Exhibit 10.11
AMENDED AND RESTATED MASTER LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of the 2nd day of July, 1998 (the "Loan
Agreement" or "Agreement"), is made by and between Xxxxxx Housing Corporation, a
Florida corporation (the "Borrower"), with offices located at 0000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000, and Xxxxxxx Bank, N.A., a national
banking association organized and existing under the laws of the United States,
with its offices located at 0000 Xxxxx Xxxxxxxxx Xxxx., Xxxxx 000, Xxxxx,
Xxxxxxx ("Bank").
RECITALS
A. Borrower and Bank have heretofore established a revolving line of
credit loan in the principal amount of Nine Million Five Hundred Thousand and
No/100 Dollars ($9,500,000.00) (the "Loan") to be used for the purpose of
constructing single family dwellings on individual lots now owned or to be
acquired by Borrower in fee simple and mortgaged to Bank as security for the
Loan.
B. Borrower and NationsBank, N.A. have also established a similar
revolving line of credit loan in, the amount of Ten Million Dollars
($10,000,000.00) (the "NationsBank Loan") to be used for the same purpose of
constructing single family dwellings on individual lots now owned or to be
acquired by Borrower in fee simple and mortgaged to Bank as security for that
loan.
C. By virtue of a merger of their respective holding companies, Bank
and NationsBank are now under common ownership and have agreed with Borrower to
administer their respective loan upon consistent and coordinated terms.
D. Borrower and Bank have agreed to amend and restate the loan
agreement governing the terms and administration of the Loan and this instrument
is entered into for that purpose.
NOW, THEREFORE, in consideration of the premises, of the loan advances
which may be agreed to be made Bank to Borrower, hereinafter and the note and
mortgage given by Borrower in evidence thereof, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Borrower and Bank hereby agree as follows:
ARTICLE I
Definitions
1.1 For the purposes hereof:
(a) "Approved Construction Loan" means the terms, conditions,
and documenta tion approved by Bank and accepted by Borrower upon which advances
will be made under the Loan for construction of a dwelling on a particularly
identified lot, which Approved Construction
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Loan may be evidenced by a written commitment letter or other confirmation from
Bank to Borrower.
(b) "Borrower's Representative" means the person or persons
designated in writing to Bank by Borrower as being authorized to submit Draw
Requests on Borrower's behalf and to consent to changes in the Cost Breakdown.
Unless and until changed by written notice to Bank, Borrower designates
___________________________ as its Borrower's Representative(s).
(c) "Closing Date" means the date as of which this Loan
Agreement is executed by Borrower and Bank.
(d) "Collateral" means the Mortgaged Property, Rents,
Intangible Property and other property rights as described in and encumbered by
the Mortgage.
(e) "Commitment" means Bank's commitment letter to Borrower
dated May 8, 1998, (and all amendments thereto), the terms and conditions of
which are incorporated herein by reference, but in the event of any conflict or
discrepancy between the terms of this Agreement and the Commitment, the terms of
this Agreement shall control.
(f) "Construction Consultant" means the architectural,
engineering, or consulting firm which Bank may designate to perform various
services on behalf of Bank. The services to be performed by Bank's Construction
Consultant may include review of the Plans and all proposed changes to them,
preparation of a "cost take-off" construction analysis (the "Construction
Analysis"), periodic inspections of construction work for conformity with the
Plans, and approval of Draw Requests.
(g) "Construction Documents" means the stipulated sum
construction contract between Borrower and the General Contractor, if a General
Contractor is engaged, and all other contracts, plans or documents concerning
the construction of the Improvements and any addenda, amendments or
modifications thereto. The Construction Documents shall include a hard cost
breakdown and a maximum fixed cost for the performance of all services, labor,
and materials furnished thereunder.
(h) "Construction Loan Agreement" means the written agreement
made by Borrower and Bank as to each Approved Construction Loan containing terms
and conditions governing construction funding and administration.
(i) "Cost Breakdown" means the detailed trade breakdown of the
cost of constructing the Improvements and an itemization of non-construction and
Land costs, all as approved by Bank from time to time as to each Approved
Construction Loan.
(j) "Default" means a violation of any term, covenant, or
condition hereunder or a Default as defined under any of the other Loan
Documents.
(k) "Default Condition" means the occurrence or existence of
an event or condition which, upon the giving of notice or the passage of time,
or both, would constitute a Default.
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(l) "Draw Request" means a request for any disbursement of
Loan proceeds, which shall be submitted for each requested disbursement as set
forth in Article 11 hereof.
(m) "Financing Statements" means the UCC financing statements
filed in order to perfect Bank's lien on certain personal property and fixtures
as more particularly described therein.
(n) "General Contractor" means _____________________, if named
here, who will serve as the general contractor in accordance with the
Construction Documents; if a General Contractor is not engaged or is not named
here, any obligation of the General Contractor referred to in the Loan Documents
shall be the obligation of the Borrower to perform or to cause to be performed.
(o) "Governmental Authorities" means any local, state, or
federal governmental agency, regulatory body or office, or any
quasi-governmental office (including health and environmental), or any officer
or official of any such agency, office, or body whose consent or approval is
required as a prerequisite to the commencement of the construction of the
Improvements or to the operation and occupancy of the Improvements or the
Project or to the performance of any act or obligation or the observance of any
agreement, provision or condition of whatsoever nature herein contained.
(p) "Guarantor" means collectively, and jointly and severally,
the following: Xxxxxx X. Xxxxxx and International American Homes, Inc., a
Delaware corporation.
(q) "Guaranty" means jointly and severally the guaranty of the
full payment and performance of the Loan by International American Homes, Inc.,
a Delaware corporation, and by Xxxxxx X. Xxxxxx, individually, subject to the
terms provided herein. The guaranty shall be in a form and substance
satisfactory to Bank and its counsel. The Guarantors shall subordinate any and
all obligations of the Borrower to them in favor of Bank in order that there
shall be no offset against the guarantee of any amount which may be owing to the
Guarantors by Borrower. The individual guaranty of Xxxxxx X. Xxxxxx will be
released as to sums previously advanced and his guaranty shall not extend to
sums advanced under the Loan in the future, for the construction of Pre-Sold
Units. Furthermore, if the financial statements for International American
Homes, Inc., tested quarterly, show a Tangible Net Worth of $7,200,000 or more,
and a Total Debt/Tangible Net Worth ratio (adjusted for bonds) of 2.75:1, or
better, then the personal guaranty of Xxxxxx X. Xxxxxx will be abated as to 50%
of the sums previously advanced or advanced in the future for the construction
of Spec and Model Units and lots. If the financial statements for International
American Homes, Inc., tested quarterly, show a Tangible Net Worth of $7,500,000
or more, and a Total Debt/Tangible Net Worth ratio (adjusted for bonds) of
2.50:1, or better, then the personal guaranty of Xxxxxx X. Xxxxxx will be abated
in full. The personal guaranty of Xx. Xxxxxx will be reinstated consistent with
the foregoing standards if International American Homes, Inc. fails to maintain
the stated ratios.
(r) "Improvements" means all improvements on the Land as
defined in the Mortgage.
(s) "Land" means the real property described in the Mortgage
at the inception of the Loan and as may be later included by modification and by
spreader agreement.
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(t) "Loan Documents" means this Loan Agreement, the Note and
any funding agreement, the Mortgage, the Guaranty, the Financing Statements, any
Construction Loan Agreement, and any other document or writing executed in
connection therewith or in furtherance thereof.
(u) "Mortgage" means the Real Estate Mortgage, Assignment and
Security Agreement of even date herewith executed by Borrower for the benefit of
Bank encumbering the Collateral (as defined in the Mortgage), and any
extensions, modifications, renewals or replacements thereof.
(v) "Note" means the promissory note dated as of the Closing
Date executed by Borrower in favor of Bank in the amount of Nine Million Five
Hundred Thousand and No/100 Dollars ($9,500,000.00), as well as any promissory
note, sub-note, or other notes issued by Borrower in substitution, replacement,
extension, future advance, amendment or renewal of the Note or any such
promissory note or notes.
(w) "Permitted Encumbrances" means those liens, encumbrances,
easements and other matters defined in the Mortgage as "Permitted Encumbrances".
(x) "Plans" means plans and specifications for the
construction of the Improvements submitted to and approved by Bank from time to
time, and including such amendments thereto as may from time to time be made by
Borrower and approved by Bank.
(y) "Project" means the collective reference to the Land, the
Improvements, rights, property, and appurtenances as defined, described or
identified in the Mortgage, and means, as the context may require, an individual
lot and the Approved Construction Loan thereon, as well as the aggregate of all
such lots and loans.
(z) "Security Documents" means the Mortgage, the Financing
Statements, and any other instrument executed to establish and perfect Bank's
lien, and any extensions, modifications, renewals, or replacements thereof.
