Construction and Term
Loan Agreement
Among
REGIONS BANK
AND
MOUNT VINTAGE PLANTATION GOLF CLUB, LLC,
ET AL.
Dated as of
February 24, 1999
CONSTRUCTION AND TERM LOAN AGREEMENT
------------------------------------
THIS CONSTRUCTION AND TERM LOAN AGREEMENT is made and entered into as of
the 24th day of February, 1999, among REGIONS BANK, MOUNT VINTAGE PLANTATION
GOLF CLUB, LLC, a South Carolina limited liability company, XXXXXX X. XXXXXXXXX
and XXXXXXXX XXXXXX. In consideration of the mutual promises, covenants and
agreements hereinafter set forth, the parties agree as follows:
ARTICLE I
PRINCIPLES OF CONSTRUCTION
Section 1.01. Definitions. For the purposes of this Agreement, the
following terms shall have the meanings hereinafter set forth, unless the
context clearly requires otherwise:
"ARCHITECTURE CONTRACT" means the architect's contract relating to the
Project.
"AGREEMENT" means this Construction and Term Loan Agreement as
originally executed and as from time to time supplemented, modified or amended
pursuant to the applicable provisions hereof.
"BUSINESS DAY" means a day on which banks are not authorized or required
to be closed in Aiken, South Carolina.
"BORROWER" means Mount Vintage Plantation Golf Club, LLC, a South
Carolina limited liability company.
"CAPITALIZED LEASE OBLIGATION" means that portion of any obligation of a
Person as lessee under a lease which at the time would be required to be
capitalized on the balance sheet of such lessee in accordance with GAAP.
"CLOSING" means the closing provided for in Article III.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL" means the Project; and all that property, real or personal,
tangible or intangible, owned by Borrower and used or to be used in connection
with the Project or otherwise subject to the lien or security interest of the
Mortgages. The parties specifically contemplate future and continued additions
of property to the Collateral.
"COMMITMENT LETTER" means that letter from Lender to Borrower dated
November 13, 1998 concerning the proposed terms of the Loan.
"CONSTRUCTION CONTRACT" means and includes the contract between Borrower
and the general contractor for the Project ("General Contractor") and any
subcontracts with subcontractors, materialmen, laborers, or any other person or
entity for performance of work on the Project or the delivery of materials to
the Project.
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"CONSTRUCTION WORK" means the work to be done by contractors and
subcontractors to construct the Improvements.
"DEBT SERVICE COVERAGE RATIO" shall mean, with respect to Borrower for
any period, the ratio of (a) the sum of Net Income plus depreciation,
amortization, and interest expense of Borrower and its subsidiaries, on a
consolidated basis, for such period to (b) the sum of all payments required to
be made on Funded Debt for such period.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA AFFILIATE" shall mean any "affiliate" of Borrower within the
meaning of Sections 414 of the Code.
"EVENT OF DEFAULT" shall have the meaning ascribed to such term in
Section 7.01 of this Agreement.
"FUNDED DEBT" shall mean, with respect to Borrower and its subsidiaries,
all Indebtedness issued, incurred, assumed, or guaranteed by Borrower and its
subsidiaries or for the payment of which the Borrower or any of its subsidiaries
is otherwise liable, directly or indirectly, whether or not such Indebtedness
now exist or shall hereafter be created, and shall include all Capitalized Lease
Obligations or Borrower.
"GAAP" means those principles of accounting in effect on the date hereof
set forth in pronouncements of the Financial Accounting Standards Board and, to
the extent not inconsistent therewith, the American Institute of Certified
Public Accountants, applied by Borrower on a consistent basis.
"GUARANTORS" means Xxxxxx X. Xxxxxxxxx and Xxxxxxxx Xxxxxx.
"GUARANTY AGREEMENTS" means those Guaranty Agreements of even date
whereby the Guarantors jointly and severally guaranty the Obligations of
Borrower, in accordance with the terms and conditions contained therein.
"IMPROVEMENTS" means all buildings, walks, drives, structures and
landscaping schemes shown on the Plans and Specifications.
"INDEBTEDNESS" means, with respect to any Person, (a) all items, except
items of shareholders', member's and partners' equity or capital stock or
surplus or general contingency or deferred tax reserves, which in accordance
with GAAP would be included in determining total liabilities as shown on the
liability side of a balance sheet of such Person, (b) all direct or indirect
obligations secured by any Lien to which any property or asset owned by such
Person is subject, whether or not the obligation secured thereby shall have been
assumed, (c) to the extent not otherwise included, all Capitalized Lease
Obligations of such Person, and (d) all reimbursement obligations with respect
to outstanding letters of credit.
"LAND" means that 252.6 acres of real estate located in Aiken County,
South Carolina, as more particularly described on Exhibit "A" attached hereto.
"LENDER" means Regions Bank.
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"LIEN" means, with respect to any property, any mortgage, lien, pledge,
negative pledge, assignment, charge, security interest, title retention
agreement, levy, execution, seizure, attachment, garnishment, or other
encumbrance of any kind in respect of such property, whether or not xxxxxx,
vested, or perfected.
"LOAN" means the amounts advanced by Lender to Borrower in accordance
with the terms hereof, and evidenced by the Note, which term shall refer to the
Loan during construction and after conversion to term loan status pursuant to
section 3.04.
"LOAN DOCUMENTS" means, without limitation, this Agreement, the Note,
the Mortgages, all legal opinions or reliance letters issued by counsel to
Borrower in connection herewith, all requests for advance, and all other
documents, instruments, certificates, and agreements executed or delivered in
connection with or contemplated by this Agreement.
"MORTGAGES" means any one or more of those documents of even date
herewith, all as originally executed and as may from time to time be
supplemented, modified or amended pursuant to the terms thereof or hereof,
granting Lender an interest in or perfecting Lender's interest in the Collateral
to secure Borrower's Obligations to Lender, including but not limited to the
mortgage, assignment of contract documents, UCC-1 financing statements, and any
fixture filings. In addition the term Mortgages shall include any mortgages,
security deeds, financing statements, fixture filings, or deeds of trust
executed by Borrower to Lender in the future for the purpose of further securing
the Note.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"NET INCOME" shall mean, as applied to the Borrower and its
subsidiaries, taken on a consolidated basis for any fiscal period, the aggregate
amount of net income (or net loss) of the Borrower and its subsidiaries, after
taxes, for such period as determined in accordance with GAAP.
"NOTE" means the Promissory Note.
"OBLIGATIONS" means all loans, debts, liabilities, obligations or other
amounts owing by Borrower to Lender, whether related to the loan made under this
Agreement or otherwise, (whether or not evidenced by any note or other
instrument and whether or not for the payment of money), direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter arising,
including, without limitation, all interest, fees, charges, expenses, attorneys'
fees and accountants' fees chargeable by Lender to Borrower.
"PERMITTED ENCUMBRANCES" means any of the following: (1) liens in favor
of Lender; (2) liens arising by operation of law to secure taxes not yet due and
payable, and (3) those encumbrances set forth in that title insurance commitment
issued and accepted by Lender in connection with the Loan committing to insure
title to the Project.
"PERSON" means any natural person, corporation, firm, association,
government, governmental agency or any other entity and whether acting in an
individual, fiduciary or other capacity.
"PLAN" shall mean an employee benefit plan within the meaning of Section
3(3) of ERISA or any other employee benefit plan maintained for employees of any
Person or any affiliate of such Person.
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"PLANS AND SPECIFICATIONS" means those plans and specifications for
construction of the improvements to the Project accepted and approved by Lender.
"PROJECT" means that golf course and clubhouse to be known as "Mount
Vintage Plantation Golf Club" to be constructed in accordance with the Plans and
Specifications on the Land and all equipment, fixtures, and general intangibles
relating thereto.
"PROJECT DOCUMENTS" means 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.
"PROMISSORY NOTE" means the $3,300,000.00 promissory note, as described
in Article II hereof, evidencing Borrower's Indebtedness to Lender as the same
may hereafter be amended, modified or supplemented.
"REPORTABLE EVENT" shall have the meaning set forth in Title IV of
ERISA.
"SOLVENT" means, as to any Person, that such Person has capital
sufficient to carry on its business and transactions in which it is about to
engage and is able to pay its debts as they mature and owns property having a
value, both at fair valuation and at present fair salable value, greater than
the amount required to pay its debts.
Section 1.02. Usage. All pronouns and defined terms appearing herein
shall be deemed to include both the singular and plural, and to refer to all
genders, unless the context clearly requires otherwise. The words "hereby",
"herein", "hereof", "hereunder" and words of similar import shall refer to this
Agreement in its entirety and not to any particular provision or subdivision
hereof.
Section 1.03. Headings. All references to designated "Articles" or
"Sections" are to the Articles and Sections of this Agreement as originally
executed. All headings are provided for convenience only and are not intended to
limit, expand or otherwise modify any provision hereof.
