EXHIBIT b
LOAN AGREEMENT
THIS AGREEMENT, made as of the _____ day of November, 2000, by and between
DYNAMIC HOMES, LLC, a Minnesota limited liability company (the "Borrower"), and
XXXXXX BANK, NATIONAL ASSOCIATION, a national banking association (the
"Lender").
W I T N E S S E T H :
WHEREAS, the Borrower has requested and the Lender has agreed to make a term
loan to the Borrower in the amount of THREE MILLION FIVE HUNDRED THIRTY THOUSAND
SEVEN HUNDRED and NO/100 DOLLARS ($3,530,700) (the "Term Loan"); and
WHEREAS, the Lender is willing to lend such sum and to extend such credit to the
Borrower upon the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. DEFINITIONS. As used herein, the following terms shall have the following
meanings for the purpose of this Agreement and the documents related hereto
unless the context in which such term is used clearly require otherwise:
a. "Agreement" shall mean this Loan Agreement and all amendments and
supplements which may become effective hereafter.
b. "Debt" shall mean, collectively, all items which, in accordance with
generally accepted accounting principles, would be included in the
liability side of a balance sheet as at the date as of which Debt is to
be determined, excluding capital stock, surplus, capital and earned
surplus.
c. "Collateral" shall have the meaning given to such term in the
Security Agreement.
d. "Corporation" shall mean Dynamic Homes, Inc., a Minnesota
corporation.
e. "Event of Default" shall mean any and all events of default
described in Section 8.A. hereof.
f. "Leverage Ratio" shall mean the ratio, as of the date of
measurement, of Debt to Tangible Net Worth.
g. "Loan Documents" shall mean, collectively, this Agreement, the Note,
the Mortgage, the Security Agreement and all collateral documentation
related thereto.
h. "Mortgage" shall mean that certain third party mortgage, security
agreement, fixture financing statement and assignment of leases and
rents of even date herewith executed by the Corporation as mortgagor,
and delivered to the Lender, as mortgagee, pursuant to which the
Corporation has granted a first mortgage and security interest to the
Lender in and to the Real Property to secure, among other things, the
Borrower's obligations under the Loan Documents.
i. "Net Income" means for any specified period, the Borrowers' net
income for such period, as determined in accordance with generally
accepted accounting principles, consistently applied.
j. "Note" shall mean the term note of even date herewith, executed by
the Borrower and payable to the order of the Lender in the original
principal amount of $3,530,700.
k. "Obligations" shall mean the obligations of the Borrower to pay and
perform all of its promises, covenants and agreements under and
pursuant to the Note and all other Loan Documents.
l. "Real Property" shall mean the real property legally described in
the Mortgage.
m. "Security Agreement" shall mean that certain third party security
agreement of even date herewith executed by the Corporation as debtor
in favor of the Lender as secured party securing, among other things,
the Borrower's obligations under the Loan Documents.
n. "Tangible Net Worth" shall mean the sum of the par or stated value
of all outstanding capital stock, surplus, and undivided profits of the
Borrower, less any amounts attributable to treasury stock, good will,
patents, copyrights, mailing lists, catalogs, trademarks, bond
discount, underwriting expenses, organization expenses, and other like
intangibles (not including prepaid expenses classified as current
assets or intangible assets offset by equal related liabilities),
excluding also notes or loans due from officers, directors or
affiliates of the Borrower and excluding also Subchapter S earnings
unless these earnings are converted to notes and subordinated to bank
debt or the Lender is given written confirmation, in a form acceptable
to the Lender, that these earnings are being retained as equity
capital, all as determined in accordance with Generally Accepted
Accounting Principles, consistently applied.
o. "Working Capital" shall mean ______________________________________.
2. TERM LOAN. On the date hereof, the Lender has made the Term Loan to
the Borrower.
3. PROMISSORY NOTE. The obligation of the Borrower to repay the Term Loan is
evidenced by the Note. Reference is hereby made to the Note for the terms
thereof relating to maturity, repayment schedule, interest rate and other
matters governing the repayment of the loan made hereunder. The Lender's
records, absent manifest error, shall be conclusive evidence as to the amount of
the Term Loan which remains unpaid.
4. PAYMENT AUTHORIZATION. The Lender will have the right to pay accrued interest
or principal on the Note which is not paid as and when due, by debiting any
account of the Borrower at the Lender, without further authorization of the
Borrower.
