Lender. For all Advances above the Pre-Committed Advances, Borrower and the
Affiliated Borrower, if applicable, shall execute and deliver a Promissory note
(evidencing the amount of the increase) on the same terms as the Note and a
Mortgage Modification and Spreader Agreement, prepared by Lender's counsel, if
the Added Parcel is located in the State of Florida. If the Added Parcel is
located outside the State of Florida, Borrower and Affiliated Borrower, if
applicable, shall execute such security documents as Lender and its counsel may
require.
(c) ASSIGNMENT OF RENTS AND LEASES. An assignment of all
rents, issues and profits with respect to he Building and Land financed with the
process of such Advance, which assignment shall be in the form of Exhibit "G"
attached hereto and by this reference made a part hereof, with appropriate
insertions.
(d) ENVIRONMENTAL COMPLIANCE AND INDEMNITY AGREEMENT. An
Environmental Compliance and Indemnity Agreement with respect to the Building
and Land financed with the proceeds of such Advance in the form of Exhibit "H"
attached hereto and by this reference made a part hereof, with appropriate
insertions.
(e) ADVANCES ABOVE CNB AVAILABILITY. For all advances
above the CNB Available and as a condition thereto, Borrower and the Affiliated
Borrower, if applicable, and if the Real Property which is to serve as
additional collateral ("Added Parcel") is located within the State of Florida, a
Mortgage Modification and Spreader Agreement shall be executed and recorded in
the County where the Added Parcel is located so that said advance will be
secured by a first lien under the Mortgage. If the Property is located outside
of the State of Florida, then Borrower shall cause the advance to be secured by
a first lien on the Property through a Mortgage or Deed of Trust according to
the laws of the State in which the Property is situated.
(f) LIMITATIONS ON ADVANCES. Notwithstanding anything to
the contrary contained herein, the total value for advance purposes, of vacant
land shall not exceed $7,400,000.00.
(g) OTHER DOCUMENTS. Such other documents customarily
required by Lender, including, without limitation, affidavits, UCC-1 Financing
Statements, anti-coercion statements, flood notices and closing statements.
Section 2.4 INTEREST. Each Advance shall bear interest on the unpaid
principal balance thereof at a variable rate per annum equal to Two Hundred
Twenty Five (2.25%) Basis Points over the one month (30-day) LIBOR Rate in
effect on the first day of each interest period.
Section 2.5 PAYMENTS.
(a) INTEREST. During the entire term of this RLOC Loan,
interest shall be payable in arrears on the principal balance thereof
outstanding from time to time.
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(b) PRINCIPAL. The outstanding principal balance and all
accrued and unpaid interest and any and all other payments due under this RLOC
Loan shall be due and payable in full on the Maturity Date.
(c) BORROW AND REBORN. Prior to maturity, and provided the
Loan is current and no Event of Default has occurred, as such term is defined in
the Note (a copy of the form of Note is attached hereto and made a part hereof
as Exhibit "E"), Maker may use the revolving line of credit by borrowing on,
paying or prepaying the Note, in whole or in part, and reborrowing all in
accordance with and subject to the terms and conditions of the Mortgage (a copy
of the form of Mortgage is attached hereto and made a part hereof as Exhibit
"F"0.
Section 2.6 SUBSTITUTE COLLATERAL. Borrower may, subject to Lender's
prior approval, which approval may be given or withheld in Lender's sole and
absolute discretion, substitute, collateral, whereby Lender will release the
property to be substituted from the lien of the Mortgage and Lender shall
simultaneously be given a first mortgage lien on the substituted property,
provided, with respect to the substituted property, all the terms and conditions
to an Advance have occurred to the Lender and its counsel's satisfaction. If
Lender agrees to substitute collateral, Borrower shall pay Lender an
administrative fee, at the time of closing on the substituted collateral, in the
sum of $5,000.00, together with all out of pocket expenses incurred by Lender
including counsel fees, for each transaction in which collateral is substituted.
Section 2.7 HOLDBACK FOR REAL ESTATE TAXES AND INSURANCE. For all Loans,
Lender shall hold back from availability under the RLOC Loan an amount which
would be sufficient to pay one year's real estate taxes on all property which is
encumbered b the lien of the Mortgage, and for all improved property encumbered
by the lien of the Mortgage, an amount equal to one year's insurance premium for
the casualty insurance. No interest shall be paid on the foregoing holdbacks
unless said sums are actually advanced for the payment of real estate taxes
and/or insurance. If Borrower fails to provide Lender with proof of payment of
real state taxes on or before December 31 of the year in which the taxes are
due, Lender may advance the sum held back for payment of the real estate taxes,
which swum shall be secured by the lien of the Mortgage. Likewise, if Borrower
fails to provide proof of payment of the casualty insurance premium, on or
before the date that the premiums is payable, Lender may advance the sum held
back in payment of the insurance premium and it shall also be secured by the
lien of the Mortgage.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 INITIAL CONDITIONS PRECEDENT. The Lender shall not be
obligated to make any Advances hereunder unless the following conditions have
been satisfied in the sole opinion of the Lender and its counsel:
(a) AGREEMENT. This Agreement shall be been duly executed
and delivered by both Borrower and Lender.