(ab) "Title Policy" means the mortgagee title policy meeting
the requirements of this Loan Agreement.
ARTICLE II
The Loan
2.1 Loan Terms. Subject to the terms and conditions of this Loan
Agreement, Bank will lend and Borrower will borrow up to a principal sum of Nine
Million Five Hundred Thousand and No/100 Dollars ($9,500,000.00), which
borrowing shall be evidenced by the Note. Also, all of the terms, definitions,
conditions, and covenants of the Note, the Guaranty, the Mortgage, and any other
documents executed in connection therewith or pursuant thereto are expressly
made a part of this Loan Agreement by reference in the same manner and with the
same effect as if set forth herein at length and shall have the meaning set
forth in such instrument(s) unless otherwise defined herein. The Loan will be a
revolving line of credit. Borrower will be entitled to borrow and re-borrow
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the principal previously repaid provided no default exists. An annual loan fee
equal to five-eighths of one percent (0.625%) of the maximum loan amount shall
be due each year on the anniversary of the Loan closing if the Loan extends
beyond one year.
2.2 Interest. The outstanding principal balance of the Loan shall bear
interest, and principal and interest shall be repayable, all in accordance with
the terms of the Note.
2.3 Approvals for Funding. The Loan proceeds will be used solely to
finance the acquisition of lots and construction costs of pre-sold, model, and
speculative dwelling units ("Units") on individual lots owned or to be acquired
by Borrower and mortgaged to Bank in Hillsborough County, Pasco County, Pinellas
County, and Xxxxxx County, Florida, and in such other counties as Bank may
approve. Bank will disburse Loan proceeds in accordance with this Loan
Agreement, which shall supersede and shall govern any conflicts between or among
other loan documents and this Agreement. The use of Loan proceeds for the
construction of units shall be limited to:
(a) The combined NationsBank and Xxxxxxx Bank total for
pre-sold Units at any one time: 110 Units in number, $11,000,000 in maximum
committed amount, and $6,500,000 in maximum amount actually outstanding;
(b) The combined NationsBank and Xxxxxxx Bank total for model
and speculative units at any one time: 115 Units in number, and $11,500,000 in
maximum outstanding and committed amount;
(c) The combined NationsBank and Xxxxxxx Bank total for
developed lots at any one time: 85 lots in number, 25 lots in any one
subdivision, $1,500,000 in maximum outstanding and committed amount, and a
maximum loan per lot of $35,000. Subdivisions shall be subject to the approval
of Bank. Any loan exposure not used for developed lots may be used for pre-sold
Units;
(d) Notwithstanding the foregoing limitations by category, the
total amount outstanding under the NationsBank and Xxxxxxx Bank loans at any one
time shall not exceed the total loan amount of $19,500,000.00.
(e) Valuations may be based on internal Bank valuations for
unit commitments under $250,000 and on master appraisals for unit commitments
over $250,000. Borrower shall pay or reimburse Bank $100 per valuation for
internal valuations and Bank's cost for master appraisals. Valuations shall be
made and paid by Borrower on the basis of each floor plan type per subdivision.
To monitor the collateral base and to assist in calculating the Maximum
Allowable Funding, Borrower shall provide to Bank a semi-monthly report of
construction completion status on the Bank's form or other form approved by
Bank. Inspection fees under the Loan will be $125.00 per unit, irrespective of
the number of times Bank elects to inspect. Borrower shall provide Bank with
quarterly status reports, within 45 days of period end, reflecting inspect.
Borrower shall provide Bank with quarterly status reports, within 45 days of
period end, reflecting the number of Units sold and the sales price of each Unit
as well as collateral inventory, including the number of Units, their stages of
development, and the status of the sale of each Unit.
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(f) Borrower may initiate funding for construction of a
particular dwelling by submitting a request to Bank, together with supporting
items or documents required by Bank as conditions precedent to funding,
including but not limited to:
(i) Construction plans and specifications;
(ii) Cost breakdown for the construction;
(iii) Appraisal in form and content and by an
appraiser satisfactory to Bank;
(iv) True copy of the presale contract on the
dwelling, if any;
(v) Such other information as may from time to
time be required by Bank to be submitted
under its credit underwriting practices.
After receipt and review of the foregoing and such other information as it may
require, Bank will evaluate the application and determine whether the required
documentation is complete. If Bank approves the request for funding, it shall
issue to Borrower its written commitment letter or other confirmation of the
amount to be funded and detailing the terms, conditions, and further
requirements or instructions for closing as to that Approved Construction Loan.
(g) When Borrower has accepted and returned the commitment
letter and complied with or fulfilled its requirements for closing, Borrower and
Bank shall qualify the Approved Construction Loan for funding under the Loan by
executing and providing documentation more specifically detailed in the
commitment letter from Bank to Borrower, including but not limited to:
(i) Funding agreement, reciting the maximum
amount approved for funding on account of
this construction, and incorporating the
terms of the Note and Mortgage;
(ii) Notice of Commencement;
(iii) Builder's Risk Insurance Policy or
endorsement adding the subject property;
(iv) Such other documents as may customarily be
required by Bank in connection with
construction loans.
Unless stated otherwise in the funding agreement, all sums disbursed on account
of an Approved Construction Loan shall mature and shall be due and payable, and
the Bank's obligation to fund shall cease, on the maturity date of the Note, or
nine months from the date of execution of the funding agreement, or Bank's
acceleration of maturity of the Note on Borrower's default, whichever comes
first. If there is a Default under the Note, Mortgage, this Loan Agreement, or
any of the Loan Documents, or if Bank elects in the future to terminate this
Loan Agreement or not to renew the Note at its maturity, Bank may, at its
option, declare the Note and any outstanding Approved Construction Loans
immediately due and payable, whereupon Bank shall not be obligated to make any
further disbursements under the Loan or under any Approved Construction Loans.
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2.4 Disbursements. Bank agrees that it will, from time to time, and so
long as there shall exist no Default Condition or Default, but not more
frequently than monthly, disburse Loan proceeds to Borrower. The conditions set
forth in Article III hereof must be satisfied before Bank will make the first
advance or disbursement, and the conditions set forth in Article IV hereof must
be and remain satisfied before Bank will make each subsequent disbursement or
advance.
2.5 Draw Requests. No later than 3:00 P.M. on Tuesday prior to each
Friday Loan disbursement by Bank, Borrower must submit to Bank a Draw Request,
which shall include or be accompanied by the requirements set out herein for
draws.
2.6 Disbursement Amounts. Following receipt of a Draw Request and
receipt and review of Bank's inspection, Bank shall determine the amount of the
disbursement it will make in accordance with Bank's standard draw sheet, a copy
of which is attached as Exhibit A, provided no Default Condition or Default
exists.
2.7 Equity Requirements. If Bank at any time determines in its
reasonable discretion that the Loan proceeds plus the amount of all equity
investments made or scheduled to be made are not sufficient to fully complete
the Improvements in accordance with the Plans and to pay all other sums due
under the Loan Documents, then Bank shall have the option of requiring Borrower
to deposit with Bank additional funds from some other source (or submit evidence
to Bank of equity investments previously made) in amounts sufficient to cover
the resulting deficit before Bank will disburse any additional Loan proceeds.
Deposited funds shall be advanced as construction progresses in accordance with
this Loan Agreement before any additional Loan disbursements are made.
2.8 Option to Disburse Funds to any Guarantor and/or to Pay
Contractors. If a Default shall exist, at its option, Bank may make Loan
disbursements directly to any guarantor or obligor of the Debt when such party
shall be performing the obligations of Borrower hereunder or the General
Contractor or any unpaid subcontractor, laborer or material supplier providing
labor, services or materials in connection with the construction of the
Improvements, and the execution of this Loan Agreement by Borrower shall, and
hereby does, constitute an irrevocable direction and authorization to Bank to so
disburse the funds. No further direction or authorization from Borrower shall be
necessary to warrant such direct disbursements and all such disbursements shall
be secured by the Security Documents as fully as if made to Borrower, regardless
of the disposition thereof by the General Contractor, any subcontractor, laborer
or material supplier so paid.
2.9 Line of Credit Proceeds Availability. Prior to each Approved
Construction Loan funding, and at all times during the term of each Approved
Construction Loan, Bank must be satisfied that the outstanding Loan balance plus
the cost to complete construction of all units then under construction does not
exceed the total amount of the Loan. Bank shall not be obligated to make Loan
disbursements if it is not satisfied that there are sufficient Loan proceeds
available as set forth herein.
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ARTICLE III
Conditions Precedent to First Disbursement
Bank shall not be obligated to make the first Loan disbursement until
all of the following conditions have been satisfied by proper evidence,
execution and/or delivery to Bank, all in form and substance reasonably
satisfactory to Bank and Bank's counsel:
3.1 Note. The original Note, property executed, shall have been
delivered to Bank.
3.2 Guaranty. The original Guaranty(s), properly executed, shall have
been delivered to Bank.