5. CONDITIONS PRECEDENT. The Borrower shall have delivered to the Lender, prior
to the disbursement of the Term Loan, this Agreement and the following
documents, reports and related matters, duly executed (as applicable) by the
Borrower or the Corporation and in a form acceptable to the Lender:
a. The Note.
b. The Mortgage.
c. The Security Agreement.
d. UCC financing statements relating to the security interests
granted pursuant to the Mortgage and the Security Agreement.
e. Certified articles of organization of the Borrower, a
Certificate of Authority designating the representatives of
the Borrower who are authorized to execute the Loan Documents
to which the Borrower is a party and limited liability company
resolutions authorizing the loan transactions contemplated
hereby.
f. Certified articles of incorporation of the Corporation, a
Certificate of Authority designating the representatives of
the Corporation who are authorized to execute the Loan
Documents to which the Corporation is a party and corporate
resolutions authorizing the loan transactions contemplated
hereby.
g. UCC, judgment and state and federal tax lien searches, with
respect to the Borrower and the Corporation, duly certified to
a current date by the appropriate filing officer, from the
Secretary of State of Minnesota, the Xxxxxx County, Minnesota
County Recorder's office, and each and every other
jurisdiction in which the Borrower and the Corporation are
qualified to or are doing business or own assets.
h. An opinion of Borrower's and the Corporation's legal counsel
as to the due organization and good standing of the Borrower
and the Corporation, the due authorization, execution and
delivery by the Borrower and the Corporation, and validity and
enforceability, of the Loan Documents and other documents and
agreements contemplated or required hereby to which the
Borrower and/or the Corporation are a party, and as to such
other matters regarding the Borrower and/or the Corporation
and the transactions and documents contemplated hereby as the
Lender may request.
i. Certificates as to consummation of (i) the merger of Dynamic
Acquisitions, Inc., a Minnesota corporation and a wholly-owned
subsidiary of the Borrower with and into the Corporation, and
(ii) the acquisition the membership interests of the Borrower
by Xxxxx Xxxxxxxx and Xxxxxx Xxxxxxxxx, in the percentages set
forth on Exhibit B hereto.
j. An environmental questionnaire, appraisals of certain
equipment owned by the Corporation and of the Real Property
showing a value satisfactory to Lender, and an attorney's
title opinion that the Mortgage is a first lien and
encumbrance on the Real Property, all in form and substance
acceptable to the Lender in its sole and absolute discretion.
k. Such other documents, instruments, certificates, guaranties,
opinions or other matters as the Lender may require.
6. REPRESENTATIONS. In order to induce the Lender to make the Term Loan, the
Borrower hereby warrants, represents and certifies to the Lender as follows:
A. Existence, Power and Ownership Structure. The Borrower is a limited
liability company duly organized and validly existing under the laws of
the State of Minnesota, and is duly qualified to do business and is in
good standing in the State of Minnesota and in every other jurisdiction
wherein the nature of its business or the character of its properties
makes such qualification necessary and where failure to be so qualified
and in good standing would, in the aggregate, have a material adverse
effect on the business, properties, operations, assets, liabilities or
condition (financial or otherwise) of the Borrower, and has all
requisite power and authority to carry on its business as now conducted
and as presently proposed to be conducted. All of the membership
interests of the Borrower are owned as set forth on Exhibit B attached
hereto.
B. Authority. The Borrower has full power and authority to execute and
deliver this Agreement, the Note and the other Loan Documents to which
it is a party and to incur and perform its obligations hereunder and
thereunder; the execution, delivery and performance by the Borrower of
this Agreement, the Note, such other Loan Documents and any and all
other documents and transactions contemplated hereby or thereby, have
been duly authorized by all necessary limited liability company action,
will not violate any provision of law or the operating agreement or any
member control agreement of the Borrower or result in the breach of,
constitute a default under, or create or give rise to any lien under,
any indenture 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; and this Agreement, the Note and such other Loan Documents
have been executed and delivered to the Lender by the representatives
of the Borrower who have been authorized by the Borrower's members to
execute and so deliver such agreements.
C. Enforceability. This Agreement, the Note and the other Loan
Documents to which the Borrower is a party each constitute the legal,
valid and binding obligations of the Borrower enforceable in accordance
with their respective terms (subject, as to enforceability, to
limitations resulting from bankruptcy, insolvency and other similar
laws affecting creditors' rights generally and principles of equity).
D. Financial Condition. The financial statements and tax returns of the
Borrower dated as of and for the fiscal year ending _____________ ___,
20__ and the interim financial statement dated _____________ ___, 20__,
heretofore furnished to the Lender are complete and correct in all
respects and fairly present the financial condition of the Borrower, at
and as of the dates of such statements and returns and the results of
the Borrower operations for the period ended on said dates, and have
been prepared in accordance with generally accepted accounting
principles, consistently applied. Since the most recent set of
financial statements delivered by the Borrower to the Lender there have
been no material adverse changes in the financial condition of the
Borrower.
E. Litigation. There is no action, suit or proceeding pending or, to
the knowledge of the Borrower, threatened against or affecting the
Borrower, or any basis therefor, which, if adversely determined, would
have a material adverse effect on the condition (financial or
otherwise), business, properties or assets of the Borrower or which
would question the validity of this Agreement, the Note or the other
Loan Documents to which the Borrower is a party, or any instrument,
document or other agreement related hereto or required hereby, or
impair the ability of the Borrower to perform its obligations under the
foregoing agreements.
F. Licenses. The Borrower possesses adequate licenses, permits,
franchises, patents, copyrights, trademarks and trade names, or rights
thereto, to conduct its business substantially as now conducted and as
presently proposed to be conducted.
G. Default. The Borrower is not in default of a material provision
under any material agreement, instrument, decree or order to which it
is a party or by which it or its property is bound or affected.
H. Consents. No consent, approval, order or authorization of, or
registration, declaration or filing with, or notice to, any
governmental authority or any third party is required in connection
with the execution and delivery of this Agreement, the Note and the
other Loan Documents to which the Borrower is a party, or any of the
agreements or instruments herein mentioned to which the Borrower is a
party, or in connection with the carrying out or performance of any of
the transactions required or contemplated hereby or thereby or, if
required, such consent, approval, order or authorization has been
obtained or such registration, declaration or filing has been
accomplished or such notice has been given prior to the date hereof.
I. Taxes. The Borrower has filed all local, state, federal and other
tax returns required to be filed by it and either paid all taxes shown
thereon to be due, including interest and penalties, which are not
being contested in good faith and by appropriate proceedings, or
provided adequate reserves for payment thereof, and the Borrower does
not have any information or knowledge of any objections to or claims
for additional taxes in respect of local, state, and federal or other
income or excess profits tax returns of the Borrower for prior years.
J. Titles, etc. The Borrower has good title to all of its properties
and assets, free and clear of all mortgages, security interests, liens
and encumbrances.
K. Pension Plans. The Borrower has not established or maintained, or
made any contributions to, any employee benefit plan which is subject
to Part 3 of Subtitle B of Title 1 of ERISA or, if such a plan has been
so established, maintained or contributed to, such plan did not have an
"accumulated funding deficiency" (as that term is defined in Section
302 of ERISA) as of the date hereof, and, without limiting the
generality of the foregoing, the Borrower has not incurred any
liability to the Pension Benefit Guaranty Corporation with respect to
any such plan. Notwithstanding the foregoing, the Corporation makes
contributions on behalf of its union employees to the I.A.M. National
Pension Fund.
L. Use of Loans. The 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 margin stock (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System),
and no part of the proceeds of any loan hereunder will be used to
purchase or carry any such margin stock or to extend credit to others
for the purpose of purchasing or carrying any such margin stock.
M. Environmental Protection. The Borrower has obtained all permits,
licenses and other authorizations which are required under federal,
state and local laws relating to pollution or protection of the
environment, including laws relating to emissions, discharges, releases
or threatened releases of pollutants, contaminants, hazardous or toxic
materials or wastes into ambient air, surface water, ground water or
land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of pollutants, contaminants or hazardous or toxic materials or wastes
("Environmental Laws"). The Borrower is in full compliance with all
terms and conditions of such required permits, licenses and
authorizations and are also in full compliance with all other
limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in the
Environmental Laws or contained in any plan, order, decree, judgment or
notice. The Borrower is not aware of, nor have the Borrower received
notice of, any events, conditions, circumstances, activities,
practices, incidents, actions or plans which may interfere with or
prevent continued compliance or which may give rise to any liability
under any Environmental Laws or the common law.
N. Solvency. The Borrower does not intend to, and does not believe that
it will, incur debts beyond its ability to pay such debts as they
mature.
7. COVENANTS. On and after the date hereof and until the payment in full of all
of the Obligations, and the performance of all other obligations of the Borrower
hereunder, the Borrower agrees that, unless the Lender shall otherwise consent
or agree in writing:
A. Financial Statements; Aging Analysis. The Borrower shall deliver to
the Lender each of the following documents, which shall be in form and
detail acceptable to the Lender:
(1) as soon as available and in any event within thirty (30)
days after the end of each calendar month during the term
hereof, a balance sheet and income statement of the Borrower
and the Corporation on a consolidated basis, such statements
to reflect the operations of the Borrower and the Corporation
during the preceding fiscal year to date, with comparable
figures for the corresponding period of the prior year,
together with agings of the Borrower's and the Corporation's
accounts receivable and accounts payable, all in reasonable
detail, prepared in accordance with generally accepted
accounting principles, consistently applied, and to be
accompanied by a certificate signed by a duly authorized
representative of the Borrower in the form attached hereto as
Exhibit A;
(2) as soon as available and in any event within ninety (90)
days after the end of each fiscal year of the Borrower,
financial statements of the Borrower and the Corporation on a
consolidated basis (including balance sheet, statement of
income, and statement of cash flow) for such year, all in
reasonable detail and audited by independent certified public
accountants of recognized standing selected by the Borrower
and acceptable to the Lender to the effect that the same have
been prepared on an accrual basis in accordance with generally
accepted accounting principles, consistently applied, which
statements shall also be accompanied by a certificate signed
by a duly authorized representative of the Borrower in the
form attached hereto as Exhibit A; and
(3) from time to time, with reasonable promptness, such
further information regarding the business, operations,
affairs and financial and other condition of the Borrower and
the Corporation as the Lender may request.
B. Taxes and Claims. The Borrower shall pay and discharge, and shall
cause the Corporation to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or
profits, or upon any of its assets or properties, prior to the date on
which penalties attach thereto, and all lawful claims which, if unpaid,
might become a lien or charge upon the property or assets of the
Borrower or the Corporation, as the case may be; provided, however,
that neither the Borrower nor the Corporation shall 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 proceedings and for which it shall have set aside on its book
adequate reserves therefor.
C. Insurance. The Borrower shall maintain, and shall cause the
Corporation to maintain, insurance coverage with responsible insurance
companies licensed to do business in the State of Minnesota (or, in the
case of any Collateral located in any other state, then in such state)
in such amounts and against such risks as is requested by the Lender or
as required by law, including, without limitation, property, hazard,
fire, wind, hail, theft, collapse, comprehensive general public
liability, product liability, business interruption insurance, and
worker's compensation or similar insurance. The Borrower shall furnish
to the Lender, upon written request, full information and written
evidence as to the insurance maintained by the Borrower and the
Corporation.
D. Maintenance of Existence; Conduct of Business. The Borrower shall
preserve all of its rights, privileges and franchises necessary or
desirable in the normal conduct of its business; conduct its business
in an orderly, efficient and regular manner; and, except as provided
for in N, below, shall not liquidate, merge, dissolve, suspend business
operations, or sell all or substantially all of its assets or
membership interests.
E. Maintenance of Properties. The Borrower shall keep, and shall cause
the Corporation to keep, all of the assets and properties necessary in
its business, including without limitation, the Real Property, in good
order and condition, ordinary wear and tear excepted.
F. Compliance with Applicable Laws. The Borrower shall comply with the
requirements of all applicable local, state and federal laws, and of
all rules, regulations and orders of any governmental or other
authority or agency, a breach of which would materially and adversely
affect its business or credit, except where contested in good faith and
by proper proceedings.
G. Litigation. The Borrower shall promptly give to the Lender notice in
writing of all litigation and of all proceedings by or before any court
or governmental or regulatory agency affecting the Borrower or the
Corporation in which the amount claimed or in dispute equals or exceeds
$50,000, except litigation or proceedings which, if adversely
determined, would not materially affect the financial condition or
business of the Borrower or the Corporation, as the case may be.
H. Access to Books and Inspection. The Borrower shall at all times
keep, and shall cause the Corporation to at all times keep, proper
books of record and accounts for itself, and, upon request of the
Lender, the Borrower shall provide any duly authorized representative
of the Lender access during normal business hours to, and permit such
representative to examine, copy or make extracts from, any and all
books, records and documents in the Borrower's or the Corporation's
possession or control relating to the
Borrower's or the Corporation's affairs, and to inspect any of their
respective facilities and properties.
I. Acquisitions. The Borrower shall not purchase or hold beneficially
any stock, other securities or evidences of indebtedness (or any
participation interest therein), or otherwise invest in or acquire, or
purchase all of substantially all of the assets of, any person(s),
firm(s), corporation(s), partnership(s) or association(s), except that
the Borrower shall at all times own all of the issued and outstanding
stock of the Corporation; or if Borrower liquidates Corporation
pursuant to N, below, then Borrower shall own all of the assets of the
Corporation.
J. Non-Business Assets. The Borrower shall not purchase, lease or
otherwise acquire any right, title or interest in or to any real or
personal property not directly related to or necessary in connection
with the present operations of the Borrower.
K. Loans; Guaranties; Investments. The Borrower shall not assume,
guarantee, endorse, contingently agree to purchase or otherwise become
liable (directly or indirectly, absolutely or contingently) in
connection with the obligations of any other person, firm or
corporation, nor shall the Borrower make or permit to exist any loans
or advances by the Borrower to, or purchase or otherwise acquire all or
any substantial part of the assets of, or any shares of stock or
similar interest in, any other person, corporation or entity.
L. Financial Covenants. The Borrower shall:
(1) maintain, on a consolidated basis with the Corporation, a
Net Income after distributions to members and shareholders of
no less than the following amounts, as of the fiscal year end
dates set forth below:
Fiscal Year End Minimum Net Income
--------------- ------------------
December 31, 2000 $200,000
December 31, 2001 $300,000
December 31, 2002 $350,000
December 31, 2003 $350,000
(2) maintain, on a consolidated basis with the Corporation, a
maximum ratio of Debt to Tangible Net Worth of not less than
3.75 to 1.0 as of the end of each fiscal year of the Borrower
through December 31, 2002, and not less than 3.5 to 1.0 as of
the end of the Borrower's fiscal year ending December 31,
2003;
(3) maintain, on a consolidated basis with the Corporation, a
minimum amount of Working Capital of not less than $500,000 as
of the end of the fiscal year of the Borrower ending December
31, 2000, and not less than $1,000,000 as of the end of each
fiscal year of the Borrower thereafter, through December 31,
2003.
M. Access. The Borrower and the Corporation shall grant to the Lender's
agents access at any reasonable time in order to inspect the Real
Property and the Borrower's and the Corporation's property and
business, together with any and all books and records pertaining
thereto.
N. Transfer of Collateral. The Borrower shall not, and shall not permit
the Corporation to sell, dispose of, lease, mortgage, assign, sublet or
transfer all or any part of its right, title or interest in or to the
Real Property or any other Collateral or other property owned by the
Borrower or the Corporation; provided, however, that (i) the Borrower
and the Corporation may sell inventory in the ordinary course of their
respective businesses, and (ii) the Corporation may, in connection with
a dissolution of the Corporation, transfer all of its assets to the
Borrower.
O. Deposit Accounts. The Borrower and the Corporation shall maintain
their respective primary deposit accounts with and at the Lender.
8. EVENTS OF DEFAULT.
A. Event of Default Defined. As used herein, the term "Event of
Default" shall mean and include each or all of the following events:
(1) the Borrower shall fail to pay when due, any amounts
required to be paid under the Note or any other indebtedness
of the Borrower to the Lender or any third party whether any
such indebtedness is now existing or hereafter arises and
whether direct or indirect, due or to become due, absolute or
contingent, primary or secondary or joint or joint and
several; or
(2) the Borrower or the Corporation shall fail to observe or
perform any other covenants, conditions or agreements to be
observed or performed by it under any of the Loan Documents or
any other credit or similar agreement to which the Borrower or
the Corporation is a party, and such failure shall continue
for a period of thirty (30) days after written notice,
specifying such default, given to the Borrower or the
Corporation, as the case may be, by the Lender, unless the
Lender shall agree in writing to an extension of such time
prior to its expiration, or for such longer period as may be
reasonably necessary to remedy such default (other than
defaults which can be cured by a money payment) provided that
such party is proceeding at all times with reasonable
diligence to remedy the same; or
(3) the Borrower, the Corporation or any guarantor shall file
a petition in bankruptcy or for reorganization or for an
arrangement pursuant to any present or future state or federal
bankruptcy act or under any similar federal or state law, or
shall be adjudicated a bankrupt or insolvent, or shall make a
general assignment
for the benefit of its respective creditors, or shall be
unable to pay its respective debts generally as they become
due; or if an order for relief under any present or future
federal bankruptcy act or similar state or federal law shall
be entered against the Borrower, the Corporation or any
guarantor; or if a petition or answer requesting or proposing
the entry of such order for relief or the adjudication of the
Borrower, the Corporation or any guarantor as a debtor or a
bankrupt or its respective reorganization under any present or
future state or federal bankruptcy act or any similar federal
or state law shall be filed in any court and such petition or
answer shall not be discharged or denied within thirty (30)
days after the filing thereof; or if a receiver, trustee or
liquidator of the Borrower, the Corporation or any guarantor
or of all or substantially all of the assets of the Borrower,
the Corporation or any guarantor, or of the Real Property, or
any part thereof, shall be appointed in any proceeding and
shall not be discharged within thirty (30) days of such
appointment; or if the Borrower, the Corporation or any
guarantor shall consent to or acquiesce in such appointment;
or if any property of the Borrower, the Corporation or any
guarantor (including without limitation the estate or interest
of the Corporation in the Real Property or any part thereof)
shall be levied upon or attached in any proceeding; or
(4) final judgment(s) for the payment of money in excess of
$50,000, individually or in the aggregate, shall be rendered
against the Borrower, the Corporation or any guarantor and
shall remain undischarged for a period of thirty (30) days
during which execution shall not be effectively stayed; or
(5) the Borrower, the Corporation or any guarantor shall be or
become insolvent (whether in the equity or bankruptcy sense);
or
(6) any representation or warranty made by the Borrower or the
Corporation herein or in any document related hereto, or by
any guarantor in any guaranty by any guarantor executed and
delivered in connection herewith, shall prove to be untrue or
misleading in any material respect, or any statement,
certificate or report furnished hereunder or under any of the
foregoing documents by or on behalf of the Borrower, the
Corporation or any guarantor shall prove to be untrue or
misleading in any material respect on the date when the facts
set forth and recited therein are stated or certified; or
(7) the Borrower, the Corporation or any guarantor shall
liquidate, dissolve, terminate or suspend its business
operations or otherwise fail to operate its business in the
ordinary course, or sell all or substantially all of its
assets, without the prior written consent of the Lender; or
(8) the Borrower or the Corporation is in material default
under any lease, which default has not been waived by the
lessor; or
(9) the Borrower, the Corporation or any guarantor shall fail
to pay, withhold, collect or remit any tax or tax deficiency
when assessed or due (other than any tax or tax deficiency
which is being contested in good faith and by proper
proceedings and for which it shall have set aside on its books
adequate reserves therefor) or notice of any state or federal
tax liens shall be filed or issued;
(10) any or all of the outstanding membership interests of the
Borrower is assigned or pledged, or shall be sold, transferred
or otherwise disposed of to any person not listed on Exhibit B
attached hereto, without the prior written consent of the
Lender;
(11) any property of the Borrower, the Corporation or any
guarantor shall be garnished, levied upon, or attached in any
proceeding and such garnishment or attachment shall remain
undischarged for a period of thirty (30) days during which
execution has not been effectively stayed; or
(12) the Borrower, the Corporation or any guarantor shall be
liquidated, dissolved or otherwise cease to exist pursuant to
its respective organizational documents, applicable law or
otherwise, except as provided for in Section 7N, above.
B. Acceleration of Note; Other Remedies. Upon the occurrence at any
time of any of the Events of Default listed above, or at any time
thereafter, the Lender may declare the unpaid principal balance of,
plus accrued interest on, plus all other amounts due and owing under,
the Note and/or any other instrument evidencing any other indebtedness
of the Borrower to the Lender, to be immediately due and payable,
without notice or demand, in which case such Note and/or other
instrument evidencing any such other indebtedness of the Borrower to
the Lender, and all amounts due hereunder shall be immediately due and
payable. In addition, upon the occurrence of an Event of Default, the
Lender may exercise any and all other rights and remedies available
under the Loan Documents or applicable law or equity.
9. NOTICES. All notices, consents, requests, demands and other communications
hereunder shall be given to or made upon the respective parties hereto at their
respective addresses specified below or, as to any party, at such other address
as may be designated by it in a written notice to the other party. All notices,
requests, consents and demands hereunder shall be effective when personally
delivered or duly deposited in the United States mails, certified or registered,
postage prepaid, or delivered to the telegraph company, addressed as aforesaid.
IF TO THE LENDER:
Xxxxxx Bank, National Association
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxx 00000
ATTN: Xxxxxxx X. Xxxxxx
IF TO THE Borrower:
Dynamic Homes, LLC
___________________
___________, Minnesota _____
ATTN: ___________________
10. MISCELLANEOUS.
A. Waivers, etc. No failure on the part of the Lender to exercise, and
no delay in exercising, any right or remedy hereunder or under
applicable law or any document or agreement related hereto shall
operate as a waiver thereof; nor shall any single or partial exercise
of any such right or remedy preclude any other or further exercise
thereof or the exercise of any other right or remedy. The remedies
herein provided are cumulative and not exclusive of any remedies
provided by law.
B. Expenses. The Borrower shall reimburse the Lender for any and all
costs and expenses, including without limitation attorneys' fees, paid
or incurred by the Lender in connection with (i) the preparation of
this Agreement, the Note, the Mortgage, the Security Agreement and any
other document or agreement related hereto or thereto, and the
transactions contemplated hereby, which amount shall be paid prior to
the making of any loan or advance hereunder; (ii) the negotiation of
any amendments, modifications or extensions to or of any of the
foregoing documents, instruments or agreements and the preparation of
any and all documents necessary or desirable to effect such amendments,
modifications or extensions; (iii) customary transaction fees of the
Lender incurred in connection with the loan contemplated hereby; (iv)
fees in connection with any audits or inspections by the Lender of the
Real Property or the operations and business of the Borrower or the
Corporation; (v) any and all other out-of-pocket expenses of the Lender
in connection with any of the transactions contemplated hereby; and
(vi) the enforcement by the Lender during the term hereof or thereafter
of any of the rights or remedies of the Lender under any of the
foregoing documents, instruments or agreements or under applicable law,
whether or not suit is filed with respect thereto.
C. Amendments, etc. This Agreement, the Note, the Mortgage and the
other Loan Documents may not be amended or modified, nor may any of
their terms (including without limitation, terms affecting the maturity
of or rate of interest on the Note) be modified or waived, except by
written instruments signed by the Lender and the other party or parties
to such document.
D. Successors. This Agreement shall be binding upon and inure to the
benefit of the Borrower and the Lender and their respective successors
and assigns; provided, however,
that the Borrower may not transfer or assign its rights to borrow
hereunder without the prior written consent of the Lender.
E. Offsets. Nothing in this Agreement shall be deemed a waiver or
prohibition of the Lender's right of banker's lien, offset, or
counterclaim, which right the Borrower hereby grants to the Lender.
F. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one
agreement, and any of the parties hereto may execute this Agreement by
signing any such counterpart.
G. Accounting. Unless otherwise expressly provided herein, or unless
the Lender otherwise consents in writing, all accounting terms used
herein which are not expressly defined in this Agreement shall have the
meanings respectively given to them in accordance with generally
accepted accounting principles and all financial statements and reports
furnished to the Lender hereunder shall be prepared, and all
computations and determinations pursuant hereto shall be made, in
accordance with generally accepted accounting principles and practices,
applied on a basis not materially inconsistent with that applied in
preparing the respective financial statements referred to in Sections
6.D. and 7.A. hereof.
H. Governing Law. This Agreement, the Note, the Mortgage, the other
Loan Documents and all other documents, instruments and agreements
related hereto, shall be construed in accordance with and governed by
the laws of the State of Minnesota.
I. Jurisdiction. The Borrower hereby submits itself to the jurisdiction
of the State of Minnesota and the federal courts of the United States
located in such state in respect of all actions arising out of or in
connection with the interpretation or enforcement of this Agreement and
the documents related hereto.
J. Headings. The descriptive headings for the several sections of this
Agreement are inserted for convenience only and shall not define or
limit any of the terms or provisions hereof.
K. Term. Unless sooner terminated by the parties pursuant to the
provisions hereof, the original term of this Agreement shall commence
as of the date hereof and continue thereafter until the Obligations
have been paid in full.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
DYNAMIC HOMES, LLC
By:
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Its:
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XXXXXX BANK, NATIONAL
ASSOCIATION
By:
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Its:
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