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(b) AUTHORIZATION DOCUMENTS. Borrower and/or an Affiliated
Borrower shall, with respect to the Pre-Committed Advances, and as a condition
precedent to adding additional property as collateral under this Agreement, have
delivered to Lender a certified copy of the articles of incorporation of the
entity owning the Property for which an advance is requested and a certificate
of good standing from the appropriate governmental authority, a copy of the
by-laws of said entity, a certified copy of the resolution of the board of
directors authorizing execution of the Loan Documents and an incumbency
certificate stating the offices held by each signatory.
(c) OPINION LETTER. Borrower shall have delivered to
Lender an opinion of Borrower's counsel reasonably acceptable to Lender and its
counsel.
(d) FINANCING STATEMENT. Borrower shall have delivered to
Lender current certified financial statements, reflecting its Assets, all its
Liabilities and showing Borrower has a debt to net worth ratio of no less than
1.85 to 1.
(e) OTHER DOCUMENTS. Borrower shall have delivered to
Lender of such other documents reasonably deemed necessary by Lender, which must
be in form and substance acceptable to Lender and its counsel.
Section 3.2 CONDITIONS, PRECEDENT TO THE FUNDING OF ADVANCES. Lender's
obligation to make such Advance shall be subject to the following conditions
precedent.
(a) LOAN DOCUMENTS. All Loan Documents shall have been
duly executed and delivered by Borrower to Lender.
(b) NO DEFAULT. No Event of Default hereunder or under any
of the documents which secure payment of this RLOC Loan or any Loan Document
shall have occurred and be continuing or will occur upon the making of the
Advance, and all representations and warranties made by the Borrower or an
Affiliated Borrower hereunder and/or in any Loan Documents shall be true and
correct with the same effect as though the representations and warranties had
been made on and as of the Loan Closing Date.
(c) FINANCIAL CONDITION. The financial condition or
operations of the Borrower shall not have changed adversely in any material
respect. In addition, Xxxxx Xxxxxxx or Xxxxx Xxxxxx shall be the chief executive
officer of Borrower and shall be responsible for managing and controlling the
operations of Borrower.
(d) AUTHORIZATION DOCUMENTS. Borrower shall have delivered
to Lender at least five (5) business days prior to the Date on which Borrower
shall complete the closing which adds the Added Parcel as security for payment
of the RLOC Loan copies of the articles of incorporation (or other
organizational documents), good standing certificates and bylaws of the
Borrowing Entity, certified copies of resolutions of the board of directors (or
other governing Person(s)) of the borrowing entity approving the execution of
the Loan Documents and authorizing the individual signatories to execute the
Loan Documents on behalf of
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Borrowing entity, together with a certificate of incumbency stating the offices
or positions held by each such signatory.
(e) OPINION LETTER. Borrower shall have deliver to Lender
an opinion of Borrower's counsel reasonably acceptable to Lender and its
counsel.
(f) APPRAISAL. Prior to closing on the Added Parcel,
Lender must receive a current appraisal of the Added parcel securing payment of
the Loan expressing an opinion of market value which results in a loan to value
ratio for income producing properties of no greater than seventy (70%) percent s
determined by Lender and a loan to value ratio for vacant land of no greater
than (50%) percent as determined by Lender. The Lender must arrange for the
appraisal and engage the appraiser. Each appraisal must be ordered directly by
the Lender and must conform to the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989 (FIRREA) and the related rules and regulations of the
Officer of the Comptroller of the Currency (the OCC), 12 CFT part 34, effective
August 24, 1990, as amended. Each appraisal, including without limitation, the
appraiser and appraisal methodology and the conclusion(s) of market value, shall
be subject to Lender's review and approval. All appraisal costs and fees shall
be paid by Borrower and Borrower hereby agrees to immediately pay or prepay such
appraisal costs or fees upon the request of Lender.
(g) ENVIRONMENTAL AUDIT. Receipt and satisfactory review
and approval of Lender of a phase I environmental audit or assessment report, at
Borrower's expense, of the condition of the Added Parcel, performed to the
Lender's satisfaction by a qualified environmental consultant or the independent
engineer acceptable to Lender in its sole and absolute discretion, verifying
that no environmental contamination on the Land has occurred or is imminent and
containing adequately supported and documented conclusions (which conclusions
must be satisfactory to the Lender, in its sole discretion) which evaluates (i)
whether any hazardous or toxic substances, hazardous wastes, pollutants,
contaminants, or any other environmental hazards are present in the soil,
surface water or groundwater at or adjacent to the Land; (ii) whether operations
at the Land are in compliance with all federal, state and local air quality and
water quality regulations and other applicable environmental laws; and (iii)
whether there are any other potential or actual environmental concerns from
current or prior ownership and uses of the Land. The contract with the
consultant for the conduct of an environmental audit or assessment shall contain
a provision which expressly states that the Lender is an intended beneficiary of
the contract and is entitled to rely on any report of findings or conclusions or
the results of the environmental audit.
(h) ASBESTOS INSULATION. It is also a condition of the
Lender's obligation to close on each advance or accept an added Parcel as
collateral hereunder encumbering improved property, that the Borrower furnish
the Lender with evidence, satisfactory to the Lender and its attorneys, that
there is no asbestos insulation in the improvements to the mortgaged property.