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ARTICLE II
THE LOAN
Section 2.01. Loan. Subject to and in accordance with the terms and
conditions of this Agreement, Lender shall make a Loan to Borrower as
hereinafter set forth.
(a) The aggregate principal amount of the Loan shall be up to
$3,300,000.00.
(b) The proceeds of the Loan shall be used to construct the
Improvements to the Project.
(c) The obligation of Borrower to Lender with respect to the
Loan shall be evidenced by a promissory note in the
original principal amount of $3,300,000.00, of even date
herewith to be governed by the terms and conditions
thereof to the extent they are not inconsistent with the
terms and conditions hereof.
(d) The Loan together with the Obligations shall be secured by
a first lien and blanket security interest in the
Collateral pursuant to the Mortgages.
Section 2.02. Origination Fee. Borrower shall pay Lender at the closing
of the Loan an origination fee of $33,000.00.
Section 2.03. Cross-Default. A default by Borrower under this Agreement
shall constitute a default by Borrower under all other loan agreements, loan
documents and promissory notes, now existing or hereafter made, in favor of
Lender. A default under any other loan agreement, loan document or promissory
note, now existing or hereafter made, by Borrower in favor of Lender shall
constitute a default under this Agreement.
Section 2.04. Cross-Collateralization. The Project and the Collateral
described in this Agreement shall secure all indebtedness and obligations of
Borrower, now existing or hereafter made, in favor of Lender. All collateral
securing any other indebtedness or obligations of Borrower, now existing or
hereafter made, in favor of Lender shall secure the Loan and Obligations under
this Agreement.
Section 2.05. Conversion to Term Loan Status. Upon the satisfaction of
the conditions contained in Section 3.04, the Loan shall convert to term loan
status, and the Loan Indebtedness shall begin amortizing in accordance with the
Note.
Section 2.06. Guaranties. The Guarantors shall jointly and severally
guaranty the Obligations of Borrower to Lender.
Section 2.07. Certificate of Deposit. The Loan shall be further secured
by a Certificate of Deposit issued by Lender in the original principal amount of
$400,000.00 and all accrued interest thereon, to be held by Lender in accordance
with a pledge agreement.
Section 2.08. Escrow Account. Mount Vintage Development Company, LLC, a
South Carolina limited liability company (the "Developer"), is the developer of
residential lots (the "Development") on tracts of land owned by Developer
adjacent to the Project containing approximately 347 acres. The
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Developer directly benefits from the making of the Loan to Borrower and has
agreed, in a separate agreement with Lender, to deposit $5,000.00 from each lot
sale in the Development into an escrow account with Lender (together with all
accrued interest thereon, the "Escrow Account"). Developer shall maintain the
Escrow Account with Lender as additional security and collateral for the Loan to
Borrower. When Borrower's Debt Service Coverage Ratio equals or exceeds 1.15:1
for any fiscal year of Borrower, Lender shall release the Escrow Account to
Developer if no Event of Default has occurred.
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ARTICLE III
CLOSING AND FUNDING
Section 3.01. Time and Place. The Closing of the Loan shall be held on
February 24, 1999, at such place and time as may be agreed upon by Borrower and
Lender.
Section 3.02. Closing of the Loan. On the date of Closing, Lender shall
close the Loan, subject to the following conditions precedent; provided,
however, that Lender may waive any of the foregoing requirements until the
initial funding of the Loan or anytime thereafter:
(a) Borrower shall have taken all action and have caused to
be duly executed in its behalf all of the documents,
agreements, instruments, certificates, authorizations or
other writings required or contemplated by the terms of
this Agreement or the Commitment Letter or otherwise
reasonably requested by Lender, all of which shall be in
form and substance as required by Lender.
(b) Counsel to Borrower shall deliver to Lender a legal
opinion in form and substance satisfactory to Lender.
(c) Borrower shall be in compliance with all terms,
conditions and covenants hereof and its representations
and warranties shall be true, accurate and complete as
of Closing.
(d) Borrower shall have caused to be delivered to Lender (i)
such documentary evidence as Lender deems satisfactory
that, except for Permitted Encumbrances, Borrower has
free and clear title to all of the Collateral and that
Lender has duly perfected first priority liens and
security interests thereon and therein; (ii) documentary
evidence satisfactory to Lender that item (c) of this
Section is satisfied; and (iii) evidence of Borrower's
compliance with Section 6.04.
(e) Borrower shall deliver to Lender an ALTA Lender's Policy
of Title Insurance in an aggregate principal amount
equal to the principal amount of the Note, issued by a
title insurance company acceptable to Lender, naming the
Mortgage as a valid first lien against the Land,
including insurance against mechanics' and materialmen's
liens, and containing no exceptions other than Permitted
Encumbrances. Said policy shall contain such
endorsements as Lender may require.
(f) Borrower shall have caused to be delivered to Lender the
Plans and Specifications, Architecture Contract,
Construction Contract, and building permits relating to
the construction of the Project, all in a form
reasonably satisfactory to Lender.
(g) Borrower shall have caused to be delivered to Lender a
surveyor's report and plat of survey by a registered
land surveyor (i) prepared in accordance with "Minimum
Standard Detail Requirements for ALTA/ACSM Land Title
Surveys", jointly adopted by ALTA and ACSM in 1992, and
certified as such, showing all improvements located on
the Land and all plattable Permitted Encumbrances, and
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certifying that there are no encroachments or violations
of building setback lines, easements, or restrictive
covenants, other than Permitted Encumbrances.
(h) Borrower shall have invested equity into the costs of
constructing the Improvements to the Project in an
amount equal to or exceeding $3,300,000.00.
(i) Lender shall have received an appraisal, in form and
substance acceptable to Lender, indicating that the
Project, as completed, will have a value acceptable to
Lender.
(j) Lender shall have received a report from a qualified
consultant acceptable to Lender with respect to an
investigation and audit of the Land, showing that the
Land is environmentally acceptable to Lender.
(k) Lender shall have received all documents Lender may
reasonably request relating to the existence of
Borrower, the authority for and the validity of this
Agreement and the other Loan Documents, the authority
and incumbency of the officer executing this Agreement
and the other Loan Documents and any other matters
relevant hereto, all in form and substance satisfactory
to Lender. Such documentation shall include, without
limitation, the articles of organization of Borrower, as
amended, modified or supplemented to the closing date,
certified to be true, correct and complete by the
Secretary of State of South Carolina of a date not more
than twenty days prior to the closing date, together
with a certificate of good standing as to Borrower from
the Secretary of State of South Carolina, to be dated
not more than twenty days prior to the closing date, as
well as the operating agreement of Borrower, as amended,
modified or supplemented to the Closing Date, certified
to be true, correct and complete by the managers of
Borrower as of a date not more than twenty days prior to
the closing date.
(l) Lender shall have received the fees and expenses
required to be paid by Borrower accrued through the
Closing Date.
(m) No Event of Default shall have occurred.
(n) Lender shall have received a copy of the Construction
Contract, Architecture Contract and the Plans and
Specifications, all in a form and content satisfactory
to Lender.
(o) Borrower shall have collaterally assigned to Lender the
Plans and Specifications, Construction Contract,
Architecture Contract and all other Project Documents in
a form satisfactory to Lender, and the other parties
thereto shall have consented to such assignments.
(p) Borrower shall have provided to Lender a payment and
performance bond in an amount equal to 100% of the
amount of the Construction Contract, as well as
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.
(q) The manager of the Project shall have subordinated its
management agreement to the Mortgages and the Loan
Documents, in a form satisfactory to Lender.
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(r) 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 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
materialmen. Lender shall have the right to communicate
with any person to verify the facts disclosed by the
list or by any draw request, or for any other purpose.
(s) Lender shall have received and accepted a compete 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.
(t) 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 draw.
(u) Borrower shall have furnished to Lender, at Borrower's
expense, a soil report for the Land in form and
substance satisfactory to Lender, prepared by a
registered engineer satisfactory to Lender stating that
the Land is free from soil or other geological
conditions that would proclude its use or development as
contemplated without extra expense for precautionary,
corrective or remedial measures.
(v) 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.
Failure by Lender to require compliance in whole or in part with
any of the conditions precedent to initial funding described above shall not
operate as a waiver or forfeiture thereof unless expressly waived or forfeited
by Lender in writing; and in the absence of such written waiver or forfeiture
Lender may insist upon compliance at any future time during the term of this
Agreement.
Section 3.03. Further Funding of the Loan. Thirty (30) days following
Closing, Borrower may, not more than once a month during the construction
period, request draws of any portion of the remaining principal balance
available for borrowing under the Loan pursuant and subject to the following
terms and conditions:
(a) Draws shall only be made for completed work and
improvements in an amount equal to the actual cost of in
place labor, materials and equipment, less a 10%
retainage. Requests for draws must be submitted in
writing to Lender at least one week before payment is
desired, and if requested by Lender, such requests must
be submitted on Lender's standard form draw request. If
requested by Lender, Borrower shall submit invoices
covering the services and materials for which funds are
being requested.
