EXHIBIT 10.31
LOAN AGREEMENT
THIS LOAN AGREEMENT dated the 12 day of November, 1996, is between V.I. CEMENT
AND BUILDING PRODUCTS, INC., a Delaware corporation qualified to do business in
the U.S. Virgin Islands, whose mailing address is 0000 X. Xxxxxxx Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxx Xxxxx, Xxxxxxx 00000 (hereinafter referred to as the
"Borrower"), and BANCO POPULAR DE PUERTO RICO, a commercial banking institution
having a mailing address of X.X. Xxx 0000, Xx. Xxxxxx, X.X. Xxxxxx Xxxxxxx 00000
(hereinafter referred to as the "Bank").
WITNESSETH:
1. REPRESENTATIONS. As an inducement to the Bank to enter into this Agreement
and to lend under the terms hereof, the Borrower represents, covenants and
warrants to the Bank that:
1.1 CORPORATE EXISTENCE AND POWER. The Borrower is a corporation duly
organized, validly existing and in good standing under the laws of Delaware and
is qualified to do business and in good standing under the laws of the U.S.
Virgin Islands and has the corporate power to make this Agreement and to borrow
hereunder.
1.2 CORPORATE AUTHORITY. The making and performance by the Borrower of
this Agreement has been duly authorized by all necessary corporate action and
will not violate any provision of law or of its Articles of Incorporation or
Bylaws or result in the breach of, or constitute a default under, or, except as
hereinafter provided, result in the creation of any lien, charge or encumbrance
upon any property or assets of the Borrower pursuant to any indenture or bank
loan or credit agreement, or other agreement or instrument to which the Borrower
is a party or by which the Borrower or its property may be bound or affected.
1.3 FINANCIAL CONDITION. The most recent balance sheet and income
statement of the Borrower, and other related information, heretofore furnished
to the Bank, are complete and correct and fairly present the financial condition
of the Borrower and the results of operations for the period(s) specified
therein. To the best of the Borrower's knowledge and belief, the Borrower has no
contingent obligations, liabilities for taxes, or unusual forward or long term
commitments, except as herein specifically mentioned, not disclosed by, or
reserved against, in said balance SHEET, AND, AT THE PRESENT time, there are no
material unrealized or anticipated losses from any unfavorable commitments of
the Borrower. Said financial statements have been prepared in accordance with
generally accepted accounting principles and practices consistently maintained
by the Borrower throughout the period involved. Since the dates of such
financial statements, and SINCE THE date of the other financial information
provided to the Bank, there have been no material adverse changes in the
financial condition of the Borrower from that set forth in said balance sheet or
in said other financial information as of the date hereof, and no dividends or
other distributions have been declared or paid or made to its stockholders.
1.4 LITIGATION. Except as Bank has been advised in writing, there are
no suits or proceedings pending, or, to the knowledge of the Borrower,
threatened, against or affecting the Borrower which, if adversely determined,
would have a material adverse effect on the financial condition or business of
the Borrower. Except as the Bank has been advised in writing, there are no
proceedings by or before any governmental commission, bureau or other
administrative agency pending, or to the knowledge of the Borrower threatened,
against the Borrower.
1.5 TITLES: LIENS. The Borrower has exclusive good and marketable
title to each of the fixed properties and assets reflected in its balance sheet
free and clear of all mortgages, liens and encumbrances, except (a) liens, if
any, for current taxes, assessments and governmental charges not delinquent or
whose
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validity is being contested at the time in good faith and by appropriate
proceedings, and covenants, restrictions, rights, easements, liens, encumbrances
and minor irregularities in title which, in its opinion, do not and will not
interfere with the occupation, use and enjoyment of such properties and assets
in the normal course of business as presently conducted or planned or materially
impair the value of such properties and assets for the purpose of such business,
(b) mortgages, liens and encumbrances in favor of the Bank, and (c) mortgages,
liens and encumbrances in favor of third parties of which the Bank has been
advised in writing and approved by the Bank.
1.6 GOVERNMENTAL LICENSES AND PERMITS. The Borrower possesses all
licenses and permits necessary for the operation of its business without
substantial known conflict with the rights of others.
1.7 ENVIRONMENTAL COMPLIANCE. The Borrower has duly complied with and
Borrower's business operations, assets, equipment, property, leaseholds and
other facilities are in compliance with the provisions of all federal, state and
territorial environmental, health, and safety laws, codes and ordinances, and
all rules and regulations promulgated thereunder. The Borrower has been issued
and will maintain all required federal, state and territorial permits, licenses,
certificates, and approvals relating to (1) air emissions, (2) discharges to
surface WATER or groundwater, (3) noise emissions, (4) solid or liquid waste
disposal, (5) the use, generation, storage, transportation or disposal of toxic
or hazardous substances or wastes (intended hereby and hereafter to include any
and all such materials listed in any federal, state or territorial law, code or
ordinance, and all rules and regulations promulgated thereunder, as hazardous or
potentially hazardous, or (6) other environmental, health, or safety matters.
The Borrower has received no notice of, and neither knows of nor suspects, facts
which might constitute any violation of any federal, state or territorial
environmental, health, or safety laws, codes or ordinances, and any rules or
regulations promulgated thereunder with respect to the Borrower's business,
operations, assets, equipment, property, leaseholds, or other facilities. Except
in accordance with a valid governmental permit, license, certificate or
approval, there has been no emission, spill, release, or discharge into or upon
(1) the air, (2) soils or any improvements located thereon, (3) surface water or
groundwater, or (4) the sewer, septic system or waste treatment, storage or
disposal system servicing any of the Borrower's properties, of any toxic or
hazardous substances or wastes at or from any of the Borrower's properties; and
accordingly, except for inventory of raw materials, supplies, work in progress
and finished, that are to be used or sold in the ordinary course of business,
the Borrower's properties are free of all such toxic or hazardous substances or
wastes. There has been no complaint, order, directive, claim, citation, or
notice by any governmental authority or any person or entity with respect to (1)
air emissions, (2) spills, releases, or discharges to soils or improvements
located thereon, surface water, groundwater or the sewer, septic system or waste
treatment, storage or disposal systems servicing any of the Borrower's
properties, (3) noise emissions, (4) solid or liquid waste disposal, (5) the
use, generation, storage, transportation, or disposal of toxic or hazardous
substances or waste, or (6) other environmental, health, or safety matters
affecting the Borrower or Borrower's business, operations, assets, equipment,
property, leaseholds, or other facilities. The Borrower has no indebtedness,
obligation or liability, absolute or contingent, matured or not matured, with
respect to the storage, treatment, cleanup, or disposal of any solid wastes,
hazardous wastes, or other toxic or hazardous substances (including without
limitation any such indebtedness, obligation or liability with respect to any
current regulation, law or statute regarding such storage, treatment, cleanup,
or disposal), which has not been previously disclosed to the Bank in writing.
1.8 ENFORCEABILITY. This Agreement, the Notes (as defined in Section
2.4), security instruments (as defined in Section 3) and other documents
provided to the Bank in connection with the Loan and executed or to be executed
simultaneously herewith (collectively referred to herein as the "Loan
Documents")
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are the legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms.
2. THE AGREEMENT TO LEND.
2.1 THE LOAN.
2.1.1 AMOUNTS. The Bank agrees, on the terms and conditions of this
Agreement, to extend to the Borrower the following credit facilities in the
aggregate maximum principal amount of SEVEN MILLION DOLLARS ($7,000,000.00),
(the "Loan"), which the Borrower hereby accepts.
2.1.1.1 a term loan (the term Loan") in the principal sum of SIX
MILLION DOLLARS ($6,000,000.00);
2.1.1.2 a revolving line of credit (the "Line of Credit") in an
aggregate principal amount at any one time outstanding of up to but not
exceeding ONE MILLION DOLLARS ($1,000,000.00).
2 1.2 TYPES.
2.1.2.1 THE TERM LOAN. The Term Loan shall be a six (6) year
installment loan payable in seventy-two (72) monthly payments of principal and
interest as hereinafter provided.
2.1.2.2. THE LINE OF CREDIT. The Line of Credit is a revolving credit
(i.e., a credit which may be used repeatedly up to the limit, and for the time
specified, after partial or total repayments have been made) in the aggregate
maximum principal amount thereof (i.e., ONE MILLION DOLLARS ($1,OOO,OOO.OO),
subject to annual review and annual re-approval by the Bank. Accordingly, the
Borrower may, at any time, and periodically from time to time, from the date
hereof and until revoked by the Bank, draw against this credit, on a revolving
basis, in accordance with the terms and provisions of this Agreement, and may,
at any time, and periodically from time to time, during said period, reborrow,
likewise on a revolving basis, the whole or any part or parts of the principal
sum or sums so drawn, to the end that the said REVOLVING CREDIT SHALL CONTINUE
to be available to, and may be used repeatedly by, the Borrower, during said
period, on a revolving basis, up to the said principal sum of ONE MILLION
DOLLARS ($l,000,000.00) at any one time outstanding, notwithstanding the fact
that such partial or total repayments, if any, have been, or will be, from time
to time made.
2.1.2.2.1 ANNUAL REVIEW AND REAPPROVAL. On July 1, 1997, and on each
subsequent anniversary of said date, the Line of Credit is subject to annual
review and approval by the Bank. The Bank shall review the history of the
Borrower's use of the Line of Credit and the terms, provisions and outstanding
balance of the Line of Credit, together with the financial statements of the
Borrower and Guarantor (as defined in Section 5.2), and such other documents and
information as the Bank deems necessary or desirable for the purpose of
determining whether the Line of Credit should be renewed, extended, modified or
terminated. A condition of such approval shall be the absence of any material
adverse change in prevailing economic conditions and/or in the Borrower's or
Guarantor's financial condition. The Bank shall have the right, in ITS SOLE
DISCRETION, to make such a determination and shall advise the Borrower in
writing of any decision to renew, extend or modify the Line of Credit and of the
conditions of such renewal, extension or modification, if any.
2.1.2.2.2 ANNUAL CLEAN UP. The Borrower agrees that for a period of
thirty (30) consecutive days during each twelve (12) MONTH PERIOD hereafter the
Borrower shall have repaid to the Bank all funds drawn under the Line of Credit
and THERE SHALL BE NO REVOLVING CREDIT outstanding under this Agreement.
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2.2 PRINCIPAL REPAYMENT OF TERM LOAN. The Borrower shall repay the
principal amount of the Term Loan to the Bank in seventy-two consecutive monthly
installments as follows: (i) seventy-one (71) consecutive monthly installments
of EIGHTY THREE THOUSAND THREE HUNDRED THIRTY FOUR AND 00/100 DOLLARS
($83,334.00) each, plus interest accrued to time of payment; and (ii) a seventy
second (72nd), final installment of the principal then outstanding plus accrued
but unpaid interest on the unpaid principal balance, commencing on the first day
of the first full month following the date hereof and continuing on the first
day of each subsequent month. All payments shall be applied first to late
charges, if any, second to accrued interest and the remainder to the outstanding
principal balance.
2.3 INTEREST. The Term Loan and the Line of Credit shall both bear
interest at a rate per annum equal to one percent (1%) above the prime rate as
it varies (any change in interest resulting from the change in the prime rate to
be effective at the beginning of the day on which such change in the prime rate
is announced). The term "prime rate" as used herein means that rate of interest
from time to time announced by The Chase Manhattan Bank, N.A. at its principal
offices in New York, New York as its commercial loan prime rate. Interest shall
be calculated daily on a three hundred sixty (360) day basis at the rate
hereinabove set forth. Interest on the Line of Credit shall be calculated daily
on the principal sums advanced and outstanding and shall be due and payable
monthly by invoice to Borrower. Interest accrued on the Term Loan at the rate
hereinabove specified shall be due and payable on the first day of each month
together with each monthly principal installment payment as described in
paragraph 2.2 above, provided however, that interest accrued from the date
hereof to the first day of the first full month following the date hereof shall
be due and payable on such first day of such first full month.
2.4 THE NOTES.
2.4.1 THE TERM LOAN NOTE AND REVOLVING CREDIT NOTE. The Term Loan shall
be evidenced by an installment note in the amount of the Term Loan and dated the
date hereof, due and payable to the order of the Bank as herein and therein
provided (the "Installment Note"). The Line of Credit shall be evidenced by a
Revolving Credit Note of the Borrower dated the date hereof and payable to the
order of the Bank as herein and therein set forth in the principal sum of the
Line of Credit to cover the Line of Credit or so much thereof as shall be
outstanding from time to time (the Revolving Credit Note"). The said principal
sum together with all accrued and unpaid interest shall be due and payable in
full ON DEMAND at the office of the Bank in Charlotte Amalie, St. Xxxxxx, U.S.
Virgin Islands, or at such other place as the holder may, from time to time,
designate in writing. (The "Installment Note" and the "Revolving Credit Note"
are collectively referred to hereinafter as the Notes").
2.5 PURPOSE. The Loan shall be made by the Bank to enable the Borrower
to refinance the following existing debts, to provide the Borrower with working
capital and to pay the costs associated with the Loan:
$3,600,000.00 - To repay outstanding debt owned to Banco Popular de
Puerto Rico. This includes two (2)Lines of Credits,
numbers 1145029-9007 and 1145029-9006 with
outstanding balances of $1,980,000.00 and
$400,000.00 respectively. Also included are three
(3) Term Loans in the name of the Borrower and one
(1) Term Loan in the name of Devcon International
Corporation, the Guarantor of the Loan. The
outstanding balances of loan numbers 1145029-9005,
1145029-9002, 1145029-9001 and 11442869002 are
$16,676.00, $333,300-00, $600,000.00 and
$255,554.00 respectively;
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$1,800,000.00 - To repay existing debt owed to Xxxxxxx Bank of
Broward County, N.A.;
$ 100,000.00 - To repay outstanding debt owed to Barclay's Bank;
$1,000,000.00 - An advised Line of Credit to be used for working
capital; and
$ 500,000.00 - to be used for working capital and costs
associated with this transaction;
The proceeds of the Loan may not be used for any other purpose without the prior
written consent of the Bank.
3. SECURITY. Repayment of the Loan and the Borrower's obligations hereunder
shall be secured pursuant to the terms of the following agreements satisfactory
in form and substance to the Bank and its counsel (hereinafter collectively
referred to as the "Security Instruments"):
3.1 FIRST PRIORITY MORTGAGE. A first priority mortgage, in the amount
of the Loan, granting to the Bank a first priority lien over the following
properties located in St. Croix, U.S. Virgin Islands (the St. Croix
Properties"), in which Borrower has a fee simple interest:
Xxxx Xx. 0 xxx Xxxx Xx. 0 Xxxxxx Xxxxxxxxxxx
Xxxx. No. 11 Prince Quarter
St. Croix, Virgin Islands
as more fully described on PWD Drawing No. 2279 dated 12/14/67
and
Reminder of Parcel No. 2 of Estate Springfield
Prince Quarter
St. Croix, Virgin Islands
as shown on PWD Drawing No. 1915 dated 5/28/66
and
Parcel Xx. 0 xx Xxxxxx Xxxxxxxxxxx
Xx. Xxxxx, Xxxxxx Xxxxxxx
as shown on PWD Drawing No. 968 dated 9/8/60
and
Xxxx Xx. 000 Xxxxxx Xxxxx Xxxxx
Xx. Xxxxx, Xxxxxx Xxxxxxx
as shown on PWD Drawing No. 304-0, dated 5/4/60
and
Xxxx Xx. 00 of Parcel No. 2 Estate Plessens
Register No. 12a Prince Quarter
St. Croix, Virgin Islands
as shown on PWD No. 1390 revised 11/27/72
as revised November 27, 1972
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and
] Xxxx Xx. 0 xxx Xxxx Xx. 0X xx Xxxxxx Montpellier
(subdivided from Parcel Xx. 0 Xxxxxx Xxxxxxxxxxx)
Xxxx. No. 12-B Prince Quarter
St. Croix, Virgin Islands
as shown on PWD Drawing No. 1390, revised 11/ 27/72
and
A Charge, in the amount of the Loan, granted by Tortola Concrete Products
Limited (the "Charger") to the Bank as Chargee granting the Bank a lien over the
following property located in Tortola, British Virgin Islands, in which Charger
has a fee simple interest:
Xxxxx Xxxx, Xxxxx 0000X, Xxxxxx 2
3.2 FIRST PRIORITY LEASEHOLD MORTGAGES. A first priority leasehold
mortgage, in the amount of the Loan (the "Mariendahl Leasehold Mortgage")
granting to the Bank a first priority lien over the Borrower's leasehold
interest in a Lease Agreement dated July 30, 1991 between Xxxx Properties, Inc.,
as lessor and the Borrower as lessee (the "Estate Mariendahl Lease") pursuant to
which the Borrower possesses the property and improvements known as:
Parcels No. 6 Estate Mariendahl
Western Section
No. 4 Red Hook Quarter
St. Xxxxxx, U.S. Virgin Islands
and
A first priority leasehold mortgage, in the amount of the Loan (the "Crown Bay
Leasehold Mortgage") granting to the Bank a first priority lien over the
Borrower's leasehold interest in a Lease Agreement dated December 29, 1992
between the Virgin Islands Port Authority, as lessor and the Borrower as lessee
(the "Estate Crown Bay Lease") pursuant to which the Borrower possesses the
property and improvements known as:
Parcel Xx. 000-0 Xxxxx Xxx Xxxxxxxx
Subbase
St. Xxxxxx, U.S. Virgin Islands
(the St. Croix properties described above along with the properties covered by
the Mariendahl Leasehold Mortgage and the Crown Bay Leasehold Mortgage are
collectively referred to hereinafter as the "Mortgaged Property"), together with
valid consents from the respective lessors.
3.3 ASSIGNMENT OF LEASE AND ESTOPPEL CERTIFICATE. A valid assignment of
each of the above referenced leases (the Assignment of Lease"), together with a
valid consent thereto and estoppel certificate from the lessor of each such
lease.
3.4 ASSIGNMENT OF CERTIFICATES OF DEPOSIT AND PLEDGE AGREEMENT. The
Borrower shall have executed and delivered to the Bank (i) an Assignment of
Certificate of Deposit No.00001626746-30131104514 and No.
00001626746-30131104515 both in the face amount of $226,929.53, and (ii) a
Pledge Agreement, issued in the name of the Borrower and given to secure the
Loan.
3.5 SECURITY AGREEMENT. The Borrower is to submit to the Bank a
complete listing of the Borrower's assets and the lien position of each asset.
The Borrower shall have executed and delivered to the Bank a Security Agreement
and corresponding financing statement (Form UCC-1) satisfactory in form and
substance
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to the Bank and its counsel, granting to the Bank a perfected SECURITY INTEREST
in all assets owned by the Borrower wherever located and however held including,
but not limited to, all INVENTORY, MACHINERY, equipment, furniture, fixtures,
accounts, accounts receivable, contracts, contract rights, intangibles, all
other personal property and all accessions, products and proceeds of the
foregoing. All personalty, acquired by the Borrower after the Closing of this
Loan, and during the term of the Loan, for the operation of the Borrower's
business, shall immediately thereupon be subject to the lien of the Security
Agreement as additional collateral security for the Loan. The Borrower shall
promptly notify the Bank of each such acquisition, including a description of
the property acquired, the cost of such property and the quantity or amount
acquired. The Borrower SHALL PROMPTLY thereafter, as the Bank requests, execute
and deliver to the Bank any documents or instruments deemed necessary or
convenient by the Bank or its counsel to perfect a valid lien on such property.
3.6 ASSIGNMENT OF NOTE RECEIVABLES. A valid Deed of Assignment
respecting note receivables, contract rights and proceeds, including accrued
interest thereon, due Guarantor Devcon International Corp. from the Government
of Antigua and Barbuda.
3.7 FLOATING CHARGE AND DEBENTURE ON BRITISH VIRGIN ISLAND ASSETS.
Tortola Concrete Products Limited, an affiliate of Borrower, shall execute
appropriate and enforceable documents to confirm the Bank's floating charge and
debenture on all of Borrower's assets and that of its affiliates in the British
Virgin Islands.
3.8 UNCONDITIONAL AND UNLIMITED CORPORATE GUARANTY. The Bank shall have
received the unconditional and unlimited guaranty of Devcon International Corp.
(the "Guarantor") guaranteeing repayment of the Loan, the Borrower's obligations
under this Agreement, the Notes and the Security Instruments securing the Notes.
4. CONDITIONS OF LENDING. The obligation of the Bank to make the Loan is subject
to the following conditions precedent:
4.1 APPROVAL OF BANK COUNSEL. All legal matters incident to the
transactions hereby contemplated shall be satisfactory to counsel for the Bank.
4.2 PROOF OF CORPORATE ACTION BY BORROWER AND GUARANTOR. The Bank shall
have received certified copies of all corporate action taken by the Borrower and
Guarantor to authorize the execution and delivery of this Agreement, the Notes
the Security Instruments and the borrowing hereunder, and such other papers as
the Bank shall reasonably request.
4.3 LOAN FEES. As its fees for both the Term Loan facility and the Line
of Credit, the Bank shall receive from the Borrower a non-refundable origination
fee in the amount of Seventy Thousand and 00/100 Dollars ($70,000.00) and an
application fee of Three Hundred and 00/100 Dollars ($300.00).
4.4 GOVERNMENTAL LICENSES AND PERMITS. The Bank shall have been
provided with copies of all licenses and permits necessary for the operation of
the Borrower's business.
4.5 SUBORDINATION OF SHAREHOLDERS' LOANS. All shareholders shall have
executed and delivered to the Bank a subordination agreement, satisfactory in
form and substance to the Bank and its counsel, subordinating their shareholder
loans in the amount of approximately $4.9 million outstanding to the Loan.
4.6 INSURANCE. The Bank shall have received evidence of insurance
coverage for the full insurable value of all of the property to be pledged as
security for the Loan naming Banco Popular de Puerto Rico as Mortgagee/Loss
Payee. Said policy is to cover all risks of loss or damage to all properties,
real and personal, by fire, earthquake, the hazards covered by extended coverage
endorsements, and such
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other insurable hazards as the Bank may require, including flood damage
insurance if it is determined that the properties to be pledged as security for
the Loan are in a federal flood hazard zone.
Insurance coverage must be provided by a COMPANY WITH A current rating
by A.M. Best & Co. of 3 or better. In the case the issuing company does not have
a satisfactory rating, the policy must have a cut-through endorsement and the
reinsuring company(s) must have a current rating by A.M. Best & Co. of B+ or
better.
4.7 OPINION OF COUNSEL FOR THE BORROWER AND GUARANTOR. The Bank shall
have received from counsel for the Borrower and the Guarantor a favorable
opinion dated the same date hereof addressed to the Bank and satisfactory in
scope and form to the Bank and its counsel, covering the following matters.
(a) BORROWER. The Borrower is duly incorporated, validly
existing and in good standing under the laws of Delaware and the U.S. Virgin
Islands, has the legal capacity and authority to own real property and other
property to the extent required to properly and adequately conduct its business
and that no part of this transaction violates any restriction, term, condition
or provision of the Borrower's Articles of Incorporation or Bylaws.
(b) LOAN AGREEMENT. This loan agreement has been duly
authorized, executed and delivered by the Borrower and constitutes A LEGAL,
VALID and binding obligation as may be limited by bankruptcy, insolvency,
moratorium, reorganization and similar laws generally affecting the rights of
creditors and by principles of equity.
(c) NOTES. The Notes have been duly authorized, executed and
delivered by the Borrower and constitute legal, valid and binding instruments,
enforceable in accordance with their TERMS, EXCEPT as may be limited by
bankruptcy, insolvency, moratorium, reorganization and other laws generally
affecting the rights of creditors and by principles of equity.
(d) SECURITY INSTRUMENTS. The Security Instruments have been
duly authorized, executed and delivered by the Borrower or the Guarantor, as the
case may be, and constitute legal, valid and Guarantor. The Bank shall have
received from counsel for the Borrower and the Guarantor a favorable opinion
dated the same date hereof addressed to the Bank and satisfactory in scope and
form to the Bank and its counsel, covering the following matters.
(e) GUARANTY. The guaranty of the Guarantor has been duly
executed and delivered by the Guarantor and constitutes a legal, valid and
binding instrument, enforceable in accordance with its terms, except as may be
limited by bankruptcy, insolvency, moratorium, reorganization and other laws
generally affecting the rights of creditors and by principles of equity.
(f) REMEDIES. The remedies contained within all the loan
documents are effective under the laws of the U.S. Virgin Islands in order to
expedite the collection of the Loan and/or foreclosure upon default under the
terms of the Loan Documents.
4.8 TITLE INSURANCE. The Bank shall have received A COMMITMEnt for
TITLE insurance issued by a title company satisfactory to the Bank, dated the
date of this Agreement and satisfactory in substance and form to the Bank and
its counsel, stating that the title to the Mortgaged Property or possession of
the leasehold premises as the case may be, is vested in the Borrower, and
insuring the interest of the Bank as holder of a first priority mortgage(s) and
leasehold mortgage(s) on the Mortgaged property with no exceptions other than
(i) a lien for real estate taxes not yet due and payable, and (ii) such other
exceptions acceptable to the Bank and its counsel.
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4.9 AS-BUILT SURVEY. The Bank shall have received two (2) copies of a
current as-built survey of the Mortgaged Property together with an A.L.T.A.
certification and Surveyor's Report, satisfactory in substance and form to the
Bank and the title insurer, showing all easements, encroachments, rights-of-way,
roads, alleyways, paths, and set-backs and such other matters as REVEALED by
inspection and survey of the Mortgaged Property, and shall clearly indicate all
monuments and other controls relied upon by the surveyors. All of the foregoing
shall be sufficient to delete the standard survey exception in the commitment
for title insurance provided for in Section 4.8.
4.10 APPRAISAL. The Bank shall have received an updated appraisal
report indicating that the Mortgaged Property with improvements has a current
fair market value satisfactory to the Bank.
4.11 REAL ESTATE TAXES. The Bank shall have received a Certificate of
Real Property Tax Status from the Treasury Division, Department of Finance,
showing that there are no taxes owed on the Mortgaged Property, together with
copies of the paid receipts for the 1992, 1993, 1994 and 1995 real property
taxes.
4.12 TAX CLAUSE. The Borrower shall have furnished or cause to be
furnished, evidence to the effect that all taxes, assessments, and governmental
charges lawfully levied and assessed against it and the Guarantor have been
fully satisfied.
4.13 LANDLORD'S CONSENT TO FIRST PRIORITY LEASEHOLD MORTGAGE AND
ESTOPPEL CERTIFICATE. The Bank shall have received a validly executed Consent to
First Priority Leasehold Mortgage and Estoppel Certificate from the Borrower's
landlords respecting each of the leasehold parcels described above and included
within the Mortgaged Property, satisfactory in form and substance to the Bank
and its counsel, consenting to the Borrower's execution and the recording of the
First Priority Leasehold Mortgage and stating that the Borrower is not in
default under the terms of its leasehold interests.
4.14 CONSENT TO ASSIGNMENT OF LEASE AND ESTOPPEL CERTIFICATE. The Bank
shall have received a validly executed Consent to Assignment of Lease and
Estoppel Certificate from the Borrower's landlord respecting each of the
LEASEHOLD PARCELS described hereinabove in paragraph 3.2, in form and substance
satisfactory to the Bank and its counsel, consenting to the Borrower's execution
and the recording of the Assignment of Lease and stating that the Borrower is
not in default under the to terms of its lease.
4.15 LEASE OF BUSINESS PREMISES. The Bank shall have been provided with
a certified copy of each of the leases described above and any extensions or
renewals thereof, which shall provide for a term with options to extend, for a
period of not less than the life of this Loan.
4.16 ZONING. The Bank shall have received written evidence to the
effect that the Mortgaged Property has been zoned for the purposes consistent
with the uses contemplated beyond any possibility of appeal and to the effect
that there is no pending proceeding either administrative, legislative or
judicial, which would in any manner adversely affect the status of the zoning
with respect to the Mortgaged Property or any part thereof.
4.17 OTHER DOCUMENTATION. The Bank shall have received from the
Borrower such other items required to be provided by the Borrower or on its
behalf as may be set forth on the Closing Agenda utilized by the Bank and the
Borrower to close the Loan, but not otherwise specifically referred to herein.
5. AFFIRMATIVE COVENANTS. The Borrower agrees that so long as credit shall
remain available hereunder and until payment in full of the Notes, unless the
Bank shall otherwise consent in writing it will:
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5.1 APPLICATION OF LOAN PROCEEDS. Apply the proceeds of the Loan
solely for the specific purposes agreed to herein.
5.2 FURNISH FINANCIAL STATEMENTS. Furnish the Bank, or caused to be
furnished annually to the Bank, (a) within ninety (90) days after the end of
each fiscal year of the Borrower, in such form as is acceptable to the Bank, (i)
the audited annual financial statements of the Borrower, prepared by independent
certified public accountants acceptable to the Bank, (ii) the income tax returns
of the Borrower and the Guarantor, (iii) the financial statements of the
Guarantor, and (iv) the 10-K and quarterly 10-Q reports submitted by Borrower to
the SEC, and (b) such further information regarding the business affairs and
financial condition of the Borrowers at such times, in such form and in such
manner, prepared by such persons as are acceptable to the Bank. The financial
statements must reflect a financial net worth satisfactory to the Bank.
5.3 PAYMENT OF TAXES. Pay and discharge or cause to be paid and
discharged (a) all taxes, assessments and governmental charges or liens imposed
upon Borrower or upon any property belonging to Borrower, prior to the date on
which penalties attach thereto, and (b) all lawful claims which, if unpaid,
might become a lien or charge upon the property of the Borrower; provided, that
the Borrower shall not be required to pay any such tax, assessment, charge, levy
or claim the payment of which is being contested in good faith and by proper
judicial or administrative proceedings.
5.4 REAL PROPERTY TAXES. Pay or caused to be paid all real property
taxes on the Mortgaged Property and submit to the Bank evidence of such
payments.
5.5 WORKERS' COMPENSATION. Pay or cause to be paid to the Commissioner
of Finance workers' compensation premiums for all employees of the Borrower, and
submit to the Bank upon payment evidence of said payments and insurance
coverage;
5.6 INSPECTION AND MAINTENANCE. Allow the Bank or its duly authorized
representatives to inspect the books, records, assets, property, and operations
of the Borrower at any reasonable time on reasonable notice and maintain said
books, records, assets, property and operations of the Borrower to the
satisfaction of the Bank. "Reasonable notice" shall mean five (5) days for
purposes of this paragraph.
5.7 NOTICE OF LITIGATION. Promptly give notice in writing to the Bank
of all litigation and of all proceedings by or before any governmental
regulatory agency, against or affecting the Borrower or the Guarantor, where the
amount involved is in excess of $100,000.00 or which, if adversely determined,
would otherwise have a material adverse effect on the financial condition or
business of the Borrower or the Guarantors.
5.8 INSURANCE.
(a) Maintain, or cause to be maintained, with a financially
sound and reputable insurance company doing business in the U.S. Virgin Islands
and acceptable to the Bank, public liability and indemnity insurance,
satisfactory in form and substance to the Bank and its counsel, and in limits
approved by the Bank, covering the Borrower against the risks of third party
property damage and personal injury liability.
(b) Maintain, or cause to be maintained, with a financially
sound and reputable insurance company acceptable to the Bank, special
multi-peril insurance coverage including fire and extended coverage, casualty,
vandalism and malicious mischief insurance on all of the Borrower's property,
real and personal, in such amounts as are acceptable to the Bank, but in no
event less than the full replacement cost of all improvements, inventory,
furniture, fixtures, machinery and equipment located in or on any of the
Borrower's business premises. The foregoing insurance policies shall contain an
endorsement, satisfactory to the
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Bank and its counsel, providing for payment to the Bank as mortgagee/loss payee
(as its interests may appear).
(c) Maintain, or cause to be maintained, with a financially
sound and reputable insurance company acceptable to the Bank, comprehensive
property insurance over the Mortgaged Property with the Bank named as
mortgagee/loss payee.
(d) Insurance coverage must be provided by an insurance
company with a current rating by A.M. Best & Co. of 3 or better and the
foregoing policies shall also provide that they may not be canceled, or the
amount(s) of coverage provided reduced, for any reasons until not less than the
thirty (30) days written notice shall have been given to the Bank of the
insurance company intention to cancel or reduce the amount(s) of coverage
provided under such policies during which time the Borrower shall REPLACE said
policies with new, substitute or successor policies to comply with the
requirements of this Section.
(e) If it is determined from the National Flood Insurance
Report that the Borrower's business premises or the Mortgaged Property are
located in designated flood prone areas, the Borrower shall maintain or cause to
be maintained Federal Flood Insurance up to the maximum amount available
covering such premises, and furnish the Bank with evidence of such insurance
naming the Bank as mortgagee/loss payee.
5.9 ENVIRONMENTAL COMPLIANCE. Be and remain in compliance with the
provisions of all federal, state, and local environmental, health, and safety
laws, codes and ordinances, and all rules and regulations issued thereunder;
notify the Bank immediately of any notice of a hazardous discharge or
environmental complaint received from any governmental agency or any other
party; notify the Bank immediately of any hazardous discharge from or affecting
its premises; immediately contain and remove the same, in compliance with all
applicable laws; promptly pay any fine or penalty assessed in connection
therewith; and at the Bank's request, and at the Borrower's expense, provide a
report of a qualified environmental engineer, satisfactory in scope, form, and
content to the Bank, and such other and further assurances reasonably
satisfactory to the Bank that the condition has been corrected.
5.10 DEPOSIT ACCOUNTS. Maintain or cause to be maintained all deposit
accounts of the Borrower and the Guarantors with the Bank.
5.11 SHAREHOLDER LOANS. Subordinate shareholder debt of approximately
$4.9 million outstanding, with a limit of $4.0 million with the provision that
for every $200 increase in retained earnings the subordinated debt will reduce
by $1.00 subject to the receipt of annual financial statements and 10-K report.
5.12 ACCOUNTS RECEIVABLE/INTERCOMPANY ADVANCES. Provide to the Bank
quarterly aging of accounts receivable and intercompany advances.
5.13 CREDIT CARD TRANSACTIONS. Process all merchant VISA, Mastercard
and Discover credit card business of the Borrower through the Bank.
5.14 MANAGEMENT COMPENSATION. Obtain the Bank's approval of the levels
of compensation that the Borrower proposes to pay its directors, officers,
managing partners, consultants and agents.
5.15 GUARANTOR'S COVENANTS. Devcon International Corp., the Guarantor
of this Loan, agrees to the following special conditions on a consolidated
basis, that it will not:
(a) Permit its debt (which shall include the total of its
liabilities, including short-term liabilities, deferred tax liabilities and all
other non-current liabilities to exceed sixty percent (60.0%) of its adjusted
net
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worth (net worth reduced by intangible assets such as GOOD will, that have
limited value in liquidation); or
(b) incur or report a net loss during any fiscal year; or
(c) permit current assets, at any one time to be less than
one and one-half (1.50) times current liabilities; or
(d) make any additional acquisition in excess of $500,000.00.
6. NEGATIVE COVENANTS. The Borrower agrees that so long as credit shall remain
available hereunder and until payment in full of the Notes, and all other credit
advanced by the Bank to the Borrower, without the prior written consent of the
Bank, it will not:
6.1 LIMITATION OF LIENS. Mortgage, pledge, hypothecate, assign,
transfer, suffer to exist, or voluntarily or involuntarily subject to any lien
or encumbrance to secure any indebtedness, any of the property or assets of the
Borrower, now owned or hereafter acquired: excluding, however, from the
operation of this covenant, liens, mortgages or encumbrances in favor of the
Bank.
6.2 LIMITATION ON INDEBTEDNESS. Create or incur any indebtedness or
obligation for borrowed money or issue or sell any obligations of the Borrower,
excluding, however, from the OPERATION of this covenant, the Loan hereunder or
other loans made by the Bank and trade payables and other indebtedness incurred
in the ordinary course of business.
6.3 CONTINGENT LIABILITIES. Assume, guarantee, endorse or otherwise
become liable upon the obligations of any person, firm or corporation except by
endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business.
6.4 CONSOLIDATION OR MERGER. Merge into or consolidate with or into any
corporation, partnership or other business entity. For the purposes of this
Section 6.4, the acquisition by the Borrower of all or substantially all of the
assets, together with the assumption of all or substantially all of the
obligations and liabilities, of any corporation or other entity shall be deemed
to be a consolidation of such corporation or other entity with the Borrower.
6.5 DISPOSITION OF ASSETS. Lend, sell, lease, transfer or otherwise
dispose of any of its assets Other than obsolete or worn-out property not used
or useful in its business), whether now owned or hereafter acquired, except in
the ordinary and regular course of the Borrower's business.
6.6 DIVIDENDS. Declare or pay any dividend or authorize or make any
other distribution on any shares of capital stock of the Borrower, whether now
or hereafter outstanding.
6.7 COMPENSATION AGREEMENTS. Permit the individual or aggregate
compensation (including salaries, BONUSES, COMMISSIONS and other forms of
remuneration) paid to officers, directors, managing partners, agents, employees
or consultants of the Borrower to exceed an amount satisfactory to the Bank and
which is reasonable and appropriate in relation to work performed or services
provided, and comparable to compensation paid by other companies of comparable
size engaged in a similar business as the Borrower in St. Xxxxxx, U.S. Virgin
Islands.
6.8 MODIFICATIONS TO LEASE. Amend, assign or terminate its leases or
sublet the leased property described in Section 3.2 hereof or enter into any new
agreement for the occupancy of such property on terms not acceptable to the
Bank.
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6.9 LOANS, ADVANCES INVESTMENTS. Purchase or otherwise acquire any
shares of stock or obligations of, or make or repay loans or advances to, or
make investments in, any individual, firm or corporation, including, without
limitation, any shareholder, director, officer, managing partner, agents or
employee of the Borrower, or any other person or persons related to the Borrower
in any way whatsoever.
6.10 BORROWER'S SHARES. Purchase, acquire, redeem, retire or issue, or
make any commitment to purchase, acquire, redeem, retire or issue, any of the
Borrower shares whether now or hereafter outstanding or consent to the transfer
of any such shares.
6.11 CHANGE OF BUSINESS. Effect, cause, or permit any change from the
business now conducted by the Borrower.
6.12 CAPITAL EXPENDITURES. Make any capital acquisitions in excess of
$500,000.00 or other investments or expenditures or commitments for fixed or
capital assets in any fiscal year in excess of the sum of amounts (i) reserved
for depreciation for such year plus (ii) contributed by the shareholders for
such purpose.
6.13 ISSUANCE OF STOCK OF BORROWER. Permit or consent to the issuance
of any further capital stock of the Borrower or the sale of any treasury stock.
7. EXPENSES. The Borrower agrees to pay all reasonable expenses (including legal
expenses and attorneys' fees and special counsel fees and disbursements
associated with collateralizing this Loan in the jurisdiction where the
collateral is located) payable in connection with the execution and delivery of
this Agreement and of the Notes, and the Security Instruments herein referred
to, as well as all expenses (including legal expenses and attorneys' fees) of
every kind incidental to the collection or enforcement of this Agreement, the
Notes and the other said Security Instruments.
8. EVENTS OF DEFAULT. If any one of the following "events of default" shall
occur:
8.1 any representation or warranty made by the Borrower or the
Guarantor to the Bank in the Notes, this Agreement or the Security Instruments
referred to herein, including the Charge and Debenture or any other instruments
executed in connection with the Loan proves to have been incorrect in any
material respect as of the date of this Agreement or as of the date on which it
is made, or any statement, certificate or data heretofore or hereafter furnished
by the Borrower or Guarantor to the Bank in connection with the application for
this Loan or in the administration of this Agreement proves to have been
incorrect in any material respect as of the date when the facts therein set
forth were stated or certified; or
8.2 default by the Borrower in the performance of any covenant or
agreement herein, or in the Security Instruments referred to herein, which shall
remain unremedied for fifteen (15) days after written notice thereof shall have
been given by the Bank: or
8.3 default by the Guarantor in the performance of any covenant or
agreement in the Guaranty which shall remain unremedied for fifteen (15) days
after written notice thereof shall have been given by the Bank; or
8.4 default in the due payment of the principal of the Notes, or
default in the payment of interest on the Notes, or of any other indebtedness,
which term shall be construed to mean any obligation or liability for borrowed
money, owing by the Borrower to the Bank now existing or hereafter incurred,
when the same shall be due; or
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8.5 a judgment for the payment of money shall be rendered against the
Borrower or the Guarantor and any such judgment shall remain unsatisfied and in
effect for any period of 60 consecutive days without a stay of execution; or
8.6 the Borrower or Guarantor shall (i) apply for or consent to the
appointment of a receiver, trustee or liquidator of the Borrower or Guarantor,
or of all or a substantial part of the assets of the Borrower or of the
Guarantor, (ii) be unable, or admit in writing, the inability to pay debts as
they mature, (iii) make a general assignment for the benefit of creditors; (iv)
be adjudicated a bankrupt or insolvent, or (v) file a voluntary petition in
bankruptcy or a petition or an answer seeking reorganization or an arrangement
with creditors or to take advantage of any insolvency law or an answer admitting
the material allegations of a petition filed against the Borrower or the
Guarantor in any bankruptcy, reorganization or insolvency law or an answer
admitting the material allegations of a petition filed against the Borrower or
the Guarantor in any bankruptcy proceeding, reorganization or insolvency
proceeding, or corporate action shall be taken by the Borrower or the Guarantor
for the purpose of effecting any of the foregoing; or
8.7 an order, judgment or decree shall be entered, without the
application, approval or consent of the Borrower, by any court of competent
jurisdiction, approving a petition seeking reorganization of the Borrower or
appointing a receiver, trustee or liquidator of the Borrower or of all or a
substantial part of the assets of the Borrower, and such order, judgment or
decree shall continue unstayed and in effect for any period of sixty (60)
consecutive days; or
8.8 the financial condition of the Borrower or the Guarantor, or the
physical condition of the Mortgaged Property, shall adversely change in any
material respect from the condition of any of the foregoing represented in the
information and documentation submitted by the Borrower in support of its
application for the Loan;
8.9 the Borrower shall default under either the Estate Mariendahl Lease
or the Estate Crown Bay Lease as described hereinabove and any cure period under
any such lease with respect to such default shall have expired; THEN the Bank
may by written notice to the Borrower (i) immediately terminate the commitments
of the Bank hereunder, and (ii) declare the principal of and interest accrued on
the Notes, and all other liabilities of the Borrower to the Bank to be forthwith
due and payable, whereupon the same shall become forthwith due and payable.
9 ENTIRE AGREEMENT: NO WAIVER EXCEPT AS INDICATED. The Borrower understands and
agrees that this Loan Agreement, along with Notes and Security Instruments
executed simultaneously herewith, constitute the entire agreement of the parties
with respect to the subject matter hereof, and supersede any and all prior
agreements, written or oral, among the parties concerning the subject matter
hereof (except that the Commitment Letter dated June 20, 1996 and executed by
the Borrower and Guarantor on June 28, 1996, the terms and provisions of which
are incorporated herein by this reference, shall survive the closing of the Loan
as set forth in Paragraph 17 of said Commitment Letter).
10. AMENDMENT TO LOAN AGREEMENT. This Loan Agreement may not be changed orally,
but only by an agreement in writing signed by both parties to this Loan
Agreement.
11. NO WAIVER: REMEDIES CUMULATIVE. No failure to exercise, and no delay in
exercising, any right hereunder 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.
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12. WAIVER OF RIGHT TO TRIAL BY JURY. THE BANK AND THE BORROWER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER OF TEEM MAY HAVE
TO A TRIAL BY JURY WITH RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT AND THE LOAN DOCUMENTS, AND/OR ANY
AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION THEREWITH, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS BY
ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE BANK'S PERFORMANCE
UNDER SAID AGREEMENT. FURTHER, THE BORROWER HEREBY CERTIFIES THAT NO
REPRESENTATIVE OR AGENT OF THE BANK, NOR THE BANK'S COUNSEL, HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE BANK COULD NOT, IN THE EVENT OF SUCH
LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. NO
REPRESENTATIVE OR AGENT OF THE BANK, NOR THE BANK'S COUNSEL HAS THE AUTHORITY TO
WAIVE, CONDITION, OR MODIFY THIS PROVISION.
13. DEFINITIONS.
13.1 Any accounting term used herein shall, unless the context
otherwise specifies, be defined as most commonly defined in accordance with
generally accepted accounting principles.
13.2 "Indebtedness" shall mean any obligation or liability for borrowed
money, howsoever evidenced, or any obligation represented by a promissory note.
14. CHANGE OF PARTIES. The Borrower will not assign this Agreement or any of the
monies due hereunder or convey or further encumber its assets or any part
thereof without the prior written consent of the Bank. In the event of any such
approved assignment, conveyance or encumbrance and if the Bank shall elect to
continue to make the Loan hereunder or any part thereof to the Borrower or its
successor or assignee, all sums so advanced shall be deemed advances under this
Agreement and not in modification hereof. In the event the Borrower shall part
with or in any manner be deprived of its title to its assets or any part thereof
in violation of this section, the Bank may, at its option, continue to make
advances under this Agreement and not in modification hereof. If the Borrower is
in default under this Agreement, or as a part of the sale, consolidation,
liquidation or merger of the Bank, the Bank may assign this Agreement and the
Notes and cause the assignee to make any advances not made at the time of the
assignment, in which event all of the terms hereof shall continue to apply to
the Loan, the Notes, the Security Instruments and any other documents entered
into pursuant to the Loan. All sums so advanced shall be deemed advances under
this Agreement and not in modification hereof.
15. NOTE. Any notice required herein shall be deemed to have been properly
served if sent by United States registered mail, postage prepaid, addressed to
the parties hereto at the addresses set forth above, or at such other address as
shall later be designated in writing.
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16. CONSTRUCTION. This Agreement is being executed in and shall be construed in
accordance with the laws of the United States Virgin Islands.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day
and year first above written.
V.I. CEMENT AND BUILDING PRODUCTS,INC.
By: /S/ XXXXXX X. XXXXXXX
-----------------------------------
Vice President
(SEAL)
Attest: /S/ XXXXXX X. XXXXXXXXX
-----------------------------------
Vice President
BANCO POPULAR DE PUERTO RICO
By:/S/ XXXXXXX XXXXX
-----------------------------------
Vice President
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