(i) DOCUMENTARY STAMPS AND INTANGIBLE TAX. Borrower shall
indemnify and hold Lender harmless of and from any and all liability in
connection with the
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payment of documentary stamp r intangible tax in connection with advances made
hereunder, which indemnification shall survive closing or a repayment of the
Loan.
(j) PROPERTY EVALUATION REPORT. For each Loan encumbering
improved property which secures repayment of the Loan, Borrower shall provide
Lender a Property Evaluation Report prepared by a licensed engineer showing the
Property in a condition reasonably acceptable to Lender.
(k) TITLE SURVEY. For each property which __________
repayment of the RLCO Loan, Borrower shall provide Bank with a title survey of
the premises by a licensed or registered land surveyor who shall be acceptable
to Lender, certified to Borrower, Lender and the title insurance company, which
shall show a state of facts in form, scope and substance acceptable to Bank,
including but not limited to, an adequate and accurate legal description,
interior lot lines, if any, the location of all xxxxxxxxx xxxxxxx, xxxxx and
overlaps with adjacent property, the location of all improvements on the
Mortgaged Property, location of utilities, elevations, high water marks,
easements and rights-of-way, whether of record or apparent, ingress and egress
to and from each of the Mortgaged Properties and natural and constructed objects
affecting the premises and showing any encroachments and/or discrepancies with
any record instruments or existing boundary markers and shall contain a
calculation of the amount of land included in the survey.
(l) TITLE INSURANCE. Borrower shall provide Lender with a
title insurance policy with a liability limit of no less than Seventy (70%)
Percent of Fair Market Value of improved property and Fifty (50%) Percent of
Fair Market Value of vacant land insuring the Mortgage and if modified and
spread to Lender as a first lien on the good and marketable fee simple title to
each of the mortgaged properties and issued by a title insurance company (with
co-insurance or re-insurance with direct access agreements as Lender may
require) in such forms, amounts and by such title insurance companies as shall
then be satisfactory to Lender o in the event of advances above the CNB
Availability and the Property is located in Florida, an endorsement to the
existing policy of title insurance insuring that the mortgage constitutes a
first lien on the good and marketable fee simple title to the Property for which
the lien of the mortgage has been spread. The title insurance policies shall be
subject only to such exceptions as shall be approved by Lender's counsel subject
to Borrower's right to transfer a lien to security in accordance with Florida
Statute 713.24 so as not to affect the Lender's first lien on the good and
marketable fee simple title to the mortgage properties and shall have a variable
rate, environmental lien, Florida form 9 endorsements and such other endorsement
required by Lender's counsel. If land is vacant, Borrower shall provided general
liability insurance naming Lender as an additional insured in amounts acceptable
to Lender and written insurance companies authorized to do business in Florida
and acceptable to Lender.
(m) OTHER DOCUMENTS. Borrower shall have delivered to
Lender such other documents reasonably deemed necessary to Lender, which must be
in form and substance acceptable to Lender.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce Lender to enter into this Agreement and to make
Loans, Borrower and each of the Borrowing Entities shall have been deemed to
have made the following representations and warranties to the Lender, all of
which shall survive the execution and delivery of this Agreement and any Loan
Documents:
Section 4.1 DUE EXISTENCE AND POWER OF BORROWER ENTITY.
(a) The Borrower is a Maryland corporation authorized to
do business in the State of Florida and validly existing and in good standing
under the laws of the State of Maryland;
(b) Each of the Borrowing Entitles is a cooperation duly
organized, validly existing and in good standing under the laws of the State of
Florida and has all requisite corporate power and authority to own its
properties and to carry on its business as now being conducted;
(c) Borrower and each of the Borrowing Entities have
compiled with all filing, registration and other requirements of state and local
laws, insofar as such laws relate to doing business;
(d) Borrower has the full power and authority to execute,
deliver and perform its obligations under this Agreement; and
(e) Borrower has the power and the authority to make and
perform this Agreement, and this Agreement does, and the Loan Documents when
executed and delivered for value will, constitute the legal, valid and binding
obligations of Borrower and the Borrowing Entities enforceable with accordance
with their respective terms.
Section 4.2 FINANCIAL CONDITION. The financial statements previously
delivered by Borrower to Lender are complete and correct in all material
respects and fairly present the financial condition of Borrower as of the dates
thereof and the results of its/their operations. Other than as disclosed by
those financial statements, Borrower has no direct or contingent obligations or
liabilities which would be material to the financial position of the Borrower or
any material unrealized or anticipated losses from any commitments of the
Borrower. Since the date of such financial statements, there has been no
material adverse change in the business or financial condition of the Borrower
of any Borrowing Entity.
Section 4.3 FULL DISCLOSURE. The financial statements referred to in
Section 4.02 do not, nor does this Agreement, or any written statement furnished
by the Borrower or any Borrowing Entity to the Lender in connection wit the
negotiation of this Agreement, contain any untrue statement of a material fact
or omit a material fact necessary to make the statements contained therein or
herein not misleading. There is no fact which is known or should be known in the
exercise of due diligence which the Borrower or any Borrowing Entity has not
disclosed to
11
the Lender in writing which materially and adversely affects nor,
so far as the Borrower can now foresee, is reasonably likely to prove to
materially and adversely affect the business or financial condition of the
Borrower, or the ability of the Borrower to perform this Agreement.
