LOAN AGREEMENT
AGREEMENT entered as of ___________________, 2006, between ALL AMERICAN
PLAZAS, INC. ("All American"), ST. JOHN'S REALTY CORPORATION ("St. John's")
(collectively, "Borrowers"), and LILAC VENTURES MASTER FUND, LTD., AND THE
ADDITIONAL PARTIES IDENTIFIED ON THE SIGNATURE PAGES OF THIS AGREEMENT
("Lenders").
RECITALS:
A. Borrowers and Lenders have entered into a Securities Purchase
Agreement of approximately this date, under which the Borrowers will issue
secured debentures to the Lenders, of approximately this date, in an aggregate
amount of Two Million Five Hundred Thousand Dollars ($2,500,000.00).
B. The Lenders have requested and the Borrowers have agreed to
deliver additional security for its payment and performance obligations under
the Securities Purchase Agreement and the secured debentures, including
mortgages and other interests in real estate owned by St. John's in Plymouth and
Groton, New Hampshire.
C. This Agreement sets forth the additional obligations and rights
of the parties relating to that real estate, and constitutes additional
provisions of the Securities Purchase Agreement.
NOW, THEREFORE, for consideration paid, the parties agree that:
1. DEFINITIONS.
Each reference in this Agreement to the following terms shall be deemed
to have the following meanings:
ALL AMERICAN: All American Plazas, Inc., a Pennsylvania corporation.
COLLATERAL: The assets that secure the obligations of the Borrowers.
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DEBENTURES: The Secured Debentures issued by the Borrowers to the
Lenders of approximately this date in the aggregate amount of Two Million Five
Hundred Thousand Dollars ($2,500,000.00).
ENVIRONMENTAL LAWS: Any and all federal, state, and municipal laws,
whether now in force, or as amended or enacted in the future, pertaining to
health or the environment, including, without limitation, the New Hampshire
statutes pertaining to underground storage facilities, RSA Chapter 146-C; the
New Hampshire statutes pertaining to the oil discharge and disposal cleanup
fund, RSA Chapter 146-D; the New Hampshire Hazardous Waste Management Act, RSA
Chapter 147-A; the New Hampshire Hazardous Waste Clean Up Fund Act, RSA Chapter
147-B; the New Hampshire Worker's Right to Know Act, RSA Chapter 277-A; the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. ss.9601 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C.
ss.6901 et seq.; and the regulations adopted pursuant to those laws.
HAZARDOUS MATERIALS: Any substance defined as a "hazardous substance,"
"hazardous material," or "hazardous waste" in the Environmental Laws, and any
other substance or compound prohibited or regulated under the Environmental
Laws.
IMPROVEMENTS: Any additions to a development of any of the Real Estate
for which any Borrower has applied for or received approvals from governmental
entities or that Borrowers have represented to Lenders as projected development
of the Real Estate, including without limitation construction of roads,
utilities, and dwellings.
INCIPIENT DEFAULT: Any event which with notice or lapse of time, or
both, would become an event of default.
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LOAN: The advance of funds by the Lenders for purchase of the
Debentures, and the repayment obligation of the Borrowers, as described in the
Securities Purchase Agreement and the Debentures.
LOAN DOCUMENTS: All of the documents executed by Borrowers in connection
with the Loan.
NEW HAMPSHIRE REAL ESTATE: All land and buildings located in Grafton
County, New Hampshire, and all appurtenant rights, owned by St. John's.
REAL ESTATE: All real estate, including leasehold rights, of the
Borrowers included in the Collateral.
REAL ESTATE LOAN DOCUMENTS: This Agreement and the Loan Documents
required to be executed and delivered to Lenders by this Agreement.
REAL ESTATE SECURITY DOCUMENTS: Those Loan Documents that secure
performance of Borrowers' obligations to the Lenders that relate to the Real
Estate, as described in this Agreement.