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(b) Receipt of written certification on a standard AIA
request form or on another form approved by Lender from
the Project's architect that the Construction Work for
which payment is requested was completed in accordance
with the Plans and Specifications, that development is
proceeding satisfactorily and the undisbursed amount of
the Loan will be sufficient to complete the Project.
(c) Receipt of waivers of lien from all contractors,
subcontractors and material suppliers who have furnished
labor and material for the Project, or who have issued a
notice to owner as contemplated by the applicable lien
statutes.
(d) Receipt of written certification from Borrower that all
funds previously disbursed by Lender have been applied
directly to costs of construction of the Improvements,
and that the loan proceeds remaining to be disbursed are
sufficient to cover the remaining unpaid costs of
construction.
(e) Receipt of endorsements to that title insurance policy
issued pursuant hereto affirmatively insuring Lender's
first priority security for any draw against, without
limitation, the claims of any intervening liens to
include materialmen, suppliers, laborers, architects,
surveyors, engineers, etc.
(f) Proof of insurance pursuant to Section 6.04.
(g) All conditions in Section 3.02 have been satisfied.
(h) Borrower shall have filed and posted a notice of
commencement as contemplated by applicable law
(i) 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.
(j) An inspector, acceptable to Lender, shall have provided
a satisfactory report of the progress of construction of
the Project to Lender, at Borrower's expense.
Section 3.04. Final Funding of Loan. On completion of construction, and
as a condition of final disbursement of the Loan and the retainage and
conversion to term loan status, Borrower shall furnish Lender with the
following:
(a) Certification to Lender by the Project's architect that
all of the Construction Work was performed to its
satisfaction and in accordance with the Plans and
Specifications.
(b) Receipt by Lender of a satisfactory "as-built" plat of
survey prepared in accordance with "Minimum Standard
Detail Requirements for ALTA/ACSM
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Land Title Surveys", jointly adopted by ALTA and ACSM in
1992, and certified as such, reflecting the location of
the Improvements in accordance with the Plans and
Specifications, showing all plattable Permitted
Encumbrances, and certifying that there are no
encroachments or violations of building setback lines,
easements, or restrictive covenants.
(c) Satisfactory evidence that all necessary certificates
required to be obtained from any board, agency, or
department, governmental or otherwise, have been
obtained.
(d) Final affidavits of no lien from Borrower and the
General Contractor, and final waivers of lien from all
contractors, subcontractors and material suppliers who
have furnished labor and material for the Project, or
who have issued a notice to owner as contemplated by the
applicable lien statutes.
(e) Original permanent hazard insurance policy and other
insurance required under Section 6.04.
(f) Certificate of occupancy and copies of all other
certificates, permits or authorizations necessary to
operate the Project.
(g) An endorsement to the title insurance policy issued
under Section 3.02 affirmatively insuring Lender' first
priority lien against the Project against, without
limitation, the claims of any intervening liens to
include materialmen, suppliers, laborers, architects,
surveyors, engineers, etc.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
As an inducement to Lender to enter into this Agreement and to make
available the credit provided for herein, Borrower represents and warrants to
Lender as follows:
Section 4.01. Organization and Qualification. Borrower was duly
organized as a limited liability company and is existing and in good standing
under the laws the State of South Carolina. Borrower is authorized to do
business in all other jurisdictions in which its ownership of property or
conduct of business legally requires such authorization, or where the failure to
be so authorized could materially and adversely affect its business. Borrower
has the full power, authority and legal right to own its properties and assets.
Section 4.02. Capacity. Borrower has the full power, authority and legal
right to execute and deliver, and to perform and observe, the provisions of this
Agreement, the Mortgages, the Note and all other Loan Documents and to carry out
the transactions contemplated hereby and thereby.
Section 4.03. Authority and Enforceability. The execution, delivery and
performance by Borrower of this Agreement, the Mortgages, the Note and all other
Loan Documents have been duly authorized by all
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necessary action, and do not and will not require any registration with, consent
or approval of, notice to, or any action by, any Person. Subject to bankruptcy
and insolvency laws and general principles of equity, this Agreement, the
Mortgages, the Note and all other Loan Documents constitute, legal, valid and
binding obligations of Borrower. Subject to bankruptcy and insolvency laws and
general principles of equity, the Mortgages create and constitute a valid and
perfected first priority lien and security interest in and to the Collateral
enforceable in accordance with their terms against all third parties and secures
the payment of all Obligations.
Section 4.04. Compliance with Other Instruments. The execution and
delivery of this Agreement, the Note, the Mortgages, and all other Loan
Documents and compliance with their terms, will not: result in the imposition of
any lien, charge or encumbrance, except as created by the Mortgages, upon any
properties of Borrower; nor result in a breach of any of the terms or conditions
of, nor constitute a default (with due notice or lapse of time or both) under
any indenture, agreement, lease, order, judgment or instrument under which
Borrower is a party or by which Borrower or its property may be bound or
affected, or under the charter documents of Borrower, nor result in an
occurrence of an event for which any holder or holders of Indebtedness may
declare the same due and payable; nor violate any provision of applicable law.
Section 4.05. Utilities and Access. All utility services necessary for
the construction of the Improvements and their operation as intended are
available at the boundaries of the Land, including, but not limited to, water
supply, storm and sanitary sewer, gas, electric and telephone facilities, and
further, that the Land has immediate access to a public right-of-way or an
unconditional right of access across private land which is appurtenant to the
Land, it being understood that rights of access to the Land are included in the
Mortgage, and Borrower warrants that Lender has first lien rights in and to any
access across private land.
Section 4.06. Non-Commencement of Construction. No construction has
commenced on the Land; no labor has yet been furnished in connection with the
proposed construction; no materials have been delivered to the Project; site
preparation has not yet begun; and that neither the General Contractor nor any
supplier or subcontractor will be permitted to deliver any materials to the
Project or perform any work thereon until the Mortgages are properly filed of
record.
Section 4.07. Financial Information. All financial information
concerning Borrower or its assets or properties provided to Lender by Borrower
or its accountants, attorneys, or other representatives, (including without
limitation all certifications with respect to all financial projections, all
lists of assets and descriptions of the terms of their acquisition or current
status), whether written or oral, was when given and shall be at the time of
Closing, true, accurate and complete, without any material misstatement or
omission of fact.
Section 4.08. Litigation. There are no actions, suits or proceedings
(whether or not purportedly on behalf of Borrower) pending, or to the knowledge
of Borrower threatened, against or affecting Borrower, at law or in equity,
before or by any Person, which, if adversely determined, would have a material
adverse effect on the business, properties, prospects or the condition
(financial or otherwise) of Borrower, and Borrower is not in violation or
default with respect to any applicable laws and regulations which would
materially and adversely affect the business, properties or condition (financial
or otherwise) of Borrower, nor is Borrower in violation or default with respect
to any order, writ, injunction, demand or decree of any court or any Person or
in violation or default (nor is there any waiver in effect which, if not in
effect, would
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result in a violation or default) in any material respect under any indenture,
agreement or other instrument under which Borrower is a party or may be bound.
Section 4.09. Title. Borrower has good and marketable title, free and
clear of any liens or encumbrances other than Permitted Encumbrances, to the
Land and properties and assets which are part of the Collateral, or have been
represented to Lender as owned, or by the time of Closing to be owned, by
Borrower.
Section 4.10. Patent, Trade Names and Other Rights. Borrower possesses
or is entitled to the benefits of all patents, licenses, franchise agreements,
appointments, authorizations, trademarks, trade names, trade secrets, copyrights
and all rights with respect thereto, which are required to conduct its business
as now conducted or as contemplated without known conflict with the rights of
others which would materially and adversely affect such business.
Section 4.11. Adverse Contracts and Orders. Borrower is not a party to,
bound by, subject to, in violation of or in default under any contract,
instrument, charter, by-law or other corporate restriction or any order, decree
or judgment of any Person which materially and adversely affects its business,
properties, prospects or conditions (financial or otherwise).
Section 4.12. Use of Proceeds. All proceeds of the Loan shall be used by
Borrower for the purposes specified hereinabove.
Section 4.13. Tax Returns and Payments. Borrower has filed all tax
returns and reports required to be filed by it and has paid, or adequately
provided for the payment of, all taxes, assessments and other governmental
charges imposed upon Borrower or its properties, assets, income or franchises,
other than any such charges which are currently payable without penalty or
interest.
Section 4.14. Disclosure. Neither the Agreement, the Mortgages, the
Note, nor any other document, certificate or statement furnished to Lender by or
on behalf of Borrower in connection with this Agreement or the credit provided
hereunder contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained herein and
therein not misleading. There is no fact known to Borrower which materially and
adversely affects the business, properties, operations or condition, financial
or otherwise, of Borrower which has not been disclosed in writing to Lender.