Section 4.4 LITIGATION. There is no suits or proceedings pending, or to
the knowledge of the Borrower or any Borrowing Entity, threatened before any
court or by or before any governmental authority against or affecting the
Borrower or any Borrowing Entity, which, if adversely determined, would have a
material adverse effect on the business or financial condition of Borrower.
Section 4.5 PAYMENT OF TAXES. The Borrower and each Borrowing Entity
have filed or cause to be filed, or have obtained extensions to file all
federal, state and local tax returns which are required to be filed, and have
paid or caused to be paid, or have reserved on its books amounts sufficient for
the payment of, all taxes as shown on said returns or on any assessment received
by it, to the extent that the taxes have become due, except as otherwise
permitted by the provisions hereof. No tax liens have been filed and the
Borrower has not been notified of, or otherwise ha knowledge of, any claim being
asserted with respect to any such taxes, fees or other charges which could have
a material adverse effect on the business or financial condition of the
Borrower.
Section 4.6 NO ADVERSE RESTRICTIONS OR DEFAULTS. Neither Borrower nor
any Borrowing Entity is a party to any agreement or instrument or subject to any
court order or judgment, governmental decree, charter or other corporate
restriction which is likely to have material adverse affect on its/their
business, properties or assets, operations or condition (financial or
otherwise). Neither Borrower nor any Borrowing Entity is in default in the
performance, observance or fulfillment of any of the material obligations,
covenants or conditions contained in any agreement or instruments to which it/he
is a party or by which the Borrower or any Borrowing Entity or its/his
respective properties may be bound or affected, or under any law, regulation
decree, order or the like.
Section 4.7 INVESTMENT COMPANY ACT. Borrower is not any "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
Section 4.8 AUTHORIZATIONS. All authorizations, consents, approvals and
licenses required under applicable law or regulation for the ownership or
operation of the property owned or operated by the Borrower or any Borrowing
Entity or for the conduct of business in which the Borrower is engaged, have
been duly issued and are in full force and effect, and the Borrower has received
no notice that the Borrower is in default under any order, decree, ruling,
regulation, or other decision or instrument of any governmental authority having
jurisdiction over the Borrower, which deferral which have a material adverse
effect on the Borrower. No approval, consent or authorization of, or filing or
registration with any governmental authority is required with respect to the
execution, delivery or performance of this Agreement.
Section 4.9 USE OF PROCEEDS OF ADVANCES. The proceeds of the Loan shall
be used by the Borrower exclusively for the purposes set forth in this
Agreement. Borrower is not engaged
12
principally, or as one of its important activities, in the business or extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U of the Board of Governors of the Federal Reserve
System), and no part of the proceeds of any Loan hereunder will be used to
purchase or carry any margin stock or to extend credit to others for the purpose
of purchasing or carrying any margin stock. If requested by the Lender, the
Borrower will furnish to the Lender in connection with the Loan hereunder a
statement in conformity with the requirements of Federal Reserve Form U-1
referred to in said Regulation.
Section 4.10 ERISA. The Borrower does not have any Plans under ERISA,
the unfunded liabilities of which upon termination could be held to be a
liability of Borrower by the PBGC.
Section 4.11 FAIR LABOR STANDARDS ACT. The Borrower has complied with,
and will continue to comply with, the provisions of the Fair Labor Standard Act
of 1938, 29 U.S.C. ss. 200, et seq., as amended from time to time (the "FSLA").
Section 4.12 SOLVENCY. The Borrower and each Borrowing Entity is
Solvent, and has capital sufficient to carry on its business. The Borrower and
each Borrowing Entity shall remain Solvent after the consummation of the
transactions contemplated hereby.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower and each Borrowing Entity (if applicable) covenant and
agree that from the Line of Credit Closing Date and until payment in full of the
principal of and interest on each Loan and the termination in full of the
Commitment, unless the Lender shall otherwise consent in writing, the Borrower
and each Borrowing Entitle will:
Section 5.1 LOAN PROCEEDS. Use the proceeds of the Loans only for the
purposes set forth in this Agreement and furnish the Lender with all evidence
that it may reasonably require with respect to such use.
Section 5.2 MAINTENANCE OF BUSINESS AND PROPERTIES. Continue to conduct
and operate its business substantially as conducted and operated during the
present and preceding fiscal year; at all times maintain, preserve and protect
all rights, licenses, privileges, patents, franchises and trade names necessary
in the conduct of its business and preserve all the remainder of its property
used or useful in the conduct of its business and keep the same in good repair,
working order and condition, and from time to time make, or cause to be made,
all needful and proper repairs, replacements, betterments and improvements
thereto so that the business carried on in connection therewith may be conducted
properly and advantageously at all times.