ST. JOHN'S: St. John's Realty Corporation, a Delaware corporation.
SECURITIES PURCHASE AGREEMENT: The agreement for the sale of certain
debentures of Borrowers to Lenders, of approximately this date, as amended from
time to time.
SECURITIES PURCHASE DOCUMENTS: All of the documents required to be
executed and delivered to Lenders by the Securities Purchase Agreement.
SECURITY DOCUMENTS: Those Loan Documents that secure performance of
Borrowers' obligations to the Lenders under the Securities Purchase Agreement
and this Agreement.
SKI AREA: The ski area known as Xxxxxx Mountain Ski Area, located on the
New Hampshire Real Estate.
STOCK ACQUISITION: The acquisition by All American of all of the shares
of St. John's.
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2. THE LOAN. Lenders will advance funds to Borrowers (subject to the
conditions described below), in the initial aggregate principal amount of Two
Million Five Hundred Thousand Dollars ($2,500,000.00), as evidenced by the
Debentures and in accordance with the Securities Purchase Agreement, which
incorporates the provisions of this agreement by reference.
3. SECURITY FOR LOAN. In addition to any Security Documents described in
the Securities Purchase Agreement, the Loan and the payment and performance of
Borrower's obligations under the Debentures and the Securities Purchase
Agreement, and all other sums due Lenders under the terms of any of the Loan
Documents or this Agreement, are secured by the following Real Estate Security
Documents:
3.1 MORTGAGE. A first mortgage and security interest in the fixtures
on the New Hampshire Real Estate, substantially in the form of Exhibit 3.1.(the
"St. John's Mortgage").
3.2 SECURITY AGREEMENT. Security agreements, granting a security
interest in all fixtures and personal property of St. John's, substantially in
the form of Exhibit 3.2 (the "St. John's Security Agreement").
3.3 ASSIGNMENT OF PLANS, PERMITS, AND CONTRACT RIGHTS. A collateral
assignment of all Permits, Plans and Specifications, and contract rights held or
controlled by the Borrowers in connection with the development of the New
Hampshire Real Estate, substantially in the form of Exhibit 3.3 (the "St. John's
Assignment").
3.4 PLEDGE OF SHARES. A pledge by All American of all of the shares
of St. John's, substantially in the form of Exhibit 3.4 (the "Stock Pledge
Agreement") and all documents required by the Stock Pledge Agreement.
4. CONDITIONS PRECEDENT TO THE MAKING OF THE LOAN.
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4.1 GENERAL CONDITIONS. The obligation of the Lenders to make the
Loan, and to make any disbursements of the Loan, is subject to satisfaction of
all conditions in the Securities Purchase Agreement and the Debentures and to
each of the following conditions:
4.1.1 There have been no Events of Default or Incipient
Default under this Agreement or the Securities Purchase Agreement and the
Debentures.
4.1.2 None of the Borrowers has experienced any material
adverse change in its financial condition or in its ability to perform its
obligations under this Agreement, the Debentures, the Securities Purchase
Agreement, or the Loan Documents.
4.1.3 Borrowers have executed and delivered to Lenders all of
the Loan Documents.
4.2 REAL ESTATE DOCUMENTS. The Lenders have received each of the
following; each is acceptable to the Lenders; and none of them has been amended
without the Lenders' consent:
4.2.1 TAXES. Evidence of payment of property taxes on the New
Hampshire Real Estate.
4.2.2 INSURANCE. Evidence of insurance for such insurance as
Lenders may require, as further described in section 7.1.
4.2.3 TITLE INSURANCE. Commitments for Lenders' title
insurance policies on the New Hampshire Real Estate in a form and with
endorsements approved by Lenders without any exceptions not approved by the
Lenders' attorneys, insuring the Lenders in the amount of the St. John's
Mortgage.