Borrower specifically represents that it has no knowledge that the Collateral
has ever been used as a landfill or for any industrial or other use which might
in any way have led to the deposit, introduction or leaching of any toxic or
other hazardous substance dangerous to the environment or the Collateral which
would require remediation by Borrower.
Section 4.15. Compliance with Regulations G, T, U, and X. Borrower is
not engaged principally or as one of its important activities in the business of
extending credit for the purpose of purchasing or carrying, and Borrower does
not own or presently intend to acquire, any "margin security" or "margin stock"
as defined in Regulations G, T, U, and X (12 C.F.R. Parts 221 and 224) of the
Board of Governors of the Federal Reserve System (herein called "margin stock").
None of the proceeds of the Loan will be used, directly or indirectly, for the
purpose of purchasing or carrying any margin stock or for the purpose of
reducing or retiring any Indebtedness which was originally incurred to purchase
or carry margin stock or for any other purpose which might constitute this
transaction a "purpose credit" within the meaning of said Regulations G, T, U,
and X. Neither Borrower nor any bank acting on its or their behalf has taken or
will take
14
any action which might cause this Agreement or the Note to violate Regulation G,
T, U, or X or any other regulation of the Board of Governors of the Federal
Reserve System or to violate the Securities Exchange Act of 1934, in each case
as now in effect or as the same may hereafter be in effect. If so requested by
Lender, Borrower will furnish Lender with (i) a statement or statements in
conformity with the requirements of Federal Reserve Forms G-3 and/or U-1
referred to in Regulations G and U of said Board of Governors and (ii) other
documents evidencing its compliance with the margin regulations, including
without limitation an opinion of counsel in form and substance satisfactory to
Lender. Neither the making of the Loan nor the use of proceeds thereof will
violate, or be inconsistent with, the provisions of Regulation G, T, U, or X of
said Board of Governors.
Section 4.16. Solvency. Borrower is Solvent.
Section 4.17. Name of Borrower. Borrower has not changed its name within
the preceding five (5) years from the date of this Agreement, and has not
transacted business under any other name or trade name.
Section 4.18. Investment Company Act. Borrower is not required to
register under the provisions of the Investment Company Act of 1940, as amended,
and neither the entering into or performance by Borrower of this Agreement nor
the issuance of the Note violates any provision of such Act or requires any
consent, approval, or authorization of, or registration with, the Securities and
Exchange Commission or any other governmental or public body or authority
pursuant to any of the provisions of such Act.
Section 4.19. ERISA. Borrower and each ERISA Affiliate and each of their
respective Plans are in substantial compliance with ERISA and the Code and
neither Borrower nor any of its ERISA Affiliates has incurred any accumulated
funding deficiency with respect to any such Plan within the meaning of ERISA or
the Code. Borrower and each of its ERISA Affiliates have complied with all
requirements of ERISA Sections 601 through 608 and Code Section 4980B. Neither
Borrower nor any of its ERISA Affiliates has made any promises of retirement or
other benefits to employees, except as set forth in the Plans. Neither Borrower
nor any of its ERISA Affiliates has incurred any material liability to the
Pension Benefit Guaranty Corporation in connection with any such Plan. The
assets of each such Plan which is subject to Title IV of ERISA are sufficient to
provide the benefits under such Plan, the payment of which the Pension Benefit
Guaranty Corporation would guarantee if such Plan were terminated, and such
assets are also sufficient to provide all other "benefit liabilities" (as
defined in ERISA Section 4001(a)(16) due under the Plan upon termination). No
Reportable Event has occurred and is continuing with respect to any such Plan.
No such Plan or trust created thereunder, or party in interest (as defined in
Section 3(14) of ERISA), or any fiduciary (as defined in Section 3(21) of
ERISA), has engaged in a "prohibited transaction" (as such term is defined in
Section 406 of ERISA or Section 4975 of the Code) which would subject such Plan
or any other Plan of Borrower or any of its ERISA Affiliates, any trust created
thereunder, or any such party in interest or fiduciary, or any party dealing
with any such Plan or any such trust to the penalty or tax on "prohibited
transactions" imposed by Section 502 of ERISA or Section 4975 of the Code.
Neither Borrower nor any of its ERISA Affiliates is a participant in or is
obligated to make any payment to a Multiemployer Plan.
Section 4.20. Foreign Persons. Neither Borrower nor any partner or
stockholder of Borrower is, and no legal or beneficial interest in a partner or
stockholder of Borrower is, or will be held, directly or indirectly, by a
"foreign person" under the International Foreign Investment Survey Act of 1976,
the Agriculture Foreign Investment Disclosure Act of 1978, the Foreign
Investments in Real Property Tax Act of 1980, or the amendments of such Acts or
regulations promulgated pursuant to such Acts.
15
Section 4.21. Reliance on Covenants. Each and every covenant contained
in this Agreement, and all such covenants in the aggregate, have been and will
continue to be (so long as credit remains outstanding hereunder) relied upon by
Lender and are material to its protection, in connection with all credit now or
hereafter extended to Borrower hereunder. Each request for a draw under the Loan
shall constitute an affirmation that the representations and warranties of this
Article remain true and correct as of the date thereof, and, unless Lender is
notified to the contrary prior to the disbursement of the requested advance or
any portion thereof, shall constitute an affirmation that the same remain true
and correct on the date of such disbursement.
Section 4.22. Compliance. The Project and its use does now and will
hereafter comply fully with and all prior approvals have been obtained in
connection with and no notices of violation have been received in connection
with (a) plat restrictions, all restrictive covenants, building setback lines,
encroachments, ordinances, requirements, conditions and design and building
requirements affecting the Project (the "Restrictive Covenants"), and (b) all
zoning, flood plain, planning, sub-division, building, health, labor,
discrimination, fire, traffic, safety, wetlands, shoreline and all other
governmental or regulatory laws, rules, regulations, ordinances, statutes, codes
and requirements applicable to the Project, including, without limitation, the
Fair Housing Act of 1968, as amended, and the Americans with Disabilities Act of
1990, as amended (collectively, the "Building Laws"). Borrower has received such
final certificates as may be required or which are customary in evidencing
compliance with all building codes and permits, and approval of full occupancy
of the improvements and of all installations therein located on the Project.
Borrower shall cause the Project to be continuously in compliance with all
Restrictive Covenants and Building Laws as the same may be amended from time to
time.
Section 4.23. No Brokers. No dealings with any broker or finder have
been had in connection with the transaction contemplated by this Agreement.
Section 4.24. Year 2000 Compliance. Borrower has (i) begun analyzing the
operations of Borrower and its subsidiaries and affiliates that could be
adversely affected by failure to become Year 2000 compliant (that is, that
computer applications, imbedded microchips and other systems will be able to
perform date-sensitive functions prior to and after December 31, 1999); and (ii)
developed a plan for becoming Year 2000 compliant in a timely manner, the
implementation of which is on schedule in all material respects. Borrower
reasonably believes that it will become Year 2000 compliant for its operations
and those of its subsidiaries and affiliates on a timely basis except to the
extent that a failure to do so could not reasonably be expected to have a
material adverse effect upon the financial condition of Borrower. Borrower
reasonably believes any suppliers and vendors that are material to the
operations of Borrower or its subsidiaries and affiliates will be Year 2000
compliant for their own computer applications except to the extent that a
failure to do so could not reasonably be expected to have a material adverse
effect upon the financial condition of Borrower. Borrower will promptly notify
Lender in the event Borrower determines that any computer application which is
material to the operations of Borrower, its subsidiaries or any of its material
vendors or suppliers will not be fully 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 upon the financial condition of Borrower.
Section 4.25. 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.
16
ARTICLE V
FINANCIAL COVENANTS
Section 5.01. Debt Service Coverage. Borrower shall not permit its Debt
Service Ratio to be less than 1.15:1 for any fiscal year of Borrower.
Section 5.02. Reporting Requirement. During the term of this Agreement,
Borrower shall provide Lender with the following:
(a) Prior to the end of 120 days following the end of
Borrower=s fiscal year, until all Obligations are
satisfied, financial statements of Borrower, with
respect to Borrower=s then most recently completed
fiscal year, consisting of at least a balance sheet,
income statement and cash flow statement, prepared in
accordance with GAAP and audited by a firm of certified
public accountants acceptable to Lender.
(b) Before the end of thirty days following each fiscal
quarter of Borrower, financial statements with respect
to the Borrower=s most recently completed fiscal quarter
prepared by Borrower and consisting of at least a
balance sheet and income statement.
(c) Prior to April 30th of every year, until all Obligations
are satisfied, copies of Borrower=s federal income tax
returns.
(d) Prior to April 30th of every year, until all Obligations
are satisfied, personal financial statements and federal
tax returns for each Guarantor.
(e) Promptly, from time to time, such other information
regarding Guarantors', and Borrower's operations,
business affairs and financial condition as Lender may
reasonably request.