Section 5.3 PAYMENT OF INDEBTEDNESS, TAXES, ETC. Pay all of its
Indebtedness and obligations promptly and in accordance with normal terms and
comply in all material respects with all material agreements, indentures,
mortgages or documents binding on it or affecting its properties or business;
and pay and discharge or cause to be paid and discharged promptly all
13
taxes, assessments and governmental charges or levies imposed upon it or upon
its property or upon any part thereof, before the same shall become in default,
except for real estate taxes which shall be paid prior to December 31 in the
year for which they are assessed, as well as all lawful claims for labor,
materials and supplies or otherwise which, if unpaid, might become a lien upon
such properties or any part thereof, all of the foregoing to be performed in
accordance with the Loan Documents. In addition, Borrower shall be reasonable
for all intangible taxes when the total of all advances including advances for
monies which have been re-borrowed under the RLOC exceed the sum of Thirty Five
Million ($35,000,000.00) Dollars. Borrower, with each advance over
$35,000,000.00, shall pay the intangible tax calculated on such advance to
Lender.
Section 5.4 COMPLIANCE WITH LAWS. Duly observe, conform and comply with
all laws, decisions, judgments, rules, regulations and order of all governmental
authorities relative to the conduct of its business, its properties, and as
assets, except those being contested in good faith by appropriate proceedings
diligently pursued; and obtain, maintain and keep in full force and effect all
governmental licenses, authorizations, consents and permits necessary to the
proper conduct of its business.
Section 5.5 FINANCIAL STATEMENTS, REPORTS, ETC. Borrower shall furnish
or cause to be furnished to Lender (a) within 120 days after the end of each
fiscal year of Borrower, audited financial statements of profit and loss for
each such fiscal year and balance sheets as of the end of each such year of the
Borrower, in reasonable detail, prepared in accordance with GAAP consistently
applied, and certified by independent public accountants acceptable to Lender;
(b) annual operating statements respecting each income producing property,
including, annual leasing and occupancy reports, certified to by the chief
financial officer of Borrower; (c) on the latter of May 1 or 30 days after the
same are filed, a copy of the tax return of Borrower; and (d) reports in form
and content satisfactory to Lender with respect to operating results as
requested from time to time by Lender.
Section 5.6 RIGHT OF ACCESS TO ACCOUNTING RECORDS. No more frequently
than one time per year, allow Lender to audit all of Borrower's books and
accounting records at Lender's expense. Such books and accounting records shall
be maintained at all times at the offices of Borrower or at such other locations
as shall be acceptable to Lender.
Section 5.7 NOTICE OF LITIGATION AND OTHER PROPERTIES. Give prompt
notice in writing to the Lender of the commencement of (a) all material
litigation which, if adversely determined, might materially and adversely affect
the business or financial condition of the Borrower or any Borrowing Entity; and
(b) any citation, order, decree, ruling or decision issued by, or any denial of
any application or petition to, or any proceedings before any governmental
commission, bureau or other administrative agency or public regulatory body
against or affecting the Borrower or any property of the Borrower, or any lapse,
suspension or other termination or modification of any certification, license,
consent or other authorization of any agency or public regulatory body, or any
refusal of any thereof to grant any application therefor or renewal thereof, in
connection with the operation of any business conducted by the Borrower or any
Borrowing Entity, which might have a material and adverse effect upon the
business or financial condition of the Borrower or any Borrowing Entity.
14
Section 5.8 APPRAISALS. Notwithstanding any term or provision hereof or
any Loan Document to the contrary, if at any time and for any reason Lender in
its sole discretion determines that the value of any Land or Buildings financed
with the process of any Loan may have declined or be less than Lender previously
anticipated, Lender shall order, at Borrower's sole cost and expense, a current
appraisal of such Land from an appraiser designated by Lender and inform an
content as required by Lender. Borrower shall cooperate fully with any such
appraiser and provide all such documents and information as such appraiser may
request in connection with such appraiser's performance and preparation of such
appraisal. Borrower's failure to promptly and fully comply with Lender's
requirements under this Section 5.8 shall upon ten (10) days' notice, constitute
an Event of Default.
Section 5.9 YEAR 2000 COMPLIANCE.
(a) Borrower represents and warrants as follows: The
Borrower has (i) initiated a review and assessment of all areas within its and
each of its respective affiliates', subsidiaries' and other related entities
(the "Related Entities") business and operations (including those affected by
suppliers and vendors) that could be adversely affected by the "Year 2000
Problem" (that is, the risk that computer applications used by the Borrower, or
any of its respective Related Entities (or their suppliers and vendors) may be
unable to recognize and perform properly date-sensitive functions involving
certain dates prior to and any date after December 31, 1999), (ii) developed a
plan and timeline for addressing the Year 2000 Problem on a timely basis, and
(iii) to date, implemented that plan in accordance with that timetable. The
Borrower reasonably believes that all computer applications (including those of
its suppliers and vendors) that are material to its, or any of its Related
Entities' business and operations will on a timely basis be able to perform
properly date-sensitive functions for all dates before and after January 1, 2000
(that is, be "Year 2000 compliant"), except to the extent that a failure to do
so could not reasonably be expected to have material adverse effect on the
Borrower's, or any Related Entities' business, operations, creditworthiness or
financial status.