4.2.4 MECHANIC'S LIENS. Mechanic's lien waivers or the
subordination of such liens to the lien of the Lenders submitted by all parties
who have the right to claim such a lien on the New Hampshire Real Estate, or
Borrower's affidavit that no labor has been performed or materials
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furnished and no contracts to perform labor or furnish materials have been
entered into in connection with the New Hampshire Real Estate, within one
hundred twenty (120) days prior to this Agreement, except as disclosed in
writing to and approved by Lenders.
4.2.5 CONTRACTS AND FRANCHISE AGREEMENTS. Copies of all
Contracts and Franchise Agreements for the New Hampshire Real Estate, including
operation of the Ski Area.
4.2.6 PERMITS. Copies of all permits and appraisals from all
municipal, state and federal authorities issued for the development and
operation of the New Hampshire Real Estate, including the Ski Area.
4.3. ENTITY EXISTENCE AND AUTHORIZATIONS. The Lenders have received
the following evidence of Borrowers' authorization and existence:
4.3.1 FOR ALL AMERICAN:
4.3.1.1 Certificate of Existence;
4.3.1.2 Certificates of Corporate Vote authorizing the
execution and performance of the Loan Documents;
4.3.1.3 Certificates of Incumbency; and
4.3.1.4 Certified copies of the Articles of
Incorporation and Bylaws.
4.3.2 FOR ST. JOHN'S:
4.3.2.1 Certificate of Existence;
4.3.2.2 Certificates of Corporate Vote authorizing the
execution and performance of the Loan Documents;
4.3.2.3 Certificates of Incumbency;
4.3.2.4 Certified copies of the Articles of
Incorporation and Bylaws; and
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4.3.2.5 Certificate of Registration to Conduct Business
in New Hampshire.
4.5 APPRAISAL. An appraisal by an appraisal firm satisfactory to
Lender disclosing a fair market value of the New Hampshire Real Estate,
including the Ski Area (the "Appraisal"), at least equal to one hundred twenty
percent (120%) of the amount of the Loan (the "Loan to Value Ratio").
4.6 OTHER. Such other documents and schedules relating to the New
Hampshire Real Estate, the Ski Area, and the Borrowers as the Lenders may
request.
4.7 ADDITIONAL COLLATERAL. If the Appraisal does not show the
required Loan to Value Ratio, the Borrowers shall provide additional collateral
acceptable to Lenders (the "Additional Collateral"), which may include a
collateral assignment of a leasehold interest by All American of property
located in Breezewood, Pennsylvania (the "Pennsylvania Real Estate") by
execution and recording of a collateral assignment of lease reasonably
satisfactory to Lenders (the Pennsylvania Lease Assignment"). If the Appraisal
is not completed prior to the advance of the Loan Funds, Lenders shall not be
deemed to have waived this provision, and may require the Additional Collateral
as a condition subsequent to the Loan.
5. REPRESENTATIONS AND WARRANTIES.
In order to induce the Lenders to make the Loan, the Borrowers makes the
following representations, warranties and promises:
5.1 FINANCIAL CONDITION. Subject to any limitations stated therein,
all financial data and all other documents which have been or will be furnished
to the Lenders to induce it to enter into this Agreement do, or will, fairly
represent the financial condition of the Borrowers and are, or will be,
accurate, true and complete in all material respects.
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5.2 FINANCIAL STATEMENTS. The financial statements have been and
will be prepared in accordance with generally accepted accounting principles,
consistently applied and fairly and completely set forth the financial position
of Borrowers, as applicable, as of their date. Except as previously disclosed in
writing to the Lenders, since the date of the financial statements, there has
been no significant assignment of assets or material adverse change or
threatened change in the financial condition, operation or business prospects of
the Borrowers.
5.3 ENTITY STATUS.
5.3.1 ALL AMERICAN. All American is a Pennsylvania corporation
duly organized and existing in good standing under the laws of Pennsylvania, has
complied with all laws and regulations and has obtained all permits and
approvals from all federal, state and municipal authorities necessary to conduct
its current business.
5.3.2 ST. JOHN'S. St. John's is a Delaware corporation duly
organized and existing in good standing under the laws of the State of Delaware
and registered to conduct business in New Hampshire, has complied with all laws
and regulations and has obtained all permits and approvals from all federal,
state and municipal authorities necessary to conduct its current business,
including the development and operation of the Ski Area.
5.4 OWNERSHIP OF MEMBERSHIP INTERESTS. Upon completion of the Stock
Acquisition, All American shall own all of the shares of stock issued by St.
John's, and no other person shall have any legal or beneficial interest in those
interests.
5.5 PENDING LITIGATION. There is not now pending or threatened
against any of the Borrowers any litigation or any proceedings before any court
or administrative agency, the outcome of which might adversely affect the
financial condition of the Borrowers or the Collateral or their
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ability to perform their obligations under this Agreement, the Securities
Purchase Agreement, or the Debentures.
5.6 APPROVALS. No approval of any person, corporation, or other
entity is a prerequisite to the execution and delivery of any of the Loan
Documents submitted to the Lenders in connection with the Loan, or to ensure
their validity or enforceability.
5.7 DUE EXECUTION. The execution, delivery and performance of the
Loan Documents are within the power of Borrowers, have been duly authorized, are
not in contravention of law or any agreement or undertaking to which any of the
Borrowers is a party or by which it is bound, and when executed will constitute
the valid and binding obligations of Borrowers, and will be enforceable
according to their terms.
5.8 TITLE. St. John's holds good and marketable title to the New
Hampshire Real Estate, free and clear of all mortgages, liens, and encumbrances,
except those matters listed on Schedule 5.8. The St. John's Mortgage, when duly
recorded in the Grafton County Registry of Deeds, shall grant a first mortgage
to the New Hampshire Real Estate.
5.9 COMPLIANCE WITH LAWS. The New Hampshire Real Estate is and will
be in compliance with all federal, state, and local laws, including, without
limitation, all zoning and land-use restrictions and all laws relating to use,
storage, and disposal of Hazardous Materials.
5.10 TRADE NAMES. No Borrower has used any trade names or other
entities in connection with its ownership of its Real Estate within the past
five years, except as set forth on Schedule 5.10.
6. USE OF FUNDS. The funds advanced by the Lenders shall be used by
Borrowers for the Stock Purchase, and for such other uses as set forth in the
Use of Funds Schedule attached as Schedule 6.
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7. COVENANTS OF BORROWERS.
7.1 INSURANCE.
7.1.1 St. John's shall maintain insurance in full force and
effect and will deposit certificates with the Lenders for the following:
7.1.1.1 Commercial general liability insurance,
including limited contractual liability and coverage limits of not less than One
Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars
($2,000,000.00) in the aggregate;
7.1.1.2 Fire and broad form coverage insurance;
7.1.1.3 Business interruption insurance;
7.1.1.4 All insurance required by any documents or
agreements related to the operation or development of any of the Real Estate and
by any other Loan Documents.
All required insurance policies shall be issued by
companies satisfactory to Lenders; be in an amount sufficient to protect
Lenders' interest; shall show the Borrowers and Lenders as insured, as their
interest may appear, or, where appropriate, show Lenders as Mortgagee, an
additional named insured and lender loss-payee; be evidenced by duplicate
original policies or XXXXX 28 forms; and shall require thirty (30) days' prior
written notice to Lenders of any intended cancellation.
7.1.2 In the event Borrowers fail to provide insurance as
provided above, the Lenders may at its option provide such insurance and charge
the amount to the Borrowers' account; such action by the Lenders shall not
constitute a waiver of the Lenders' right to claim a default.