(f) Within 10 days of filing, copies of all reports and
other documents filed with or submitted to the
Securities and Exchange Commission by Borrower.
Section 5.03. Restrictions. Until full payment and performance of all
Obligations, Borrower shall not, without the prior written consent of Lender
(and without limiting any requirement of any other Loan Documents):
(a) Sell, lease, assign or otherwise dispose of or transfer
any of its assets or the Collateral, except in the
normal course of its business; enter into any merger or
consolidation; form or acquire any subsidiary; permit
the transfer of the ownership of its ownership
interests; or make any substantial change in its present
executive or management personnel.
(b) Grant, suffer or permit any contractual or
noncontractual lien on or security interest in the
Collateral, except in favor of Lender, or fail to
promptly pay when due all lawful claims, whether for
labor, materials or otherwise.
17
(c) Make or permit any subsidiary to make, any loan or
advance to any Person, or purchase or otherwise acquire,
or permit any subsidiary to purchase or otherwise
acquire, any capital stock, assets, obligations, or
other securities of, make any capital contribution to,
or otherwise invest in or acquire any interest in any
entity, or participate as a partner or joint venturer
with any person or entity, except for the purchase of
direct obligations of the United States or any agency
thereof with maturities of less than one year.
(d) Guarantee the debt or obligation of any other Person.
(e) Redeem any of its ownership interests or otherwise amend
its capital structure.
(f) Create, incur, assume or become liable in any manner for
any Indebtedness (for borrowed money, deferred payment
for the purchase of assets, lease payments, as surety or
guarantor for the debt for another, or otherwise) other
than to Lender, except for normal trade debts incurred
in the ordinary course of Borrower's business, and
except for existing indebtedness disclosed to Lender in
writing and acknowledged by Lender prior to the date of
this Agreement.
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ARTICLE VI
ADDITIONAL COVENANTS
During the term of this Agreement, Borrower shall comply with each and
every one of the following covenants.
Section 6.01. Right of Inspection. Borrower shall permit Lender or its
representatives, at any reasonable time and from time to time, to inspect
Borrower's properties consisting of the Collateral hereunder and to audit,
examine and copy or take abstracts from Borrower's and books and records with
regard to the Collateral.
Section 6.02. Construction Contracts; Change Orders. Borrower shall (i)
permit no defaults under the terms of any Construction Contract, and (ii) make
no amendments to or change orders under any Construction Contract without the
prior written consent of Lender.
Section 6.03. Notice of Default. Upon its discovery of the occurrence of
any default or Event of Default (or the existence of any fact or circumstance
which can be reasonably expected to result in a default or Event of Default), or
other noncompliance with any provision, term or condition of this Agreement, the
Note, the Mortgages, or any other Loan Document, Borrower shall immediately give
notice thereof to Lender.
Section 6.04. Insurance. Borrower shall maintain or cause to be
maintained insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as may be required by the
Mortgages, or as Lender may otherwise require from time to time; but in any
event Borrower shall at least maintain policies of insurance as follows: (a)
with respect to any and all Collateral, insurance against loss by fire,
windstorm, explosion or other casualty and defect of title to real property in
an amount not less than the full insurable value thereof; (b) public liability
personal injury insurance (including worker's compensation Insurance) in an
amount maintained by similar operations against claims for bodily injury or
death; (c) public liability property damage insurance, insuring against claims
for damage to property of third persons, with such insurance to afford
protection in an amount maintained by similar operations; (d) during the course
of all construction activity, a "completed value" builder's risk insurance
policy, with evidence that the premium therefor has been fully paid, providing
fire and extended coverage insurance, as well as coverage against vandalism and
malicious mischief, all in the amount of 100% of the completed value of the
Improvements; (e) business interruption insurance; and (f) with respect to all
real property constituting Collateral, flood insurance if the encumbered
premises are situated in an area which is considered a flood risk area by the
U. S. Department of Housing and Urban Development or as otherwise required by
the Flood Disaster Protection Act of 1973 and regulations issued thereunder.
Borrower shall cause Lender to be named as a loss payee as its interest may
appear on any insurance policy insuring any Collateral, property or person set
forth above by utilizing such form of endorsement as Lender may require and
named as co-obligees under any payment or performance bond.
Section 6.05. Conduct of Business. Borrower shall: preserve and maintain
its businesses as presently conducted (or as contemplated hereby), and all
rights, privileges and franchises necessary or desirable in the normal conduct
of its businesses, and conduct its businesses in an orderly, efficient and
regular manner; keep true and correct books of record and account adequate to
the needs of its businesses; keep its properties useful or necessary in its
businesses in good working order and condition, and from time
19
to time make all needed repairs, renewals and replacements thereto or thereof,
so that the efficiency of its properties shall be usefully preserved; and comply
with all applicable laws and regulations of any Person and the terms of any
indenture, contract, memorandum of understanding or other instrument to which it
may be a party or under which it or its properties may be bound, if
noncompliance will have a material adverse effect upon its financial condition,
except where contested in good faith and by proper proceedings.
Section 6.06. Commencement and Completion of Construction. Borrower
shall commence construction of the Project within 30 days from the date of this
Agreement and shall diligently pursue construction to completion within four
months from the date hereof; supply such monies and perform such duties as may
be necessary to complete the construction of the Project in accordance with the
Plans and Specifications and in full compliance with all terms and conditions of
the Loan Documents, and without liens, claims or assessments (actual or
contingent) asserted against the Project for any material, labor or other items
furnished in connection therewith, and all in full compliance with this
Agreement and with all restrictive covenants affecting the Project.
Section 6.07. Conformance with Plans and Specifications. Borrower shall
construct all Improvements in accordance with the Plans and Specifications,
using those materials called for therein, and using construction techniques of
good, substantial workmanship, which conform to the Southern Building Code.
Where the Plans and Specifications and/or the Southern Building Code are silent
as to any item, the Improvements shall conform to the minimum requirements of
the Federal Housing Administration. All footings and floors shall be completely
level. All corners both inside and outside shall be completely square. All
foundation walls and interior and exterior walls, both unfinished and finished,
shall be completely plumb. All interior surfaces and corners shall be smooth and
finished. All trim and exterior siding shall join with no filled gaps, and shall
be straight and free of bows or curves. Interior walls shall be straight unless
otherwise called for in the Plans and Specifications. All heating, air
conditioning, plumbing and electrical installation shall be in proper working
order, in the same clean appearance as shipped, and free from dirt, paint,
plaster and foreign materials. Completion of the Improvements shall include
connection to a sewer system and to water, electric, gas and telephone supplies.
Section 6.08. Inspections, Corrections and Change Orders. Borrower shall
permit Lender or its representatives to inspect the Improvements and all
materials to be used in the construction thereof (provided, however, that this
provision shall not be deemed to impose upon Lender any obligation to undertake
such inspections); correct promptly any structural defect in the Improvements or
any departure from the Plans and Specifications not previously approved by
Lender, Borrower hereby agreeing that the advance of any loan proceeds, with or
without knowledge of such defect, shall not constitute a waiver of Lender's
right to require compliance with this covenant; and permit no deviations from
the Plans and Specifications during construction without the prior written
approval of Lender.
Section 6.09. Sign Regarding Construction Financing. At Lender's option,
Borrower shall erect promptly and maintain on a suitable site at the Project a
sign indicating that construction financing is being provided by Lender, all to
the satisfaction of Lender and shall prevent the destruction or removal of said
sign without the prior written approval of Lender.
Section 6.10. ERISA. Borrower shall at all times make, or cause to be
made, prompt payment of contributions required to meet the minimum funding
standards set forth in ERISA with respect to its and its affiliates' Plans;
promptly after the filing thereof, furnish to Lender copies of any annual report
required to be filed pursuant to ERISA in connection with each such Plan of it
and its affiliates; notify Lender as soon
20
as practicable of any Reportable Event and of any additional act or condition
arising in connection with any such Plan which Borrower believes might
constitute grounds for the termination thereof by the Pension Benefit Guaranty
Corporation or for the appointment by the appropriate United States District
Court of a trustee to administer such Plan; and furnish to Lender, promptly upon
Lender's request therefor, such additional information concerning any such Plan
as may be reasonably requested by Lender.
Section 6.11. Escrow of Taxes and Insurance. If required by Lender, in
addition to payments required to be made under the Note, Borrower shall make
monthly deposits to Lender for real estate and personal property taxes and
hazard insurance premiums for the Collateral in an amount equal to 1/12th of the
annual charges estimated by Lender. Upon notification by Lender that such
deposits will be insufficient to pay said estimated taxes and insurance premiums
when due, Borrower shall, within ten Business days, deposit an amount with
Lender sufficient to remedy such deficiency.
Section 6.12. Americans With Disabilities Act. Borrower shall comply
with the Americans With Disabilities Act in every respect.
Section 6.13. Notification of Claims by Subcontractors and Materialmen.