(b) Borrower covenants as follows: The Borrower will
promptly notify the lender in the event the Borrower discovers or determines
that any computer application (including those of its suppliers and vendors)
that is a material to its or any of its respective affiliates', subsidiaries',
or other Related Entities' business and operations will not be Year 2000
compliant on a timely basis, except to the extent that such failure could not
reasonably be expected to have a material adverse effect on the Borrower's, or
any Related Entities' business, operations, creditworthiness or financial
status.
Section 5.10 SINGLE PURPOSE ENTITY. The Mortgage shall contain the
following clauses:
(a) MAINTENANCE OF EXISTENCE.
(i) Each Mortgagor any Related Entity, as such term
is defined in the Loan Agreement, at all times since their formation have been
duly formed and existing and shall preserve and keep in full force and effect
their existence as a Single Purpose Entity, as such term is defined in the Loan
Agreement.
15
(ii) Each Mortgagor and any Related Entity, at all
times since their organization, have complied and will continue to comply with
the provisions of its certificate of incorporation and by-laws or articles of
organization, as applicable, and the laws of its jurisdiction of organization
relating to corporations.
(iii) All customary formalities regarding the
corporate existence of each Mortgagor and any Related Entity have been observed
at all times since its formation and will continue to be observed.
(iv) Each Mortgagor and Related Entity have, at all
times, accurately maintained and will continue to accurately maintain their
respective financial statements, accounting records and other corporate
documents separate from those of each other or of any other Person. Each
Mortgagor and Related Entity have not, at any time since their formation,
commingled and will not commingle, their respective assets with those of any
other persons. Each Mortgagor and Related Entity have, at all times since their
formation, accurately maintained, and will continue to accurately maintain,
their respective bank accounts, payroll and separate books of account.
(v) Each Mortgagor and Related Entity have, at all
times, paid, and will continue to pay, their own liabilities from their own
separate assets.
(vi) Each Mortgagor and Related Entity have been,
at all times, and will continue to be, adequately capitalized in light of the
nature of their respective businesses.
(vii) Each Mortgagor (a) does not own and will not
own any encumbered asset other than its present interest in the Mortgaged
Property described in Exhibits attached hereto; (b) is not engaged and will not
engage in any business other than the ownership, management and operation of the
Mortgaged Property; (c) will not enter into any contract or agreement with any
affiliate of any Mortgagor, except upon terms and conditions that are
intrinsically fair and substantially similar to those that would be available on
an arm's length basis with third parties other than an Affiliate; (d) has not
incurred and will not incur any debt, secured or unsecured, direct or contingent
(including guaranteeing any obligation) other than the Loan; and (e) has not
made and will not make any loans on advances to any Person [including
Affiliate].
(viii) Mortgagors will not change its name or
county of principal place of business.
(ix) Related Entity does not have and will not have
any subsidiaries or partnership or membership interests in any Person other than
in Borrower or the Other Mortgagors.
(x) Each Mortgagor will preserve and maintain its
existence as a corporation and all material rights, privileges, trade names and
franchises.
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(xi) No Mortgagor or Related Entity will merge or
consolidate with, or sell all or substantially all of its respective assets to
any person, or liquidate, wind up or dissolve itself (or suffer any liquidation,
winding up or dissolution).
(xii) No Mortgagor or Related Entity has, at any
time since its formation, assumed or guaranteed, and will assume or guarantee,
the liabilities of its shareholders or any predecessor corporation, each as
applicable, any affiliates, or any other Person. No Mortgagor or Related Entity
has, at any time since its formation, acquired, and will not acquire,
obligations or securities of its shareholders, any Affiliates or any other
Person. No Mortgagor or Related Entity has, at any time since its formation,
made, and will not make loans to its shareholders, any Affiliates or any other
Person. No Mortgagor or Related Entity has any known contingent liabilities nor
does either have any material financial liabilities under any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which either is a party or by which either is otherwise bound, other than
obligations incurred in the ordinary course of the operation of the Mortgaged
Property and other than obligations under the Loan Documents.
(xiii) No Mortgagor or Related Entity has, at any
time since its formation entered into and was not a party to, and will not enter
into or be a party to any transaction with its shareholders or any Affiliates
thereof except in the ordinary course of business on terms which are no less
favorable than would be obtained in a comparable arm's length transaction with
an unrelated third party.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower covenants and agrees that from the Line of Credit Closing
Date and until payment in full of the principal of and interests on each Loan
and the termination in full of the Commitment, unless the Lender shall otherwise
consent in writing, the Borrower will not:
Section 6.1 CHANGE IN MANAGEMENT OF BORROWER AND OWNERSHIP OF ANY
BORROWING ENTITY. For so long as any Loan is outstanding under this Agreement,
Xxxxx Xxxxxxx or Xxxxx Xxxxxx ("Xxxxxxx" and "Xxxxxx") shall continue to control
the operations of the Borrower, including the day to day affairs. This
continuity in management is a material inducement to Lender to close on this
Agreement as it is relying on the experience and expertise of Xxxxxxx and Valero
in the Borrower's principal place activities. Likewise, there shall be no change
in the ownership or control of any Borrowing Entity that owns property which
remains encumbered by the lien of Lender's Mortgage during the term of this
Agreement.