7.2 ADDITIONAL LIENS. Borrowers shall not create, assume, incur, or
allow to be created, assumed or incurred, any mortgage, lien, attachment or
security interest or other encumbrance of any
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kind in respect to any of the Real Estate during the existence of the Loan,
without Lenders' prior written approval. Any such encumbrance shall be
discharged or released within thirty (30) days, or within such longer term as is
reasonably required, provided that Borrower (a) contests the encumbrance in good
faith, (b) is taking all steps reasonably necessary to contest the encumbrance,
and (c) maintains adequate reserves or insurance to discharge the encumbrance if
its challenge is unsuccessful.
7.3 ACTIONS AGAINST BORROWERS. Borrowers shall notify the Lenders in
writing as soon as any one of them has knowledge of any pending or threatened
actions, suits, or proceedings at law, in equity, or before any governmental
authority, against or affecting any of the Borrowers or the Real Estate, or any
business activities conducted or planned to be conducted by any of the
Borrowers, or involving the validity or enforceability of the Loan Documents or
the priority of the liens created by any of the Loan Documents.
7.4 TAX RECEIPT. The Borrowers shall, within thirty (30) days from
the date any taxes or any assessment on any of the Real Estate must be paid
without incurring a penalty, furnish to the Lenders a receipted tax or
assessment xxxx. All taxes and assessments on the Real Estate shall be paid on
or before the due date.
7.5 TAX ESCROW. For the purpose of providing regularly for the
prompt payment of all taxes levied or assessed against the Property, in the
event any Borrower fails to pay any taxes when due, Lenders may require the
Borrower to deposit with the Lenders, on the dates installments under the Note
are payable, an amount equal to an estimate of such taxes divided by the number
of months to elapse prior to the date when such taxes will become due and
payable. The monies thus deposited with the Lenders shall earn such interest as
is required by law, and are to be held by the Lenders as
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escrowee and disbursed by it in payment of such taxes as and when due, upon
Borrower's timely submission of a tax xxxx.
7.6 ADDITIONAL DOCUMENTS. The Borrowers shall execute any and all
documents required by the Lenders to confirm the priority of Lenders' interest
in the Collateral.
7.7 FINANCIAL STATEMENTS AND RECORDS. In addition to such other
financial information as the Lenders may request, each of the Borrowers shall
provide the following to Lenders:
7.7.1 TAX RETURNS. Borrowers shall provide the Lenders with
copies of all federal tax returns within one hundred twenty (120) days after the
close of its fiscal year.
7.7.2 FINANCIAL RECORDS. Each of the Borrowers shall, during
the term of the Loan, keep accurate and complete records of its financial
condition and records of the operation of the Real Estate owned by it, including
the Ski Area, which records shall be located at the Borrower's place of business
as listed in this agreement. Lenders and its agents shall have the right, upon
reasonable notice to Borrowers, to inspect, audit, check and make extracts from
any copies of such records relating to the Real Estate or to the general
financial condition of Borrower, and the Borrower shall provide copies of any
such records as Lenders may request.
7.8 EXPENSES AND FEES. In addition to all other amounts due under
this Agreement, the Loan Documents, and the Securities Purchase Agreement,
Borrowers shall pay, when specified below or upon demand, all costs and expenses
of:
7.8.1 Preparing the Loan Documents by Lenders and Lenders'
attorneys, and all filing and recording fees;
7.8.2 Preserving and inspecting the Real Estate; inspecting
and auditing the financial records of Borrower; collecting all amounts due
Lenders under this Agreement, the Debentures, the
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Securities Purchase Agreement, or the Loan Documents, including, without
limitation, filing fees and attorneys' fees; and exercising any of its other
rights and remedies under this Agreement;
7.8.3 Any appraisals, environmental site assessments, and
other site tests or investigations required or permitted by this Agreement;
7.8.4 The title search and title insurance policies required
by this Agreement.
7.9 REPAIRS. Each Borrower will maintain the Real Estate owned by it
in good repair, working order, and condition, and will make all needed and
proper repairs, renewals, and replacements, and shall take all actions necessary
to comply with and maintain in good standing any permits and approvals granted
for the development and operation of the Real Estate, including the Ski Area.
7.10 TRANSFER OF INTEREST IN THE REAL ESTATE. Borrowers shall not
sell, assign, or lease any interest in the Real Estate.
7.11 EXTRAORDINARY ENTITY ACTIONS. Except with the prior written
consent of Lenders, each of the Borrowers shall not:
7.11.1 Merge or consolidate or be merged or consolidated with
or into any other entity, or allow any change in ownership or control of the
Borrower.
7.11.2 Sell or dispose of any of its assets except in the
ordinary and usual course of business.
7.11.3 Engage in any business other than the business in which
it is currently engaged or a business reasonably related to it.
7.11.4 Amend any of its articles of incorporation, bylaws,
certificates of formation, and operating agreements, or any other entity
formation and governance documents.
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7.11.5 Issue any shares or membership interests, unless pledged
to Lenders.
7.12 COVENANTS FOR ADDITIONAL COLLATERAL. Upon Borrowers' granting
any Additional Collateral, the covenants relating to the Collateral granted as
of the inception of the Loan, including the New Hampshire Real Estate, shall
apply to the Additional Collateral. Any covenants relating to ownership of New
Hampshire Real Estate shall apply to Borrowers' leasehold interest in the
Pennsylvania Real Estate, subject to any fee interest of the owner thereof and
encumbrances reasonably acceptable to Lenders in the Pennsylvania Real Estate.
8. EVENTS OF DEFAULT AND REMEDIES.
8.1 EVENTS OF DEFAULT. Borrowers shall be in default under this
Agreement upon the occurrence of any one or more of the following events:
8.1.1 Any Borrower fails to make any payment due on the
Debentures, this Agreement, or any of the Loan Documents, as due and prior to
the expiration of any applicable grace period.
8.1.2 Any Borrower fail to comply with any of the other
covenants or provisions of this Agreement, and fails to cure the default within
fifteen (15) days of Lenders' written notice of default, or within such longer
time as is reasonably necessary to cure any default that cannot be cured within
fifteen (15) days, provided Borrowers act diligently to cure the default and the
interests of Lenders are not prejudiced by the delay, except for lapse of
Borrowers' insurance under section 7.1, or of the Debentures, the Securities
Purchase Agreement, the Loan Documents, or any other document delivered in
connection with the Loan, and the lapse of any applicable grace periods.
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8.1.3 Any representation or warranty made in this Agreement,
or any Loan Documents, or in any report, certificate, financial statement or
other instrument furnished in connection with this Agreement or the Loan is
false or misleading in any material respect.
8.1.4 A receiver or trustee of the property of any of the
Borrowers is appointed, or a Borrower files or have filed against it a petition
under any of the provisions of the bankruptcy law or any similar law, state or
federal, that is not dismissed or discharged within sixty (60) days, or makes an
assignment for the benefit of creditors.
8.1.5 Any Real Estate is found to contain Hazardous Waste, or
a lien under RSA 147-B:10-b, is placed on any of the Real Estate, unless
Borrowers provide evidence acceptable to Lenders of their ability to remediate
or remove the Hazardous Waste and Borrowers diligently undertake and complete
within a reasonable time removal or remediation of the Hazardous Waste in
accordance with the requirements of the New Hampshire Department of
Environmental Services, and the Environmental Protection Agency.
8.1.6 Any of the Real Estate is materially injured or
destroyed by fire or other casualty, and Lenders reasonably determines that the
available insurance proceeds are not sufficient to restore the Real Estate to
its original condition, or the Real Estate or any material portion of the Real
Estate is taken by eminent domain and the Real Estate cannot be used by Borrower
for its original purpose.
8.2 LENDERS' RIGHTS ON DEFAULT. Upon the occurrence of any one or
more of the Events of Default, and at any time thereafter:
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8.2.1 ACCELERATION OF DEBT. Any and all indebtedness of the
Borrowers to the Lenders shall, at the Lenders' option, become immediately due
and payable, without presentment, demand, protest or notice of any kind, all of
such being hereby expressly waived by the Borrowers.
8.2.2 OTHER REMEDIES. The Lenders may pursue any and all other
remedies granted it under this Agreement, the Securities Purchase Agreement, and
the other Loan Documents, including without limitation the right to occupy and
operate the Real Estate, to collect the proceeds therefrom, and to pay expenses
of maintenance and operation of the Real Estate. All payments made or
liabilities incurred by Lenders hereunder of any kind shall be secured by the
Security Documents, shall be paid by Borrower to Lenders on demand, and shall
bear interest at the highest rate stipulated in the Note until the date of
repayment.
8.3 INSURANCE AND CONDEMNATION PROCEDURE. If one of the events set
forth in subsection 8.1.6 occurs, the insurance proceeds or condemnation award,
as the case may be, shall be paid to the Lenders alone, to be applied in the
Lenders' discretion, and in such order as the Lenders may determine in
accordance with the Mortgages. The Lenders are authorized, without the consent
of the Borrowers, to adjust and compromise any such loss or condemnation award,
collect and receipt for any such proceeds or awards and endorse the Borrowers'
name on any check or draft in payment thereof.
8.4 PROJECT COMPLETION. The Lenders may enter upon any of the Real
Estate and construct, equip, and complete the Improvements, with such changes
therein as the Lenders may, from time to time, and in their sole discretion,
deem appropriate. The Lenders may assume any construction contract made by the
Borrowers in any way relating to the Improvements and take over and use all or
any part or parts of the labor, materials, supplies and equipment contracted for
by the Borrowers,
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whether or not previously incorporated into the Improvements, all in the sole
and absolute discretion of the Lenders. In connection with any construction of
the Improvements undertaken by the Lenders pursuant to the provisions of this
section, the Lenders may engage builders, contractors, architects and engineers
and others for the purpose of furnishing labor, materials and equipment in
connection with the Improvements; pay, settle or compromise all bills or claims
that may become liens against the Improvements or that have been or will be
incurred in any manner in connection with the construction, equipping and
completion of the Improvements; and take such other action hereunder, or refrain
from acting hereunder, as the Lenders may, in its sole and absolute discretion,
from time to time determine to carry out the intent of this section. The
Borrowers shall be liable to the Lenders for all costs paid or incurred by
Lenders for the construction, completion, and equipping of the Improvements. All
payments made or liabilities incurred by the Lenders hereunder of any kind
whatsoever shall be secured by the Security Documents; shall bear interest at
the annual interest rate specified in the Debentures; and shall be paid by the
Borrowers to the Lenders on demand. In the event the Lenders takes possession of
any of the Real Estate and assumes control of the construction of the
Improvements, it shall not be obligated to continue such construction longer
than it shall see fit and may thereafter at any time change any course of action
undertaken by it or abandon such construction and decline to make further
payments for the account of the Borrowers, whether or not the Improvements have
been completed.
8.5 POWER OF ATTORNEY. For the purpose of carrying out the
provisions and exercising the rights, powers and privileges granted by Section 8
in the event of a default, the Borrowers hereby irrevocably constitutes and
appoints the Lenders their true and lawful attorney-in-fact, with full power of
substitution, to execute, acknowledge and deliver any instruments and do and
perform any
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acts which are referred to in Section 8 in the name and on behalf of the
Borrowers. The power vested in the attorney-in-fact is, and shall be deemed to
be, coupled with an interest and irrevocable.
8.6 REMEDIES NOT EXCLUSIVE. The Lenders' rights and remedies under
this Agreement are cumulative. The Lenders' failure to exercise any remedy shall
not constitute a waiver of its other remedies hereunder or a waiver of the
default or any subsequent event of default.
9. GENERAL CONDITIONS.
9.1 INSPECTION. The Lenders shall have the right to inspect the Real
Estate at all reasonable times. All inspections made by the Lenders or its
agents are made solely to ascertain the condition of the Real Estate for the
benefit of the Lenders, and the Borrowers agree that the Lenders does not
thereby assume additional responsibilities, and agrees that it will indemnify
and hold the Lenders harmless from any liability asserted by reason of such
inspections.
9.2 NOTICES. Except as expressly provided, all required notices
between the Borrowers and the Lenders or to any of the following shall be in
writing and shall be deemed to have been properly given when sent by certified
or registered mail, return receipt requested, postage prepaid, or by Federal
Express or other reputable courier service providing receipted delivery,
addressed as set forth in the Security Purchase Documents and to the following:
(1) If to Lenders:
Xxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxxxx LLP
The Graybar Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Tel: 000-000-0000
Fax: 000-000-0000
and
00
Xxxxx X. Xxxxxxx
Xxxxx & Xxxxxxxx, XXX
00 Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Tel: 000-000-0000
Fax: 000-000-0000
(2) If to Borrowers:
Xxxxxxxx Xxxxxxx
Austern & Austern, P.C.
X.X. Xxx 000
0 Xxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
9.3 WAIVER. The waiver of any of the terms and conditions of this
Agreement shall not be deemed to constitute a subsequent waiver of the same or
any other terms or condition.
9.4 COMPLETE AGREEMENT. This Agreement, together with the Loan
Documents, the Securities Purchase Agreement, and the Securities Purchase
Documents, constitute the complete understanding between the parties and may not
be changed except by an agreement in writing signed by the parties.
9.5 GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the Governing Law for the Securities Purchase
Agreement, except that any rights and remedies as to the New Hampshire Real
Estate granted by this Agreement and the Loan Documents shall be construed with
and in accordance with the laws of the State of New Hampshire.
9.6 WAIVER OF JURY TRIAL. The parties waive and elect not to assert
their right to trial by jury on any issues triable by a jury on any issue
triable by a jury arising under this Agreement or any of the Loan Documents.
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9.7 ASSURANCE OF EXECUTION AND DELIVERY OF ADDITIONAL INSTRUMENTS.
The Borrowers agree to execute and deliver, or to cause to be executed and
delivered, to the Lenders all such further instruments, and to do or cause to be
done all such further acts and things, as the Lenders may reasonably request to
achieve the purposes of this Agreement and the Loan Documents.
9.8 AGENT FOR LENDERS. By separate agreement, the Lenders may
appoint an agent to hold any Collateral and to exercise any of the remedies of
Lenders under this Agreement or any of the Loan Documents. Any reference to
Lenders in this Agreement shall be deemed to refer to the Agent acting in that
capacity in the Loan Documents, and any reference to "Lender" in the Loan
Documents shall include the Lenders as their interests may be defined in the
agency agreement with the Agent.
9.9 COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement, and all of
the Loan Documents, may be executed in any number of counterparts, with the same
effect as if all of the signatures on such counterparts appeared on one
document, and each such counterpart shall be deemed to be an original document.
Facsimile or electronic signatures of the Lenders shall be accepted as
originals.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date written above.
All American Plazas, Inc.
By: ________________________________
Xxxxx Xxxxxx,
Executive Vice President
St. John's Realty Corporation
By: ________________________________
Xxxxx Xxxxxx, President
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Lilac Ventures Master Fund Ltd.
By: ________________________________
print name:
title:
Smithfield Fiduciary LLC
By: ________________________________
print name:
title:
Crestview Capital Master, LLC
By: ________________________________
print name:
title:
Iroquois Master Fund Ltd.
By: ________________________________
print name:
title:
Cranshire Capital, L.P.
By: ________________________________
print name:
title:
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