Borrower shall advise Lender immediately, and in writing, if Borrower receives
any notice, written or oral, from any laborer, subcontractor or materialman to
the effect that said laborer, subcontractor or materialman has not been paid
when due for any labor or materials furnished in connection with the
construction or the Improvements.
Section 6.14. Insufficiency of Loan Proceeds. Borrower shall deposit
funds with Lender as hereinafter provided. If at any time during the term of
this Agreement, in Lender's judgment and opinion the remaining undisbursed
portion of the Loan is insufficient to fully complete the Improvements
substantially in accordance with the Plans and Specifications, and to pay all
interest accrued or to accrue on the Loan, and to pay all other sums due or to
become due under the Loan Documents, Borrower shall, within seven (7) days after
written notice thereof from Lender, deposit with Lender such sums of money in
cash as Lender may require, and in an amount or amounts sufficient to remedy
such condition, and sufficient to pay any liens for services and materials
alleged to be due and payable at that time in connection with the Improvements,
and, at Lender's option, no further disbursements of the Loan shall be made by
Lender until this paragraph has been fully complied with. All such deposited
sums shall stand as additional security for Borrower's obligations under this
Agreement ans shall be disbursed by Lender before any further advances of the
Loan are made, or paid over to Borrower upon termination of Borrower's
obligations under this Agreement.
Section 6.15. Expenses. Borrower shall pay all reasonable out-of-pocket
expenses of Lender (including, but not limited to, reasonable fees and
disbursements of Lender's attorneys, architects and appraisers) incident to the
preparation, execution and delivery of, and the providing of credit under, this
Agreement and the Loan Documents, and any amendments or waivers to this
Agreement and the Loan Documents during any periods of construction and
thereafter until all Obligations shall have been fully satisfied. In addition,
Borrower shall pay all reasonable out-of-pocket expenses of Lender (including,
but not limited to reasonable fees and disbursements of Lender' attorneys and
appraisers) incident to the protection of the rights of Lender under this
Agreement and the Loan Documents and the enforcement of payment of any and all
Obligations, whether by judicial proceedings or otherwise. The obligations of
Borrower under this Section shall survive payment and cancellation of the Note.
21
Section 6.16. Compliance With Law. Borrower shall conduct its businesses
so as to comply with all laws and regulations in all jurisdictions in which it
may at any time be doing business or which may otherwise be applicable.
Section 6.17. Payment of Taxes and Other Charges. Except as otherwise
permitted herein, Borrower shall pay, when due, (a) all taxes, assessments, or
other governmental charges or levies imposed in connection with the execution,
delivery or recordation of this Agreement, the Note, the Mortgages, or any other
documents related to the transactions which are the subject of this Agreement,
and (b) all taxes, assessments, and other governmental charges or levies, and
all utility charges, imposed upon it or any of its properties, and all claims
for labor, supplies or rent, and all other obligations which, if unpaid, might
become a lien on any of the Collateral.
Section 6.18. Additional Documents. Borrower covenants and agrees to
execute such other additional documents from time to time as shall be necessary
to carry out the intent of the Agreement.
Section 6.19. Deposit of Funds Advanced. Borrower covenants and agrees
that all amounts disbursed to Borrower hereunder will be received as a trust
fund and Borrower will immediately deposit all such funds in a separate and
exclusive account to be withdrawn and used solely for the payment of bills for
labor, materials and fixtures used in the construction of the Improvements, and
whenever so requested by Lender, Borrower will promptly furnish Lender
satisfactory evidence thereof.
Section 6.20. Accounts. Borrower shall maintain its primary operation
and payroll accounts with Lender as additional security for the Loan.
Section 6.21. Change Orders. All requests for changes in the Plans and
Specifications, other then minor changes involving no extra 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.
Section 6.22. 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.
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ARTICLE VII
EVENTS OF DEFAULT
Section 7.01. Events of Default. The occurrence of any one or more of
the following shall constitute an Event of Default:
(a) Borrower shall fail to pay when due (i) any installment
of principal or interest under the Note, or (ii) any
other Obligations for the payment of money to Lender.
(b) Borrower shall fail to perform or observe any term,
condition, covenant or other provision contained in this
Agreement, the Mortgages, any Loan Document or in any
other agreement with or instrument in favor of Lender
and such failure shall continue for more than thirty
(30) days after written notice.
(c) Any representation or warranty made in writing by or on
behalf of Borrower herein or in the Mortgages or
pursuant hereto or thereto, or otherwise in connection
with this Agreement, shall prove to have been false or
incorrect in any material respect, or to have omitted to
state a material fact required to be stated therein in
order to make the statements contained therein, in the
light of the circumstances under which made, not
misleading, on the date as of which made.
(d) Borrower shall fail to make any payment when due or
within any applicable grace period with respect to any
debt aggregating in excess of $10,000, or cause any
event or condition to occur which results in the
acceleration of the maturity of any debt in excess of
$10,000 or enables (or, with the giving of notice or
lapse of time or both, would enable) the holder of such
debt or any Person acting on such holder's behalf to
accelerate the maturity thereof; provided, however, this
Section 7.01 (d) shall not apply to any debt or payment
contested by Borrower reasonably and in good faith and,
if the contested debt exceeds $10,000, Lender is
provided with timely written notice of such contest and
is kept informed concerning the progress thereof.
(e) Borrower shall be adjudicated a bankrupt or insolvent,
or admit in writing its inability to pay its debts as
they mature, or make an assignment for the benefit of
creditors; or shall apply for or consent to the
appointment of a receiver, trustee, or similar officer
for it or for all or any substantial part of its
property; or such receiver, trustee or similar officer
shall be appointed without the application or consent of
Borrower, and such appointment shall continue
undischarged for a period of sixty (60) days; or
Borrower shall institute (by petition, application,
answer, consent or otherwise) any bankruptcy,
insolvency, reorganization, arrangement, readjustment of
debt, dissolution, liquidation or similar proceeding
relating to it under the laws of any jurisdiction; or
any such proceeding shall be instituted (by petition,
application or otherwise) against Borrower and shall
remain undismissed for a period of sixty (60) days; or
any judgment, writ, warrant of attachment or execution
or similar process shall be issued or levied against a
substantial part of the property of Borrower and such
judgment, writ, or similar
23
process shall not be released, vacated or fully bonded
within sixty (60) days after its issue or levy.
(f) There shall be at any time any "accumulated funding
deficiency," as defined in ERISA or in Section 412 of
the Code, with respect to any Plan maintained by
Borrower or any of its ERISA Affiliates or to which
Borrower or any of its ERISA Affiliates has any
liabilities, or any trust created thereunder; or a
trustee shall be appointed by a United States District
Court to administer any such Plan; or the Pension
Benefit Guaranty Corporation shall institute proceedings
to terminate any such Plan; or Borrower or any of its
ERISA Affiliates shall incur any liability to the
Pension Benefit Guaranty Corporation in connection with
the termination of any such Plan; or any Plan or trust
created under any Plan of Borrower or any of its ERISA
Affiliates shall engage in a "prohibited transaction"
(as such term is defined in Section 406 of ERISA or
Section 4975 of the Code) which would subject any such
Plan, any trust created thereunder, any trustee or
administrator thereof, or any party dealing with any
such Plan or trust to the tax or penalty on "prohibited
transactions" imposed by Section 502 of ERISA or Section
4975 of the Code; or Borrower or any of its ERISA
Affiliates shall enter into or become obligated to
contribute to a Multiemployer Plan.
(g) A final judgment for money not fully covered by
insurance in excess of $10,000 shall be rendered against
Borrower and if, within thirty (30) days after entry
thereof, such judgment shall not have been discharged,
satisfied or execution thereof stayed pending appeal, or
if, within thirty (30) days after the expiration of any
such stay, such judgment shall not have been discharged
or satisfied.
(h) Construction of the Improvements shall be abandoned or
shall cease (except due to events of force majeure which
are hereby defined to mean acts of God, enemy action or
civil commotion) and not be resumed within fifteen (15)
days thereafter.
(i) Any of the preceding events occurs with respect to any
Guarantor or any Guarantor dies or becomes incompetent,
or revokes or disputes the validity of, or liability
under, any Guaranty Agreement.
(j) A material adverse change occurs in Borrower's financial
condition, or Lender believes the prospect of payment or
performance of the Indebtedness is impaired.
(k) The Improvements are not constructed in accordance with
the Plans and Specifications or in accordance with the
terms of the Construction Contract.
(l) Developer shall fail to deposit $5,000.00 into the
Escrow Account from the proceeds from each lot sale in
the Development , as described in Article II, within
five business days from each such lot sale.
Section 7.02. Remedies on Default. Upon the occurrence of an Event of
Default under Section 7.01(e), the entire unpaid principal amount of the Note,
all other Obligations and all interest accrued and unpaid thereon shall
automatically become and be forthwith due and payable without presentment,
demand,
24
protest or notice of any kind, all of which are hereby expressly waived
by Borrower. Upon the occurrence of any other Event of Default, Lender may
declare the entire unpaid principal amount of the Note, all other Obligations
and all interest accrued and unpaid thereon to be forthwith due and payable,
whereupon the same shall become immediately due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by Borrower. Upon the occurrence of any Event of
Default, Lender may immediately and without expiration of any period of grace,
enforce payment in whole or in part, in any priority, of all Obligations whether
under the Note or otherwise, and exercise any and all other remedies granted to
it under the Mortgages or by law including but not limited to recovery of
Lender's reasonable attorneys' fees.
Section 7.03. Additional Remedies. Upon the occurrence of an Event of
Default, Lender may, at its option and sole discretion, in addition to and not
in lieu of the remedies set forth above, exercise any or all of the following
remedies:
(a) enter into possession of the Project, at which time
Borrower shall vacate;
(b) perform or cause to be performed any and all work and
labor necessary to complete the Improvements
substantially in accordance with Plans and
Specifications or in accordance with reasonable business
judgment;
(c) employ security watchmen to protect the Project; and
(d) disburse that portion of the proceeds of the Loan not
previously disbursed (including any retainage) to the
extent necessary to complete construction of the
Improvements substantially in accordance with the Plans and
Specifications or in accordance with reasonable business
judgment, and if the completion requires a larger sum than
the remaining undisbursed portion of the Loan, to disburse
such additional funds, all of which funds so disbursed by
the Lender shall be deemed to have been disbursed to the
Borrower and shall be secured by the Mortgages. For this
purpose, the Borrower hereby constitutes and appoints the
Lender its true and lawful attorney-in-fact with full power
of substitution to complete the construction of the
Improvements in the name of the Borrower and to disburse
the Loan to accomplish such completion and to do any other
reasonable act related thereto, including but not limited
to the following: to use any funds of the Borrower,
including any balance which may be held in escrow and any
funds which may remain unadvanced hereunder for the purpose
of completing the Improvements in substantially the manner
called for by the Plans and Specifications or by reasonable
business judgment; to make such additions and changes and
corrections in the Plans and Specifications which shall be
necessary or desirable to complete the Improvements in
substantially the manner contemplated by the Plans and
Specifications or by reasonable business judgment; to
employ such contractors, subcontractors, agents,
architects, and inspectors as shall be required for said
purposes; to pay, settle, or compromise all existing or
future bills and claims which are or may be liens against
the Project, or may be necessary or desirable to be paid,
settled, or compromised for the completion of the
Improvements or the clearance of title to the Project; to
execute all applications and certificates in the name of
the Borrower which may be required
26
by any construction contract and to do any and every act
with respect to the construction of the Improvements which
the Borrower may do in its own behalf. It is understood and
agreed that this power of attorney shall be deemed to be a
power coupled with an interest which cannot be revoked by
death or otherwise. Said attorney-in-fact shall also have
power to prosecute and defend all actions or proceedings in
connection with the construction of the Improvements and to
take such action and require such performance as it
reasonably deems necessary. In accordance therewith the
Borrower hereby assigns and quitclaims to the Lender all
sums to be advanced hereunder, including retainage and all
sums in escrow conditioned upon the use of said sums, if
any, for the completion of the Improvements and the
performance of the Borrower's obligations under the Loan
Documents.
Section 7.04. Set-Off. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
upon the occurrence of an Event of Default, Lender and any subsequent holder of
the Note are hereby authorized by Borrower at any time or from time to time,
without notice to Borrower, or to any other Person, any such notice being hereby
expressly waived, to set-off, to appropriate, and to apply any and all deposits
(general or special, time or demand, including, but not limited to, indebtedness
evidenced by certificates of deposit, in each case whether matured or unmatured)
and any other Indebtedness at any time held or owing by Lender or such holder to
or for the credit or the account of Borrower, as the case may be, against and on
account of the Obligations and liabilities of Borrower, as the case may be, to
Lender or such holder under this Agreement, the Note, and any other Loan
Document, including, but not limited to, all claims of any nature or description
arising out of or connected with this Agreement, the Note, or any other Loan
Document, irrespective of whether or not (a) Lender or the holder of the Notes
shall have made any demand hereunder or (b) Lender shall have declared the
principal of and interest on the Loans and the Note and other amounts due
hereunder to be due and payable as permitted by Section 7.02 hereof and although
said Obligations and liabilities, or any of them, shall be contingent or
unmatured.
Section 7.05. Remedies Cumulative. No right or remedy conferred upon or
reserved to Lender under this Agreement is intended to be exclusive of any other
right or remedy, and each and every remedy shall be cumulative and in addition
to every other right or remedy given hereunder or now or hereafter existing
under any applicable law. Every right and remedy given by this Agreement or by
applicable law to Lender may be exercised from time to time and as often as may
be deemed expedient by Lender.
26
ARTICLE VIII
ENVIRONMENTAL
Section 8.01. Definitions. For purposes of this Article, the following
terms shall have the meanings indicated:
"Environmental Claim" shall mean any and all administrative, regulatory
or judicial actions, suits, demands, demand letters, directives, claims, liens,
investigations, proceedings or notices of noncompliance or violation (written or
oral) alleging potential liability arising out of, based on, or resulting from:
(i) the presence, or Release into the environment of any Hazardous Materials; or
(ii) past or present circumstances forming the basis of any violation or alleged
violation of any Environmental Law.
"Environmental Laws" shall mean all federal, state, local or foreign
statutes, laws, rules, ordinances, codes, policies, rules of common law and
regulations relating to pollution (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata), worker health
and safety or protection of human health or the environmental including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 ("CERCLA"), the Resource Conservation and Recovery Act, the Georgia
Underground Storage Tank Act, and laws and regulations relating to Releases or
threatened Releases of Hazardous Materials, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials.
"Hazardous Materials" shall mean any petroleum or petroleum products,
explosive or radioactive materials, asbestos, urea formaldehyde foam insulation,
polychlorinated biphenyls (PCBs) and radon gas; any chemicals, materials or
substances which are defined as hazardous, toxic or a contaminant or pollutant
under any Environmental Law; and any other chemical, material, substances or
waste, exposure to which is now prohibited, limited or regulated by any
governmental authority.
"Release" shall mean any release, spill, emission, leaking, injection,
deposit, disposal, discharge, dispersal, dumping, discarding, escaping, leaching
or migration into the atmosphere, soil, surface water, groundwater or property
that would require action under any Environmental Law.
Section 8.02. Representations and Warranties.
(a) Borrower is, and at all times in the past has been, in
compliance with all applicable Environmental Laws; and
has not received any communication (written or oral)
that alleges that Borrower is not in compliance with
applicable Environmental Laws.
(b) Borrower has obtained all environmental, health and
safety permits and governmental authorizations
("Permits") necessary for its operations, and all such
Permits are in good standing, and Borrower is in
compliance with all terms and conditions of the Permits.
(c) There is no Environmental Claim pending or threatened
against Borrower or against any Person whose liability
for any Environmental Claim Borrower has or may have
retained or assumed either contractually or by operation
of Law, or against the Project, or past or present
operations of Borrower. There are no past
27
or present circumstances, activities, events, conditions
or occurrences that could reasonably be anticipated for
the basis of an Environmental Claim against the Project
or Borrower or prevent or interfere with Borrower's
ability to fully operate and maintain the Project as
contemplated by Borrower and in full compliance with
applicable Environmental Laws.
(d) Hazardous Materials have not at any time been generated,
used, treated, recycled or stored on, or transported to
or from, or released, deposited or disposed of on the
Project or property previously owned, operated, used or
controlled by Borrower.
(e) Borrower has not, and has no knowledge of any other
person who has, caused any Release, threatened Release,
or disposal of any Hazardous Material at the Project; to
the knowledge of Borrower, the Project is not adversely
affected by an Release, threatened Release or disposal
of a Hazardous Material originating or emanating from
any other property.
(f) There are not now and never have been any storage tanks
(above ground or underground) located at, on or under
the Project; no portion of the Project contains and has
not contained any landfills or dumps; there is no
asbestos contained in, forming part of or contaminating
any part of the Project; and no polychlorinated
biphenyls (PCBs) are used, stored, located at or
contaminate any part of the Project.
(g) No location at which Borrower has disposed or arranged
for the disposal of any substance is listed on the
National Priorities List, the Georgia Hazardous Site
Inventory or the CERCLIS, or on any comparable list and
Borrower has not received any written notice with
respect to any location of potential or actual liability
or a written request for information under or relating
to CERCLA or any comparable state or local law.
Section 8.03. Covenants of Borrower.
Borrower covenants to:
(a) Comply with all Environmental Laws.
(b) Obtain and maintain in full force and effect all
material Governmental Approvals required by any
applicable Environmental Law for its operations.
(c) Cure any violation by it or at its properties of applicable
Environmental Laws.
(d) Not allow the presence or operation at its properties of
any (a) landfill or dump or (b) hazardous waste management
facility or solid waste disposal facility as defined pursuant
to RCRA or any comparable state law.
(e) Give immediate oral and written notice within three (3)
days to Lender, detailing all relevant facts and
circumstances upon the receipt of any notice of the happening
of any event involving an Environmental Claim, any violation
of an
28
Environmental Law, or Release, threatened Releases or
disposal of a Hazardous Material.
(f) Conduct at its expense any investigation, study, sampling,
testing, abatement, cleanup, removal, remediation, or other
response action necessary to remove, remediate, clean up, or
xxxxx any material Release, threatened Release, or disposal
of a Hazardous Material as required by any applicable
Environmental Law.
(g) Without limitation of the foregoing, Lender shall have the
option, but shall not be obligated to enter onto the Project
and/or take any actions as it deems necessary or advisable to
clean up, remove, resolve, or minimize the impact of, or
otherwise deal with, any Hazardous Discharge or Environmental
Complaint upon Lender's receipt of any notice from any Person
asserting the happening of a Hazardous Discharge or an
Environmental Complaint on or pertaining to the Project.
Lender shall also have the right to enter and inspect the
Project during the term of the loan to determine whether
Borrower is operating in accordance with the terms of the
loan agreement and any of the above-referenced laws or
regulations, which inspection may include taking soil and/or
water samples from the Project.
Section 8.04. Indemnification and Waiver.
(a) Borrower shall forever indemnify, defend, and hold
harmless and hereby waives any claim for contribution
against Lender for any damages to the extent they arise
from:
(i) any Release, threatened Release, or disposal of any
Hazardous Material at the Project by Borrower;
(ii) the operation or violation of any Environmental Law
at the Project or by Borrower;
(iii) any Environmental Claim in connection with the
Project or Borrower; or
(iv) the inaccuracy or breach of any representation,
warranty or covenant by Borrower contained in this
section of this Agreement.
(b) Borrower, and its successors or assigns, shall pay all
costs and expenses incurred by Lender to enforce the
provisions of this indemnification and waiver,
including, without limitation, attorneys' and
paralegals' fees and litigation expenses. This
indemnification shall survive the termination of this
agreement and shall remain in full force beyond
(i) the expiration of any applicable statute of
limitations; and
(ii) payment or satisfaction in full of any single claim
within the scope of this indemnification.
29
(c) These indemnifications and waivers shall be binding upon
successors and assigns of Borrower to the benefit of
Lender, its directors, officers, employees and agents,
and their successors and assigns;
(d) Lender shall have the right to reasonably monitor any
Response Action; Borrower shall provide a reasonable
opportunity to Lender for review and comment in advance
of each final Response Action Plan, material Response
Action and material filing with an applicable
Governmental Authority; and Borrower shall reasonably
address any timely received comment of Lender.
30
ARTICLE IX
MISCELLANEOUS
Section 9.01. Indemnification. Borrower agrees to indemnify Lender from,
and hold it harmless against, any and all liabilities, claims, damages or
expenses (including, without limitation, costs and expenses of litigation and
reasonable attorneys' fees) resulting from any breach by Borrower of any
representation, warranty or covenant contained in this Agreement or any Loan
Document. This indemnification shall survive payment of Borrower's Obligations
to Lender and shall continue for so long as Lender may incur liability for or be
harmed by a breach by Borrower of any representation, warranty or covenant in
this Agreement or any Loan Document.
Section 9.02. Entire Agreement. This Agreement with exhibits embodies
the entire agreement and understanding between the parties hereto and supersedes
all prior agreements and understandings relating to the subject matter hereof.
Section 9.03. No Waiver. No failure to exercise, and no delay in
exercising any right, power or remedy hereunder or under any document delivered
pursuant hereto shall impair any right, power or remedy which Lender may have,
nor shall any such delay be construed to be a waiver of any of such rights,
powers or remedies, or an acquiescence in any breach or default under this
Agreement or any document delivered pursuant hereto, nor shall any waiver of any
breach or default of Borrower hereunder be deemed a waiver of any default or
breach subsequently occurring. The rights and remedies herein specified are
cumulative and not exclusive of any rights or remedies which Lender would
otherwise have.
Section 9.04. Survival. All representations, warranties and agreements
herein contained on the part of Borrower shall survive the Closing hereunder and
all such representations, warranties and agreements shall be effective as long
as any portion of any Obligation remains unpaid, except that the indemnification
agreement contained herein shall continue as described in Section 9.01.
Section 9.05. Notices. All notices, requests, approvals, consents,
demands, and other communication provided for or permitted hereunder shall be in
writing, signed by an authorized representative of the sender and addressed to
the parties at their respective addresses set forth below.
Borrower: Mount Vintage Plantation Golf Club, LLC
Attn: Xx. Xxxxxx X. Xxxxxxxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000
Lender: Regions Bank
Attn: Xx. Xxxxx Xxxxxxxx
X.X. Xxx 0000
Xxxxx, XX 00000
Any of the parties hereto may change its respective address by notice in writing
given to the other party to this Agreement. Any notice, request, approval,
consent, demand or other communication shall be effective upon the first to
occur of the following: (i) when delivered to the party to whom such notice,
request,
31
approval, consent, demand or other communication is being given, or (ii) two
Business Days after being duly deposited in the mails, certified, return receipt
requested.
Section 9.06. Termination. This Agreement shall terminate when all
Obligations of Borrower shall have been discharged in full.
Section 9.07. Severability of Provisions. In case any one or more of the
provisions contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
Section 9.08. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of Borrower, Lender and their respective heirs,
successors and assigns; provided, however, that Borrower may not assign or
transfer its rights to borrow under this Agreement without prior written consent
of Lender.
Section 9.09. Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one agreement, and
any party hereto may execute this Agreement by signing any such counterpart.
Section 9.10. Choice of Law. This Agreement shall be governed by and
construed in accordance with the law of the State of South Carolina.
Section 9.11. Amendment and Waiver. No provision of this Agreement, the
Mortgages, or the Note may be amended, modified, supplemented, changed, waived,
discharged or terminated, unless Lender consents thereto in writing.
Section 9.12. Limitation on Interest. No provision of this Agreement or
any Note shall require the payment or permit the collection of interest in
excess of the maximum allowable by law. If any such excess interest is provided
for herein or in any Note, or shall be adjudicated to be so provided for, then
Borrower shall not be obligated to pay such interest in excess of the maximum
allowable by law, and the right to demand payment of any such excess interest is
hereby waived, any other provision of this Agreement or any Note to the contrary
notwithstanding.
Section 9.13. Arbitration. Any controversy or claim between or among the
parties hereto including but not limited to those arising out of or relating to
this Agreement or any Loan Documents including any claim based on or arising
from an alleged tort, shall be determined by binding arbitration in Augusta,
Georgia in accordance with the Federal Arbitration Act (or if not applicable,
the applicable state law), and the rules of practice and procedure for the
arbitration of commercial disputes of J.A.M.S./Endispute, or any successor
thereto, as supplemented by any special rules set forth in any of the Loan
Documents. Judgment upon any arbitration award may be entered in any court
having jurisdiction. Any party to this Agreement may bring an action, including
a summary or expedited proceeding, to compel arbitration of any controversy or
claim to which this Agreement applies in any court having jurisdiction over such
action. Nothing in this arbitration provision shall be deemed to (i) limit the
applicability of any otherwise applicable statutes of limitation or repose and
any waivers contained in this Agreement or any Loan Document; or (ii) be a
waiver by Lender of the protection afforded to it by 12 U.S.C. ss. 91 or any
substantially equivalent state law; or (iii) limit the right of Lender hereto
(a) to exercise self help remedies such as (but not limited to) setoff, or (b)
to foreclose against the collateral, or (c) to obtain from a court provisional
or ancillary remedies such as (but not limited
32
to) injunctive relief, writ of possession or the appointment of a receiver.
Lender may exercise such self help rights, foreclose upon such property, or
obtain such provisional or ancillary remedies before, during or after the
pendency of any arbitration proceeding brought pursuant to this Agreement or any
Loan Document. Neither this exercise of self help remedies nor the institution
or maintenance of an action for foreclosure or provisional or ancillary remedies
shall constitute a waiver of the right of any party, including the claimant in
any such action, to arbitrate the merits of the controversy or claim occasioning
resort to such remedies.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed under seal as of the day and year first above written.
LENDER BORROWER
------ --------
REGIONS BANK MOUNT VINTAGE PLANTATION GOLF CLUB, LLC
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------- --------------------------
Xxxxx Xxxxxxxx Xxxxxx X. Xxxxxxxxx
Vice President As its Manager
(Corporate Seal)
By: /s/ Xxxxxxxx Xxxxxx
-------------------
Xxxxxxxx Xxxxxx
As its Manager
(Seal)
GUARANTORS
----------
/s/ Xxxxxx X. Xxxxxxxxx (L.S.)
----------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxxxx Xxxxxx (L.S.)
-------------------------
33