Section 6.2 LIMITATIONS ON SALE, ETC. Without Lender's prior written
consent, no Mortgagor shall sell, convey, mortgage or encumber (or contract to
sell, convey or transfer in exchange for installment payments) any Land or
Building encumbered by the lien of the Mortgage securing payment of the Note, or
any interest therein (legal or beneficial), or be divested of title or any
interest therein (legal or beneficial) in any manner or way, whether voluntary
or involuntary, by operation or law or otherwise.
17
Section 6.3 LIMITATION ON FINANCING. Permit any secondary financing or
any other encumbrance of any nature whatsoever to be placed, levied or otherwise
imposed on any of the security or collateral for any Loan.
Section 6.4 NAME. Change its name without Lender's prior written
consent, not to be unreasonably withheld or delayed.
ARTICLE VII
EVENTS OF DEFAULT
Section 7.1 EVENTS OF DEFAULT. If any one of the following "Events of
Default" shall occur:
(a) Any representation or warranty made by the Borrower or
any Affiliated Entity in any Loan Document or in any certificate or report
furnished by the Borrower or any Affiliated Entity hereunder shall prove to have
been false or misleading in any material respect as of the date on which same
was made; or
(b) The Borrower or any Affiliated Entity shall fail to
pay (i) any payment of interest under the Note evidencing the Loan made
hereunder within 10 days after the due date thereof, or any payment of principal
on the due date thereof; and (ii) any other sums to be paid by Borrower
hereunder within 10 days after the due date; or
(c) The Borrower or any Affiliated Entity shall default in
the performance of any agreement, covenant, condition, agreement contained
herein (other than the payment of money) and such default shall not be curable
or shall consist of a violation of the provisions of Sections 6.2 or 6.3 hereof,
in which case no grace period shall be applicable, or if curable and relating to
defaults other than a failure to observe the provisions of Sections 6.2 or 6.3
hereof, shall continue beyond any grace period specifically applicable to such
default, and if no grace period is specifically applicable, for a period of 10
days in the event of a violation of the provisions of Section 6.1 hereof,
otherwise for 30 days after written notice thereof from Lender to Borrower
(unless such default, if curable, requires work to be performed, acts to be done
or conditions to be remedied which by their nature cannot be performed, done or
remedied, as the case may be, within such 30 days period, in which case Borrower
shall have an additional time to cure, and Borrower shall diligently and
continuously process the same to completion; provided, however, that in no event
shall such cure period in its entirety exceed 60 days); or
(d) Borrower or any Affiliated Entity shall file, or there
shall be filed against such Entity, a petition in bankruptcy or insolvency or a
petition or answer seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the bankruptcy
laws of the United States or under any other applicable Federal, state or other
statute or law (hereinafter collectively or individually Federal, state or other
statute or law (hereinafter collectively or individually referred to as
"Insolvency Proceedings"), or a receiver, trustee or liquidator shall have been
appointed with respect to any such Entity. Notwithstanding the foregoing, in the
event of an involuntary Proceeding against any such Person, such Entity
18
shall have a period of ninety (90) days within which to cause such involuntary
Insolvency Proceeding to be vacated, dismissed, discharged or bonded pending
appeal, in which case such involuntary Insolvency Proceeding shall not be an
Event of Default hereunder; or
(e) The financial condition or operations of Borrower or
any Affiliated Entity shall have changed adversely in any material respect from
its condition as heretofore represented to Lender; or
(f) Final judgment for the payment of money in an amount
in excess of $200,000.00 shall be rendered against Borrower and in excess of
$50,000.00 for any Affiliated entity and the same shall not have been
discharged, bonded or stayed within thirty (30) days thereof; or
(g) An "Event of Default" shall occur under the terms of
any of the Loan Documents.
THEREUPON, in the case of any such event other than an event described
in subsection (d) of this Section 7.1, the Lender may, by written notice to the
Borrower, at the Lender's option; (A) immediately terminate the Commitment of
the Lender hereunder, and/or (B) immediately declare the principal of, and
interest accrued on, all notes evidencing outstanding Loans forthwith due and
payable, whereupon the same shall become forthwith due and payable, both as to
principal and interest, without presentment, demand, protest, or other notice of
any kind, all of which are hereby expressly waived, anything contained herein or
in any note to the contrary notwithstanding.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 NO WAIVER; REMEDIES CUMULATIVE. No failure on the part of
the Lender to exercise and no delay in exercising any right granted hereunder or
in any Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and are not exclusive of any remedies provided by law.
Section 8.2 SURVIVAL OF REPRESENTATIONS. All representations and
warranties made herein shall survive the making of Loans hereunder and the
delivery of Loan Documents, and shall continue in full force and effect so long
as any Loan is outstanding and unpaid and the Commitment has not been
terminated.
Section 8.3 NOTICES. Any notice or other communication hereunder to any
party hereto shall be by telegram, telex or registered or certified mail and
shall be deemed to have been given or made when telegraphed, telexed or
deposited in the mails, postage prepaid, addressed to the party at its address
specified in the introduction to this Agreement (or at any other address that
the party may hereafter specify to the other parties in writing), except that
notices by the Borrower under Section 2.02 hereof shall not be effective until
received.