3.3 Mortgage. The Mortgage, which shall be a first lien on the Project,
shall have been properly executed in recordable form.
3.4 Indemnity. The Hazardous Substance Certificate and Indemnification
Agreement, properly executed by Borrower and each Guarantor, shall have been
delivered to Bank.
3.5 Financing Statements. The Financing Statements on forms approved
for filing in the appropriate state and local filing offices shall have been
properly executed.
3.6 Title Policy. A standard ALTA mortgagee title policy as to the
Project from a company or from companies approved by Bank (including any
reinsurance agreements required by Bank, together with direct access provisions
in favor of Bank): (1) providing coverage for the full principal amount of the
Loan, (2) providing a variable rate endorsement, if appropriate, the Form 9
Endorsement, the Revolving Loan Endorsement, the Survey Endorsement, and any
other endorsements requested by Bank, (3) deleting all "standard" exceptions
except taxes for the current year, (4) insuring all appurtenant easements, and
(5) containing no title exceptions not approved by Bank.
3.7 Title Exceptions. Copies of all documents creating exceptions to
the Title Policy.
3.8 Survey. Three copies of a recent survey of the Land prepared by a
registered land surveyor acceptable to Bank and certified to Bank, the title
insurance company, and Borrower. Such survey shall contain a certification as to
the applicable flood zone(s) for the Land, and a certification that the survey
was made in accordance with the Minimum Technical Standards for Surveys as set
out in Chapter 21HH-6, Florida Administrative Code.
3.9 Flood Hazards. Evidence as to whether or not the Land is located
within an area identified as having "special flood hazards" as such term is used
in the Federal Flood Disaster Protection Act of 1973. Such evidence can be the
certification that is required in connection with the survey required herein.
3.10 Flood Hazard Insurance. If all or any part of the Improvements is
or is to be located in an area having "special flood hazards", a flood insurance
policy naming the Bank as mortgagee must be submitted to Bank. Satisfactory
evidence of premium payments must also be provided.
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3.11 Builder's Risk Insurance. A builder's risk insurance policy
meeting the requirements set forth in the Mortgage. Satisfactory evidence of
premium payments must also be provided.
3.12 Liability Insurance. Liability insurance meeting the requirements
set forth in the Mortgage. Satisfactory evidence of premium payments must be
provided.
3.13 Borrower's Organizational Documents and Resolutions. A certified
copy, from the appropriate governmental body or corporate officer, of
organizational documents of Borrower, and any partner of Borrower, as
appropriate, certifying that Borrower and/or such partner (i) is duly organized,
validly existing, and in good standing under the state of its existence, (ii)
has the authority under such documents and laws to enter into the Loan as
contemplated by the Loan Documents, and (iii) has made all appropriate filings,
including without limitation, qualification to do business in the State of
Florida, necessary to enter into the Loan and execute the Loan Documents.
Additionally, Borrower shall provide (i) if appropriate, certified resolutions
or other internal documents or writing of Borrower and such partner evidencing
that Borrower and such partner have taken all requisite organizational action,
and received all organizational approvals necessary to enter into the Loan and
execute the Loan Documents, and (ii) such other documents or writings as Bank
may request.
3.14 Guarantor's Organizational Documents and Resolutions. A certified
copy, from the appropriate governmental body or corporate officer, of
organizational documents of Guarantor, and any partner of Guarantor, as
appropriate, certifying that Guarantor and/or such partner (i) is duly
organized, validly existing, and in good standing under the state of its
existence, (ii) has the authority under such documents and laws to enter into
and execute the Guaranty, (iii) has made all appropriate filings, including
without limitation, qualification to do business in the State of Florida,
necessary to enter into the Guaranty. Additionally, Guarantor shall provide (i)
if appropriate, certified resolutions or other internal documents or writing of
Guarantor and such partner evidenc ing that Guarantor and such partner have
taken all requisite organizational action and, received all organizational
approvals, necessary to enter into and execute the Guaranty, and (ii) such other
documents or writings as Bank may request.
3.15 Fictitious Name Certificate. If Borrower utilizes or intends to
utilize a fictitious name, a copy of the Fictitious Name Certificate of the
Borrower issued by the Florida Secretary of State.
3.16 Attorney's Opinion. The written opinions of counsel to Borrower
and Guarantor, addressed to Bank, acceptable to Bank and Bank's counsel, as to
those matters required by Bank. The attorney's opinion, with respect to the
enforceability of remedies provided in any instrument may be made subject to or
affected by, applicable bankruptcy, moratorium, reorganization, insolvency or
similar laws from time to time in effect affecting the rights of creditors
generally. As to matters of fact, such opinions may be qualified to the extent
of the knowledge of such counsel based upon inquiry and reasonable
investigation.
3.17 Compliance with Laws and Matters of Record. Satisfactory
documentary evidence that the Land, and the intended uses of the Land are in
compliance with all applicable laws, regulations and ordinances and private
covenants, easements, and conditions of record.
3.18 Plans and Specifications. As to each Approved Construction Loan,
two sets of the Plans which must have been approved in writing by Borrower and
the General Contractor either by
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initialing same or by other written approval identifying all pages and dates,
including revision dates. The Plans must include architectural, structural,
mechanical, plumbing, electrical and site development (including storm drainage
and utility lines) plans and specifications. The Plans for each type of proposed
residential unit must have been approved in accordance with governing
homeowners' documents and any other restrictions governing construction of
improvements, and written evidence of such approval shall be provided to Bank at
its request.
3.19 Permits. At Bank's request, a copy certified by Borrower of all
applicable permits including, without limitation, the building permit and all
permits pursuant thereto, excavation permits, tree removal permits, land
development permits, dredge and fill permits, stormwater discharge permits
(federal and state), and any other permits required for development and
completion of the Project.
3.20 Soil Tests. If required by Bank, a report as to soil borings and
tests made on the Land by a soil testing firm satisfactory to Bank as to the
suitability of the surface and subsoils for the intended improvements.
3.21 Environmental Assessment. If upon reasonable cause Bank shall so
require:
(a) An environmental assessment of the Land and Improvements
performed at Borrower's expense by a licensed engineer or other environmental
consultant satisfactory to Bank stating that:
(i) the Land is not located within any area
designated as a hazardous substance site by
any of the Governmental Authorities; and
(ii) no hazardous or toxic wastes or other
materials or substances regulated,
controlled, or prohibited by any federal,
state, or local environmental laws,
including but not limited to asbestos, are
located on the Land or Improvements; and
(iii) the Land has not been cited or investigated
in the past for any violation of any such
laws, regulations, or ordinances.
(b) If the environmental assessment shall reveal any condition
unacceptable to Bank and Borrower shall fail to cure or mitigate such condition
after request or demand by Bank, same shall constitute a Default hereunder and
in addition to all remedies available to Bank, Bank shall be relieved of any
obligation under the Commitment. If the environmental assessment recommends, or
if Bank so requests, in its sole and absolute discretion, a Phase II audit,
additional testing or remedial action, Borrower, at its sole cost and expense
shall promptly conduct such additional audits and testing and/or complete such
remedial action. Bank may require the Borrower to provide evidence that all
necessary actions have been taken to remove any hazardous substance
contamination and/or to restore the site to a condition acceptable to Bank and
state and federal governmental agencies.
3.22 Taxpayer Identification Number. Borrower's federal taxpayer
identification number.
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3.23 Borrower's Affidavit. An affidavit of Borrower regarding the
absence of any other parties in possession of the Land, stating that a notice of
commencement has not been filed with respect to the Property, the
non-commencement of Construction Work, and such other matters as may be
requested by Bank.
3.24 Commitment Fee. The commitment fee required by the Commitment
Letter.
3.25 Site Plan Approval. If requested by Bank, evidence that all
applicable governmental, quasi-governmental, or regulatory authorities have
approved Borrower's site plan for the Project. A copy of the recorded plat for
the Project shall be provided to Bank without cost or charge at Bank's request.
3.26 Facilities For Handicapped. Bank shall have received and approved
evidence, satisfactory to Bank, that the plans and specifications do, and the
Improvements, when constructed, will comply to the extent applicable with all
legal requirements regarding access and facilities for handicapped or disabled
persons, including, without limitation, and to the extent applicable, Part V of
the Florida Building Construction Standards Act entitled "Accessibility by
Handicapped Persons", Chapter 553, Fla. Stat.; the Federal Architectural
Barriers Act of 1988 (42 U.S.C. {4151, et. seq.), The Fair Housing Amendment Act
of 1988 (42 U.S.C. {3601, et. seq), The Americans With Disabilities Act of 1990
(42 U.S.C. {12101 et. seq.), and The Rehabilitation Act of 1973 (29 U.S.C.
{794).
3.27 Miscellaneous. All other Loan Documents or items that are
customarily provided in loan transactions of this type and all other loan
documents or items set forth in the Commitment.
3.28 No Defaults. No Default Condition or Default shall exist under the
Loan Documents.
3.29 Draw Request. Bank shall have received Borrower's Draw Request.
ARTICLE IV
Conditions Precedent to Disbursements Following the First Disbursement
4.1 Periodic Disbursements. Bank shall not be obligated to make any
Loan disburse ments as to an Approved Construction Loan after the first
disbursement until the following requirements and conditions have been and
remain satisfied as of the date of each such disbursement:
(a) The real estate is free and clear of all liens and
encumbrances except the Security Instrument of Bank.
(b) All evidence, statements and writings required to be
furnished under the terms of this Agreement are true and omit no material fact,
the omission of which may make them misleading.
(c) All moneys previously advanced have been used solely to
pay for financing, labor, materials and fixtures used or on hand and to be used
in the construction of Improvements.
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(d) No mechanic's or materialmen's lien or other encumbrance
shall have been filed and remain in effect against the Property.
(e) All terms of the Draw Requirements marked with an (x) on
the Loan Commitment have been complied with.
(f) At the time of the first advance there shall be no
construction on the Property and no material shall have been placed thereon to
be used in construction.
(g) No Event of Default, as herein defined, shall have
occurred.
(h) The construction has been in accordance with the Plans and
Specifications and satisfactory evidence thereof has been furnished Bank, and
all change orders for amounts in the aggregate in excess of 10% of the original
contract price for construction of Improvements have been approved in writing by
the Bank.
(i) In the sole opinion of Bank the estimated remaining cost
of construction in accordance with the approved Plans and Specifications does
not exceed the balance hereunder to be advanced.
(j) Bank may, at its option, retain up to 7% from the amount
of the last scheduled advance pending (i) Bank's receipt of a certificate of
completion executed by the general contractor; (ii) receipt by Bank of all lien
waivers required by Bank; and (iii) receipt by Bank of the Certificate of
Occupancy or local equivalent.
(k) All applicable construction permits issued by appropriate
governmental authorities and other necessary approvals have been issued and Bank
is satisfied that all roads necessary for ingress and egress to the Property
have been completed.
(l) The representations and warranties made in the Loan
Documents must be true and correct on and as of the date of each advance.
4.2 General Conditions of Disbursement. Construction financing under
the Loan shall be subject to the following limitations:
(a) Only residential units within the Project to be
constructed by Borrower shall be financed thereby;
(b) Any Loan Default declared by Bank shall render the entire
Loan in default, notwithstanding the fact that Default may relate directly only
to the construction of a specific unit. Accordingly, any Default shall cease
further funding of every nature under the Loan, at Bank's sole discretion.
(c) The Loan is a revolving line of credit for the purposes
stated herein. Consequently, funding from the Loan may be advanced by Bank,
repaid by Borrower, and subsequently readvanced by Bank, all subject to the
provisions of the Loan Documents. However, notwithstanding any contrary
provisions of said Loan Documents, the outstanding Loan principal plus remaining
committed funds available to complete construction of the units upon which
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construction has commenced under the Loan shall never exceed the face amount of
the Note at any one time.
(d) All units shall be commenced and shall thereafter progress
until the Loan maturity date, whereupon the entire outstanding indebtedness
evidenced by the Note shall be due and payable. Borrower shall bear all risks
that the units may not be completed by the Loan maturity date.
4.3 Limitations on Disbursements. If any of the above conditions are
not satisfied, as determined by Bank, in its sole discretion, Bank shall not be
obligated to disburse any Loan proceeds. In addition to the foregoing
requirements, Bank reserves the right to require the Borrower to furnish prior
to each disbursement at Borrower's expense: (a) a waiver of lien or release of
lien from any contractor, subcontractor, supplier, laborer or other lienor who
has furnished labor, materials, or other services for construction of the
Improvements or who has issued a Notice to Owner or filed a claim of lien; (b) a
certificate from the architect, engineer, or Bank's inspector, certifying that
the Improvements have been completed to date in accordance with the plans and
specifications or have been substantially completed in accordance with the plans
and specifications; (c) a foundation or as-built survey; (d) any permits,
certificate of occupancy, licenses, or other evidence of compliance with
applicable laws and building codes; (e) an endorsement to Bank's title policy or
other form of title update satisfactory to Bank evidencing that the Security
Instrument continues to be a first lien on the Property and that no intervening
liens or other encumbrances not consented to by Bank have been filed against the
Property since the recordation of the Security Instrument; (f) affidavit of the
Borrower that each person or entity supplying materials or performing labor or
services in connection with the Improvements has been paid in full; (g) such
other items as may be required by the Bank in its discretion.
4.4 Requirements for Disbursement at Completion. Bank shall not be
obligated to make the final construction disbursement as to an Approved
Construction Loan until all of the requirements and conditions set out in the
applicable Construction Loan Agreement have been and remain satisfied as of the
date of disbursement.
ARTICLE V
The Borrower's Covenants and Agreements
5.1 Payment and Performance. Borrower will pay when due all sums owing
to Bank under the Note, this Loan Agreement, the Mortgage and the other Loan
Documents, and perform all obligations as outlined or referenced therein.
5.2 Further Assurances. On demand by Bank, Borrower will do any act and
execute any additional documents reasonably required by Bank to secure the Loan,
to confirm or perfect the lien of the Security Documents or to comply with the
Commitment, including, but not limited to, additional financing statements or
continuation statements, new or replacement notes and/or Security Documents and
agreements supplementing, extending or otherwise modifying the Loan Documents,
certificates as to the amount of the indebtedness evidenced by the Note from
time to time, and certificates that Borrower knows of no defaults by or defenses
or set-offs against Lender.
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5.3 Construction. The Borrower will: (a) begin construction on the
Improvements as soon as practicable after closing on an Approved Construction
Loan, and in any event, within thirty (30) days after the date thereof; (b)
continue conscientiously the construction of the Improvements; (c) not
discontinue or permit the discontinuance of work on the Improvements for longer
than ten (10) consecutive business days, (d) in any event, complete the
Improvements, including installation of any required items of personalty in
substantial compliance with the Plans, free and clear of liens or claims of
liens for material supplied or for labor or services performed in connection
with the construction of the Improvements; (e) not file, prior to the recording
of the Mortgage, a Notice of Commencement for the Project; and (f) meet the
schedule for lot take-downs as described in Exhibit A attached.
5.4 Payment of Contractors. Borrower will advise Bank in writing
immediately if Borrower receives any notice, written or oral, from any laborer,
contractor, subcontractor, materialmen, or other party to the effect that said
party has not been paid for any labor, services, or materials furnished to or in
the Project, and Borrower will deliver to Bank on demand, any contracts, bills
of sale, statements, receipted vouchers or agreements, under which Borrower
claims title to any materials, fixtures or articles used in the construction of
the Improvements. Borrower shall comply with the Construction Contract Prompt
Payment Law contained in the Florida Construction Lien Law, Chapter 713, Fla.
Stat.
5.5 Fees and Expenses. Whether or not the Loan is made, or all Loan
proceeds disbursed hereunder, Borrower agrees to pay all expenses incurred by
Bank, or by Borrower in order to meet Bank's requirements, in connection with
the Loan, including without limitation, commitment and renewal fees or deposits
to Bank, fees for appraisal, environmental assessment, fees for builder's risk
and other insurance premiums, brokerage commissions and claims of brokerage,
property taxes, intangible taxes, documentary stamp taxes, architect's fees,
engineer's fees, the Construction Consultant's fees, the General Contractor's
fees, and such legal fees and costs incurred by Bank in connection with the
making of the Loan, the enforcement of Bank's rights under the Loan Documents,
arbitration, or in connection with litigation or threatened litigation by a
third party which arises because Bank made this Loan. Any such amounts paid by
Bank shall constitute part of the Debt which is secured by the Security
Documents, and shall be due and payable upon demand.
5.6 Use of Loan Funds. Borrower shall use all Loan proceeds disbursed
to Borrower solely in payment of costs incurred in connection with acquiring,
constructing, developing and operating the Project, in accordance with the Cost
Breakdown.
5.7 Insurance. Borrower covenants to maintain insurance as required
herein and in the Mortgage.
5.8 Taxes and Insurance. Upon the request of Bank, Borrower shall
submit to Bank such receipts and other statements which shall evidence, to the
satisfaction of Bank, that all taxes, assessments and insurance premiums have
been paid in full.
5.9 Title Policy. When requested by Bank during the Loan term, Borrower
shall provide an endorsement to the Title Policy certifying that (a) real estate
taxes due through such date have been paid; (b) no additional restrictions or
encumbrances are of record which have not been approved by Bank; and (c) no
liens or lis pendens have been filed against the Mortgaged Property.
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In the event that periodic title endorsements are not required to be issued in
connection with the title insurance, Borrower agrees to cause title endorsements
to be issued as reasonably required by Bank. When requested, after the final
disbursement of Loan proceeds, Borrower will provide Bank with an endorsement to
the Title Policy insuring the principal balance of the Loan and containing no
exceptions not approved by Bank.
5.10 Additional Construction. Borrower shall not construct or permit
the construction of any improvements on the Project other than those
Improvements described in the Plans, or approved in writing by Bank.
5.11 Financial Statements. Borrower will provide Bank with: (a)
quarterly 10-Q filings for International American Homes, Inc., including
internally prepared consolidating financial information for Xxxxxx Xxxxxxxx
Corporation and Xxxxxx Housing Corporation, within 60 days of the end of each
quarter; and (b) annual 10-K for International American Homes, Inc., including
consolidating financial information for Xxxxxx Xxxxxxxx Corporation and Xxxxxx
Housing Corporation, within 120 days of fiscal year end. Any individual
Guarantor shall provide personal financial statements on Bank's form annually
within 120 days of the anniversary date of a previously submitted financial
statement.
5.12 Appraisals. In addition to the appraisals required by Bank prior
to closing of the Loan and the individual Approved Construction Loans, updated
appraisals shall be prepared at Borrower's expense when requested by Bank or
when required in connection with any extension options in the Note. Such
appraisals shall be prepared in accordance with written instructions from Bank
and by a professional appraiser selected and engaged by Bank. Borrower shall
cooperate fully with the appraisal process and shall allow the appraisers
reasonable access to the Project and its tenants.
5.13 Hazardous Substances. Borrower affirms and incorporates by
reference the representations, warranties, terms, conditions, and indemnities
contained in that certain Hazardous Substance Certificate and Indemnification
Agreement of even date herewith, a copy of which is attached.
5.14 Leases Affecting Project. Borrower shall not, without the express
prior written consent of Bank, enter into any lease affecting the Project or any
part thereof.
5.15 Assignment of Contracts. As additional security for the Loan and
for the performance by Borrower of all of its obligations hereunder, Borrower
hereby assigns to Bank all of Borrower's interest in any and all contracts,
agreements, permits, licenses, approvals, or other documents or writings
relating to the construction, leasing, management or operation of the
Improvements, including but not limited to the Construction Documents, the
architect's contract, the engineer's contract, and the Plans. This assignment
shall not, however, be deemed to impose upon Bank any of Borrower's obligations
under any such contract. Incident to the assignment of the Construction
Documents, the architect's contract, the engineer's contract, and the Plans,
Borrower will fulfill the obligations of Borrower thereunder, enforce the
performance thereof and give immediate notice to Bank of any default by the
architect, the engineer, or the General Contractor thereunder. Further, Borrower
will not, without the prior written consent of Bank (i) modify, or amend the
terms of the architect's contract, the Plans, engineer's contract, or the
Construction Documents;
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or (ii) waive or release the performance of any material obligation to be
performed by the architect, the engineer, or the General Contractor thereunder.
5.16 Subordinate Financing. Borrower shall not permit there to exist
nor shall Borrower obtain any subordinate financing of the Land or any other
Property granted as security for the Loan.
5.17 Transfer of Property or Borrower. The Borrower shall not permit
any change in its ownership (or the ownership of its general partners, if
applicable), its corporate or trade name, the nature and operation of its
business or the nature and character of the Borrower or the Project, nor shall
the Borrower sell, assign, transfer, hypothecate or dispose of all or any
portion of the Property or the Project except as permitted hereby, without the
prior written consent of Bank, which consent shall be withheld or granted in
Bank's sole and absolute discretion.
5.18 Borrowing Base / Partial Releases of Property.
(a) Lender will fund under the Loan up to but not in excess of
an amount, referred to here as the Aggregate Maximum Allowable Funding, which is
from time to time the aggregate sum of the Maximum Allowable Funding amount for
all units and lots subject to the Loan. In calculating the Maximum Allowable
Funding, the amount which has been advanced or which is eligible to be advanced
on account of the underlying land lot is referred to herein as the Lot Advance.
The Maximum Allowable Funding amount for a pre-sold unit will be the sum of (1)
the Lot Advance, plus (2) the product of (a) the then current percentage of
completion of the unit, times (b) an amount which does not exceed 100% of the
unit cost breakdown (not including the Lot Advance) submitted by Borrower and
approved by Bank, nor the lesser of 1) 80% of the completed value of each unit,
which amount shall be determined by a valuation acceptable to Lender, less the
Lot Advance, or 2) 80% of the contracted purchase price of the unit, less the
Lot Advance. The Maximum Allowable Funding amount for a model or spec unit will
be the sum of (1) the Lot Advance, plus (2) the product of (a) the then current
percentage of completion of the unit, times (b) an amount which does not exceed
100% of the unit cost breakdown submitted by Borrower and approved by Bank, nor
80% of the completed value of each unit, less the Lot Advance. The Maximum
Allowable Funding amount for a lot will be the lesser of 1) 75% of Borrower's
cost, 2) 75% of the appraised value, or 3) not to exceed $35,000.00).
(b) Units or lots may be released from the lien of the
mortgage: (1) without a partial release payment if the Aggregate Maximum
Allowable Funding after subtracting the released lot or unit's Maximum Allowable
Funding from the collateral pool exceeds the then outstanding loan balance; (2)
otherwise, upon payment of the difference between the Aggregate Maximum
Allowable Funding after subtracting the released lot or unit's Maximum Allowable
Funding from the collateral pool and the then outstanding loan balance. Spec
units subject to the Loan shall be removed from the collateral pool after one
year. Model units subject to the Loan shall be removed from the collateral pool
after two years.
5.19 Disclosure of Contracts and Notices. Borrower shall disclose to
Bank upon demand, the names of all persons with whom Borrower has contracted or
intends to contract for any construction or for the furnishing of labor or
materials therefor, and when required by Bank obtain the approval by Bank of all
such persons. Borrower shall, at all times during the construction period of any
Improvements, provide to the Bank, within 10 days of the Borrower's receipt
thereof, copies of all notices to owner, claims of lien, and demands for sworn
statement of account, issued by any
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party, whether pursuant to any notice of commencement or otherwise, in
connection with the Premises.
5.20 Construction Lien Law Notification Requirements. Borrower hereby
authorizes Bank to provide written notices to Contractor and lienors providing
notices to owner pursuant to {713.3471 (1)(a), Fla. Stat., and {713.3471(2)(b),
Fla. Stat., to the extent such notices are required by law. Borrower hereby
releases Bank and waives all claims it may have against Bank for damages
Borrower may incur as a result of Bank's failure to deliver said notices.
Borrower hereby agrees to provide all required notices to the Contractor and all
lienors providing notices to owner in compliance with {713.3471(2)(a), Fla.
Stat., in a timely fashion.
5.21 Amendments to Construction Budget. Lender shall not be permitted
to reallocate items in the Construction Budget without the Borrower's prior
consent. For purposes of this and the preceding section, "Construction Budget"
shall mean for each Approved Construction Loan that portion of the Cost
Breakdown allocated to actual construction costs, not including non-construction
and land costs. If Borrower and Lender agree to amend the Construction Budget or
reallocate items in the Construction Budget such that written notice to the
Contractor and lienors serving notices to owner would be required under
ss.713.3471(2)(a), Fla. Stat. (1992), Borrower agrees to provide written notice
to the Contractor and all required lienors in compliance with ss.713.3471(2)(a),
Fla. Stat. Lender shall not be obligated to make any disbursements of Loan
proceeds until Borrower has provided Lender with copies of any required notices
to the Contractor and required lienors in compliance with ss.713.3471(2)(a),
Fla. Stat., together with evidence that such notices have been countersigned by
the Contractor and all lienors who are required to receive the notice under
ss.713.3471(2)(a), Fla. Stat., thereby confirming receipt thereof.
5.22 Americans With Disabilities Act. Borrower covenants and agrees
that, during the term of the Loan, to the extent such Act is applicable, the
Property will be in full compliance with the Americans with Disabilities Act
("ADA") of July 26, 1990, 42 U.S.C. Section 1191, et. seq.) as amended from time
to time, and the regulations promulgated pursuant thereto. Borrower shall be
solely responsible for all ADA compliance costs, including without limitation,
attorneys' fees and litigation costs, which responsibility shall survive the
repayment of the Loan and foreclosure of the Property.
ARTICLE VI
Representations and Warranties
6.1 Representations and Warranties. Borrower hereby represents and
warrants to Bank that:
(a) Representations and Warranties in Mortgage and Guaranty.
All of the representations and warranties contained in the Mortgage and Guaranty
are true and correct and are incorporated herein by reference as if set out in
full.
(b) Other Financing. The Borrower has not (i) received any
other financing for the acquisition of the Land existing as of the date hereof
for which a lien equal to or superior to
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Bank's mortgage could be successfully asserted, or (ii) received any other
financing for the construction of the Improvements.
(c) Plans. The Plans have been approved by the Borrower, the
Guarantors, and each appropriate Governmental Authority.
(d) Governmental Requirements and Other Requirements. Borrower
will cause the Improvements to be constructed in accordance with the Plans
submitted to and approved by Bank, and when so constructed the Land and the
Improvements do and shall comply with all covenants, conditions and restrictions
affecting the Land or any portion thereof, and do and shall comply with all
Govern mental Requirements.
(e) Use of the Project. There is no (i) plan, study or effort
by any Governmental Authority or any nongovernmental person or agency which may
adversely affect the current or planned use of the Project, or (ii) any intended
or proposed Governmental Requirement (including, but not limited to, zoning
changes) which may adversely affect the current or planned use of the Project.
(f) Moratorium. There is no moratorium or like governmental
order or restriction now in effect with respect to the Project and, to the best
of Borrower's knowledge, no moratorium or similar ordinance or restriction is
now contemplated.
(g) Permits. All permits, approvals and consents of
Governmental Authorities and public and private utilities having jurisdiction
necessary in connection with the Project have been issued and are in good
standing.
(h) Condition of Project. No defect or condition of the Land
or the soil or geology thereof exists which will impair the construction, use,
or the operation of the Project for its in tended purpose.
(i) Labor and Materials. All labor and materials contracted
for in connection with the construction of the Improvements shall be used and
employed solely on the Land in said construction and only in accordance with the
Plans.
(j) Surveys. The Survey, and all plot plans and other
documents heretofore furnished by the Borrower to Bank with respect to Land and
Improvements are accurate and complete as of their respective dates. There are
no encroachments onto the Land and no improvements on the Land encroach onto any
adjoining property.
(k) Construction Costs. The amount of the hard costs and soft
costs are accurate, true and correct and are satisfactory to Borrower.
(l) Sale of Securities. The Borrower has not instituted,
caused to be instituted or been a party to and, to the best of Borrower's
knowledge, there has not been any public offering with respect to the Land and
Improvements, or either, within the meaning of the Securities Act of 1933 and
the Securities Exchange Act of 1934.
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(m) Construction Lien Law. At the time of Closing and at the
time of the recording of the Security Instrument, no work has been done on
Improvements or on the Property by the Borrower or anyone else acting for, or on
behalf of the Borrower, and no materials have been placed on the Property by any
materialmen or by anyone else. No Notice of Commencement has been recorded in
the Public Records with respect to the Property at the time of Closing. Borrower
shall not permit the commencement of any excavation or construction work of any
nature whatsoever, nor the delivery of any materials to the Property, prior to
the recordation and posting of a Notice of Commencement as hereinafter set
forth. Borrower shall execute an appropriate Notice of Commencement and cause
the same to be recorded in the public records of the county in which the
Property is located in sequence after the recording of the Security Instrument.
Borrower shall post a certified copy of the Notice of Commencement on the
Property, in strict conformity with the Florida Construction Lien Law. If
construction is commenced prior to the recordation and posting of the Notice of
Commencement, or the Notice of Commencement is recorded prior to the Security
Instrument, Bank shall have the absolute right to cancel this Agreement and be
immediately reimbursed by Borrower for all disbursements of loan proceeds,
together with expenses and reasonable attorneys' fees incurred in connection
therewith. Construction shall commence within 90 days after recordation of the
Notice of Commencement. Construction shall proceed continuously in a workmanlike
manner. Bank reserves the right to require Borrower to furnish an itemized cost
breakdown for the Improvements to be constructed.
(n) Representations and Warranties in Other Loan Documents.
All of the representations and warranties contained in the other Loan Documents
are true and correct.
6.2 Reliance on Representations. The Borrower acknowledges that Bank
has relied upon the Borrower's representations and is not charged with any
knowledge contrary thereto that may be received by an examination of the public
records wherein the Land is located or that may have been received by any
officer, director, agent, employee or shareholder of Bank.
ARTICLE VII
Events of Default
7.1 Default. The occurrence of any one or more of the following events
(time being of the essence as to this Loan Agreement and all of its provisions)
constitutes a "Default" by Borrower under this Loan Agreement, and at the option
of Bank, under the other Loan Documents:
(a) Scheduled Payment. Borrower's failure to make any payment
required under the Note when due or within an applicable grace period, if any.
(b) Monetary Default. Borrower's failure to make any other
payment required by this Loan Agreement or the other Loan Documents within 15
days after demand therefor.
(c) Other. Borrower's failure to perform any other obligation
imposed upon Borrower by this Loan Agreement or any other Loan Document within
30 days after demand, or as may be specified by Bank, if in the sole opinion of
Bank such Default is curable. This provision shall not be construed to provide
Borrower with any grace period in complying with any obligations imposed on
Borrower by the terms of the Loan Documents.
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(d) Representation. Any representation or warranty of Borrower
contained in this Loan Agreement or in any certificate delivered pursuant
hereto, or in any other instrument or statement furnished in connection
herewith, proves to be incorrect or misleading in any adverse respect as of the
time when the same shall have been made, including, without limitation, any and
all. financial statements, operating statements, and schedules attached thereto,
furnished by Borrower or any guarantor of the Loan to Bank or pursuant to any
provision of this Loan Agreement.
(e) Bankruptcy. Borrower or any general partner of Borrower or
any guarantor of the Loan (i) files a voluntary petition in bankruptcy or a
petition or answer seeking or acquiescing in any reorganization or for an
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief for itself pursuant to the United State Bankruptcy Code or any similar
law or regulation, federal or state, relating to any relief for debtors, now or
hereafter in effect; or (ii) makes an assignment for the benefit of creditors or
admits in writing its inability to pay or fails to pay its debts as they become
due; or (iii) suspends payment of its obligations or takes any action in
furtherance of the foregoing; or (iv) consents to or acquiesces in the
appointment of a receiver, trustee, custodian, conservator, liquidator or other
similar official of Borrower, a general partner of Borrower, or any guarantor,
for all or any part of the Collateral or other assets of such party, or either;
or (v) has filed against it an involuntary petition, arrangement, composition,
readjustment, liquidation, dissolution, or an answer proposing an adjudication
of it as a bankrupt or insolvent, or is subject to reorganization pursuant to
the United States Bankruptcy Code, an action seeking to appoint a trustee,
receiver, custodian, or conservator or liquidator, or any similar law, federal
or state, now or hereinafter in effect, and such action is approved by any court
of competent jurisdiction and the order approving the same shall not be vacated
or stayed within thirty (30) days from entry; or (vi) consents to the filing of
any such petition or answer, or shall fail to deny the material allegations of
the same in a timely manner.
(f) Judgments. (1) A final judgment other than a final
judgment in connection with any condemnation is entered against Borrower,
Guarantors, or any general partner of Borrower, that (i) adversely affects the
value, use or operation of the Collateral (as defined in the Mortgage) in Bank's
sole judgment, or (ii) adversely affects, or may adversely affect, the validity,
enforceability or priority of the lien or security interest created by the
Mortgage or any other Loan Document in Bank's sole judgment, or both; or (2)
execution or other final process issues thereon with respect to the Collateral;
and (3) Borrower, Guarantors, or any general partner of Borrower, does not
discharge the same or provide for its discharge in accordance with its terms, or
procure a stay of execution thereon, in any event within thirty (30) days from
entry, or Borrower shall not, within such period or such longer period during
which execution on such judgment shall have been entered, and cause its
execution to be stayed during such appeal, or if on appeal such order, decree or
process shall be affirmed and Borrower shall not discharge such judgment or
provide for its discharge in accordance with its terms within sixty (60) days
after the entry of such order or decree or affirmance, or if any stay of
execution on appeal is released or otherwise discharged.
(g) Liens. Any federal, state or local tax lien or any claim
of lien for labor or materials or any other lien or encumbrance of any nature
whatsoever is recorded against Borrower or the Mortgaged Property (as defined in
the Mortgage) and is not removed by payment or transferred to substitute
security in the manner provided by law, within ten (10) days after it is
recorded in accordance with applicable law.
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(h) Other Notes or Mortgages. Borrower's default in the
performance or payment of Borrower's obligations under any other note, or under
any other mortgage encumbering all or any part of the Mortgaged Property, if the
other mortgage is permitted by the Bank, whether such other note or mortgage is
held by Bank or by any other party.
(i) Borrower Default Under Loan Documents. Borrower's default
in the payment or performance of any of Borrower obligations under any of the
Loan Documents, including this Loan Agreement and any riders thereto.
(j) Guarantor Default. The death of a guarantor, or any
default in the payment or performance of any obligation of any guarantor of the
Note arising under its guaranty or pursuant to any other Loan Document.
(k) Borrower's Continued Existence. Borrower shall cease to
exist or to be qualified to do or transact business in the State in which the
Mortgaged Property is located, or shall be dissolved or shall be a party to a
merger or consolidation, or shall sell all or substantially all of its assets,
or shall change its corporate name or trade name without prior written notice to
Bank.
(l) Stock in Borrower/Change in Partners. If Borrower is a
partnership and without the prior written consent of Bank, any shares of stock
of any corporate general partner of Borrower are issued, sold, transferred,
conveyed, assigned, mortgaged, pledged, or otherwise disposed of so as to result
in change. of control of Borrower, whether voluntarily or by operation of law,
and whether with or without consideration, or any agreement for any of the
foregoing is entered into; or, if any general partnership interest or other
equity interest in the Borrower is sold, transferred, assigned, conveyed,
mortgaged, pledged, or otherwise disposed or, whether voluntarily or by
operation of law, and whether with or without consideration, or any agreement
for any of the foregoing is. entered into, or any general partner of Borrower
withdraws from the partnership.
(m) Transfer of Property or Ownership. Any sale, conveyance,
transfer, assignment, or other disposition or encumbrance of all or any part of
the Collateral or any ownership interest in Borrower or any guarantor without
the prior consent of Bank or except as otherwise permitted hereby.
(n) False Statement. Any statement or representation of
Borrower or any guarantor contained in the loan application or any financial
statements or other materials furnished to Bank or any other lender prior or
subsequent to the making of the Loan secured hereby are discovered to have been
false or incorrect or incomplete.
(o) Default Under Indemnity. Borrower or any guarantor shall
default under any obligation imposed by any indemnity whether contained within
any of the Loan Documents, the Hazardous Waste Certification and
Indemnification, or otherwise.
(p) Cross Default. Any default by the Borrower under any other
documents or instruments evidencing any other loans by Bank to Borrower or in
any mortgages or other collateral documents securing such loans.
(q) Non-Compliance with the Plans and Specifications. Failure
of any of the materials supplied for the construction of the Improvements to
comply with the Plans and
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Specifications or any requirements of any Governmental Authority unless the
Borrower undertakes and diligently pursues the correction of such failure.
(r) Projected Completion of Construction. Failure to construct
the Improvements with reasonable dispatch, or the discontinuance of construction
at any time for a period of 10 days consecutively, or determination by Bank's
Construction Consultant that construction of the Improvements will not be timely
completed and Borrower's failure to complete, cure or provide satisfactory
assurances after notice or demand from Bank.
(s) Non-Payment of Debts. Borrower is generally not paying its
debts as such debts become due.
(t) Securities Laws Violation. The assertion of any violation
of the 1933 Securities Act, 1934 Securities Act or the Florida Blue Sky Laws by
any Governmental Authorities or the institution of any securities litigation not
dismissed within sixty (60) days of the commencement of same.
(u) Non-Compliance with Homeowner Association Documents.
Borrower shall fail to perform any duty required of it, fulfill any condition,
abide by any covenant or in any manner default under the homeowners' association
documents encumbering the Project, if any.
(v) Adverse Actions. Any legal or equitable action is
commenced against Borrower which, if adversely determined, could reasonably be
expected to impair substantially the ability of Borrower to perform each and
every obligation under the Loan Documents and this Agreement.
(w) Government Challenges. The validity of any permit,
approval or consent by any Governmental Authority relating to the Property, the
Improvements, or the operation thereof is challenged by a proceeding before a
board, commission, agency, court or other authority having jurisdiction.
(x) Miscellaneous. If at any time the Bank shall determine
that there has been a material adverse change in the financial condition or
prospects of Borrower, any guarantor, or if applicable any general partner of
Borrower, which is not corrected or cured, after reasonable notice from Bank.
ARTICLE VIII
Bank's Rights and Remedies
The following rights and remedies are available to Bank:
8.1 Acceleration. Upon the occurrence of a Default, the entire unpaid
principal balance of the Loan and all accrued but unpaid interest thereon and
any costs or expenses then due to Bank and any and all other obligations of
Borrower to Bank, shall, at the option of Bank and without notice to Borrower,
become immediately due and payable.
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8.2 Completion of Construction. From and after the occurrence of a
Default, Bank shall be entitled to have and use the Plans and the Construction
Documents and, after first having given written notice to the architect, the
engineer, or the General Contractor, shall be entitled from and after such
notice to enjoy and enforce all of the rights of Borrower under the architect's
contract, engineer's contract, the Plans or the Construction Contracts. Borrower
hereby irrevocably constitutes and appoints Bank its true and lawful
attorney-in-fact with full power of substitution in the Project to complete the
Improvements in the name of Borrower. Borrower hereby empowers Bank as it
attorney-in-fact as follows: (a) to use any funds of Borrower, including any
Loan proceeds or equity deposits which may remain undisbursed hereunder, for the
purpose of completing the Improvements in accordance with the Plans; (b) to make
such additions, changes, modifications, or corrections in, or deviations from,
the Plans as shall be necessary or desirable to complete the Improvements; (c)
to employ such contractors, subcontractors, agents, architects, engineers,
inspectors, or other parties as shall be required for said purposes; (d) to pay,
settle, or compromise all existing bills and claims which may be liens against
the Improvements or as may be necessary or desirable in the sole discretion of
Bank for the Completion of the Improvements or for clearance of title; (e) to
direct use of and/or use all or any part of the labor, materials, supplies and
equipment contracted for, owned by, or under the control of Borrower, whether or
not previously incorporated into the Improvements; (f) to execute all
applications and certificates in the name of Borrower which may be required by
the Construction Documents, the architect's contract, the engineer's contract,
Plans, or any of the contract documents; (g) to prosecute and defend all actions
or proceedings in connection with the Project or the construction of the
Improvements and take such action and require such performance as Bank shall
deem necessary under any performance or payment bond; and (h) to do any and
every act with respect to construction or Completion of the Improvements or the
closing of any permanent financing which Borrower might do in its own behalf
including, without limitation, execution, acknowledgment, and delivery of all
instruments, documents, and papers in the name of Borrower as may be necessary
or desirable in the sole discretion of Bank. It is further understood and agreed
that this power of attorney which shall be deemed to be a power coupled with an
interest, cannot be revoked. All sums expended by Bank pursuant hereto shall be
deemed to have been disbursed to Borrower and secured by the Security Documents,
and the other Loan Documents.
8.3 Disputes. Where disputes have arisen which, in the opinion of Bank,
may endanger timely completion of the Improvements or fulfillment of any
condition or covenant herein, Bank may agree to disburse Loan proceeds for the
account of Borrower without prejudice to Borrower's rights, if any, to recover
said proceeds from the party to whom paid. Such agreement or agreements may take
the form which Bank in its discretion deems proper, including, but without
limiting the generality of the foregoing, agreements to indemnify (on behalf of
Borrower and/or for Bank's own account) any title insurer against possible
assertion of lien claims, agreements to pay disputed amounts and the like. All
sums paid or agreed to be paid pursuant to such undertaking shall be advances of
Loan proceeds.
8.4 Remedies Cumulative; Nonwaiver. All remedies of Bank provided for
herein or in the other Loan Documents are cumulative and shall be in addition to
any and all other rights and remedies provided for or available under the other
Loan Documents, at law or in equity. The exercise of any right or remedy by Bank
hereunder shall not in any way constitute a cure or waiver of a Default
Condition or a Default hereunder or under the Loan Documents, or invalidate any
act done pursuant to any notice of the occurrence of a Default Condition or
Default, or prejudice Bank
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in the exercise of any of its rights hereunder or under any of the other Loan
Documents, unless, in the exercise of said rights, Bank realizes all amounts
owed to it under the Loan Documents.
8.5 No Liability of Bank. Whether or not Bank elects to employ any or
all remedies available to it in the event of an occurrence of a Default
Condition or Default, Bank shall not be liable for the construction of or
failure to construct or complete or protect the Improvements or for payment of
any expense incurred in connection with the exercise or any remedy available to
Bank or for the construction or Completion of the Improvements or for the
performance or nonperformance of any other obligation of Borrower.
8.6 Security Interest. It is understood and agreed that Bank shall have
and enjoy and is hereby granted a lien on, and a security interest in, all
Collateral described in the Mortgage, and including without limitation, any and
all materials (stored on-site or off-site), reserves, deferred payments,
deposits or advance payments for materials (stored on-site or off-site)
undisbursed Loan proceeds, insurance refunds, impound accounts, refunds for
overpayment of any kind, and such lien and security interest shall constitute
additional security for the Debt of Borrower, and Bank shall have and possess
any and all rights and remedies of a secured party provided by law with respect
to enforcement of and recovery on its security interest on such items and
amounts. In the event of a conflict between this paragraph and any security
interest granted pursuant to the Mortgage, the Mortgage shall control.
8.7 Cessation of Funding. Upon the occurrence of a Default, Bank shall
have the right to immediately terminate further funding of any Approved
Construction Loan irrespective of the stage of completion, and to terminate
consideration of applications for new Approved Construction Loans.
ARTICLE IX
General Conditions
The following general conditions shall be applicable throughout the
term of this Loan Agreement:
9.1 Waivers. No waiver of any Default Condition or Default or breach by
Borrower hereunder shall be implied from any delay or omission by Bank to take
action on account of such Default Condition or Default, and no express waiver
shall affect any Default Condition or Default other than the Default specified
in the waiver and it shall be operative only for the time and to the extent
therein stated. Waivers of any covenants, terms or conditions contained herein
must be in writing and shall not be construed as a waiver of any subsequent
breach of the same covenant, term or condition. The consent or approval by Bank
to or of any act by Borrower requiring further consent or approval shall not be
deemed to waive or render unnecessary the consent or approval to or of any
subsequent or similar act. No single or partial exercise of any right or remedy
of Bank hereunder shall preclude any further exercise thereof or the exercise of
any other or different right or remedy.
9.2 Benefit. This Loan Agreement is made and entered into for the sole
protection and benefit of Bank and Borrower, their successors and assigns, and
no other person or persons have
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any right to action hereon or rights to the Loan all proceeds at any time, nor
shall Bank owe any duty whatsoever to any claimant for labor or services
performed or material furnished in connection with the Project, or to apply any
undisbursed portion of the Loan to the payment of any such claim, or to exercise
any right or power of Bank hereunder or arising from any Default Condition or
Default by Borrower.
9.3 Assignment. The terms hereof shall be binding upon and inure to the
benefit of the heirs, successors, assigns, and personal representatives of the
parties hereto; provided, however, that Borrower shall not assign this Loan
Agreement or any of its rights, interests, duties or obligations hereunder or
any Loan proceeds or other moneys to be advanced hereunder in whole or in part
without the prior written consent of Bank and that any such assignment (whether
voluntary or by operation of law) without said consent shall be void. It is
expressly recognized and agreed that Bank may assign this Loan Agreement, the
Note, the Security Documents, and any other Loan Documents, in whole or in part,
to any other person, firm, or legal entity provided that all of the provisions
hereof shall continue in full force and effect and, in the event of such
assignment, Bank shall thereafter be relieved of all liability under the Loan
Documents and any Loan disbursements made by any assignee shall be deemed made
in pursuant and not in modification hereof and shall be evidenced by the Note
and secured by the Security Documents and any other Loan Documents.
9.4 Amendments. This Loan Agreement shall not be amended except by a
written instrument signed by all parties hereto.
9.5 Terms. Whenever the context and construction so require, all words
used in the singular number herein shall be deemed to have been used in the
plural, and vice versa, and the masculine gender shall include the feminine and
neuter and the neuter shall include the masculine and feminine.
9.6 Governing Law and Jurisdiction. This Loan Agreement and the other
Loan Documents and all matters relating thereto shall be governed by and
construed and interpreted in accordance with the laws of the State of Florida.
Borrower [and all of its general partners] hereby submits to the jurisdiction of
the state and federal courts located in Florida and agree that Bank may, at its
option, enforce its rights under the Loan Documents in such courts.
9.7 Publicity. At Bank's request and expense, and subject to applicable
laws, regulations and restrictions, Borrower shall place upon the Project, at a
location mutually acceptable to Borrower and Bank, a sign or signs advertising
the fact that financing is being provided by Bank. Bank shall also have the
right to secure printed publicity through newspaper and other media concerning
the Project and source of financing.
9.8 Savings Clause. Invalidation of any one or more of the provisions
of this Loan Agreement shall in no way affect any of the other provisions
hereof, which shall remain in full force and effect.
9.9 Execution in Counterparts. This Loan Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original, but
all of which shall constitute one and the same instrument, and in making proof
of this Loan Agreement, it shall not be necessary to produce or account for more
than one such counterpart.
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9.10 Captions. The captions herein are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
of this Loan Agreement nor the intent of any provision hereof.
9.11 Notices. All notices required to be given hereunder sh all be
given in accordance with the requirements of the Mortgage.
9.12 Mandatory Arbitration. Any controversy or claim between or among
the parties hereto including but not limited to those arising out of or relating
to this Loan Agreement or any related agreements or instruments, including any
claim based on or arising from an alleged tort, shall be determined by binding
arbitration in accordance with the Federal Arbitration Act (or if not
applicable, the applicable state law), the Rules of Practice and Procedure for
the Arbitration of Commercial Disputes of Judicial Arbitration and Mediation
Services, Inc. (J.A.M.S.), and the "Special Rules" set forth below. In the event
of any inconsistency, the Special Rules shall control. Judgment upon any
arbitration award may be entered in any court having jurisdiction. Any party to
this Loan Agreement may bring an action, including a summary or expedited
proceeding, to compel arbitration of any controversy or claim to which this Loan
Agreement applies in any court having jurisdiction over such action.
(a) Special Rules. The arbitration shall be conducted in
Tampa, Florida, and administered by Endispute, Inc., d/b/a J.A.M.S./Endispute
who will appoint an arbitrator; if J.A.M.S./Endispute is unable or legally
precluded from administering the arbitration, then the American Arbitration
Association will serve. All arbitration hearings will be commenced within 90
days of the demand for arbitration; further, the arbitrator shall only, upon a
showing of cause, be permitted to extend the commencement of such hearing for up
to an additional 60 days.
(b) Reservation of Rights. Nothing in this Loan Agreement
shall be deemed to (i) limit the applicability of any otherwise applicable
statutes of limitation or repose and any waivers contained in this Loan
Agreement; or (ii) be a waiver by the Bank of the protection afforded to it by
12 U.S.C. Sec. 91 or any substantially equivalent state law; or (iii) limit the
right of the Bank hereto (A) to exercise self help remedies such as (but not
limited to) setoff, or (B) to foreclose against any real or personal property
collateral, or (C) to obtain from a court provisional or ancillary remedies such
as (but not limited to) injunctive relief or the appointment of a receiver. The
Bank may exercise such self help rights, foreclose upon such property, or obtain
such provisional or ancillary remedies before, during or after the pendency of
any arbitration proceeding brought pursuant to this Agreement. At Bank's option,
foreclosure under a deed of trust or mortgage may be accomplished by any of the
following: the exercise of a power of sale under the deed of trust or mortgage,
or by judicial sale under the deed of trust or mortgage, or by judicial
foreclosure. Neither this exercise of self help remedies nor the institution or
maintenance of an action for foreclosure or provisional or ancillary remedies
shall constitute a waiver of the right of any party, including the claimant in
any such action, to arbitrate the merits of the controversy or claim occasioning
resort to such remedies.
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ARTICLE X
Special Conditions
The following special conditions shall be applicable throughout the
term of this Loan Agreement:
10.1 Financial Terms and Covenants. Borrower will at all times report
its financial condition using generally accepted accounting principles
consistently applied, except to the extent modified by the following
definitions:
(a) Tangible Net Worth: "Tangible Net Worth" is defined
as the aggregate of total shareholders' equity plus
any debt to Related Parties (as hereinafter defined)
which are subordinated to the Loan, less any
intangible assets and any obligations due from
shareholders, partners, employees, and/or affiliates.
(b) Ratio of Total Debt to Tangible Net Worth: The "Ratio
of Total Debt to Tangible Net Worth, is defined as
the aggregate of current liabilities and non-current
liabilities (excluding contingent liabilities and
non-recourse bonds) less subordinated loans from
Related Parties (as hereinafter defined), divided by
Tangible Net Worth.
(c) Related Parties: "Related Parties" shall mean the
partners or shareholders of Borrower, or any
corporations, trusts, partnerships, or other entities
in which Borrower owns directly, or indirectly, a 51%
interest. Financial covenants in the Xxxxxxx Loan
documents will be superseded and replaced by the
foregoing covenants.
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IN WITNESS WHEREOF, Borrower and Bank have executed this Loan Agreement
as of the above written date.
Xxxxxx Housing Corporation,
a Florida corporation
[Seal]
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------- --------------------
Witness XXXXXX X. XXXXX
/s/ Its: President
-------------------- --------------------
Witness
"Borrower"
Xxxxxxx Bank, N.A., a
national banking association
[Seal]
By:
-------------------- --------------------
Witness
-------------------- --------------------
Witness Its:
"Bank"
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JOINDER OF GUARANTOR
The undersigned as Guarantor hereby joins in and consents to the
foregoing Loan Agreement.
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------- --------------------
Witness XXXXXX X. XXXXX Xxxxxx X. Xxxxxx,
individually
/s/
--------------------
Witness
International American Homes, Inc., a
Delaware corporation
{Seal}
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------- --------------------
Witness XXXXXX X. XXXXX
/s/ Its: President
-------------------- --------------------
Witness
"Guarantor"
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EXHIBITS
A Draw Sheets
B Hazardous Substance Certificate and Indemnification Agreement
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