19
Section 8.4 CONSTRUCTION. This Agreement and each of the Loan Documents
shall be deemed contracts made under the law of the State of Florida and shall
be governed by and construed in accordance with the law of said state, without
regard to principles of conflicts of law.
Section 8.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the Borrower, Affiliated Entities and the
Lender, and their respective successors and assigns; provided, that Borrower may
not assign any of their respective rights hereunder without the prior written
consent of the Lender, which Lender may withhold in its sole and absolute
discretion.
Section 8.6 JURISDICTION; SERVICE OF PROCESS.
(a) Any suit, action or proceeding against the Borrower or
any Guarantor with respect to this Agreement, or any Loan Document, or any
judgment entered by any court in respect of any thereof may be brought in the
courts of the State of Florida or in the U.S. District Court for the Southern
District of Florida as the Lender (in its sole discretion) may elect, and the
Borrower hereby accepts the nonexclusive jurisdiction of those courts for the
purpose of any suit, action or proceeding.
(b) In addition, the Borrower and Affiliated Entities
hereby irrevocably waive, to the fullest extent permitted by law, any objection
which it or they may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any Loan
Document, or any judgment entered by any court in respect of any claim that any
suit, action or proceeding brought in the State of Florida has been brought in
an inconvenient forum.
Section 8.7 PAYMENT ON OTHER THAN A BUSINESS DAY. Should any payment
required by this Agreement or under any Loan Document become due and payable
other than on a business day, the maturity thereof shall be extended to the next
succeeding business day, and in the case of principal, with interest thereon at
the rate specified in this Agreement.
Section 8.8 HEADINGS. The headings and the Tables of Contents of this
Agreement are for convenience only and are not to affect the construction of or
to be taken into account in interpreting the substance of this Agreement.
Section 8.9 SEVERABILITY. In the event that any one or more of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
Section 8.10 COURSE OF DEALING; AMENDMENT; SUPPLEMENTAL AGREEMENTS. No
course of dealing among the Lender the Borrower and any Affiliated Entity shall
be effective to amend, modify or change any provision of this Agreement. This
Agreement may not be amended, modified, or changed in any respect except by an
agreement in writing signed by the Lender, the
20
Borrower and any Affiliated Entity. The Lender and the Borrower may, subject to
the provisions to this Section 8.10, from time to time, enter into written
agreements supplemental hereto for the purpose of adding any provisions to this
Agreement or changing in any manner the rights and obligations of the parties
hereto. Any such supplemental agreement in writing shall be binding upon said
parties.
Section 8.11 COMMITMENT LETTER. All obligations and requirements of the
Commitment Letter are incorporated herein and obligations of the parties hereto
perform same shall survive the execution of this Agreement and the closing of
Loans and shall continue in full force and effect until all Loans are paid in
full. Whenever possible, the provisions of the Commitment Letter shall be deemed
supplemental to and no in derogation of this Agreement and any Loan Documents,
and in the event of conflict, the terms of this Agreement and the other Loan
Documents shall control.
Section 8.12 EXPENSES. Borrower agrees, on demand, to pay, irrespective
of whether a Loan is ultimately closed, all fees, expenses, taxes, or other
charges and any out-of-pocket expenses that may be incurred by Lender in
connection with the making and closing of the Loan and the transactions
contemplated thereby or incidental thereto including, without limitation, the
fees and disbursements (including travel expenses, photocopying charges,
overtime word processing and secretarial charges, courier fees and long distance
telephone charges) for Lender's counsel, premiums for title insurance and
recording fees, abstracting charges, documentary stamps and all intangible and
recording taxes with respect to the Loan Documents (including any and all
promissory notes and any other evidence of indebtedness), appraisal fees, survey
costs, and all other costs customarily paid by borrowers in connection with
similar commercial loans. In the event that Lender is made or becomes a party to
any litigation arising out of this Agreement or any of the Loan Documents,
Borrower agrees to pay Lender's court costs and attorneys' fees in connection
with such litigation through and including the cost of any appeals. The
obligations of Borrower under this Section 8.12 shall survive the expiration,
cancellation or termination of this Agreement and the repayment of the Loans.
Section 8.13 WAVIER OF JURY TRIAL. THE LENDER AND THE BORROWER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT AND NAY AGREEMENT CONTEMPLATED TO BE
EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION
IS A MATERIAL INDUCEMENT FOR THE LENDER ENTERING INTO THIS AGREEMENT.
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
EQUITY ONE, INC., a Maryland corporation
By:_________________________________
CITY NATIONAL BANK OF FLORIDA
By:_________________________________
Signed, sealed and delivered
in the presence of: EQUITY ONE, INC., a Maryland corporation
---------------------------------
Name:
By:_________________________________
Xxxxx Xxxxxxx, President
---------------------------------
Name
00
XXXXX XX XXXXXXX
XXXXXX XX XXXXX-XXXX
The foregoing document was acknowledged before me this ___ day of
January, 1999, by XXXXX XXXXXXX as President of EQUITY ONE, INC., a Maryland
corporation, on behalf of the corporation. He is personally known to me or has
produced _____________________ as identification.
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Name:
Notary Public, State of Florida
My commission expires:
