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EXHIBIT 10.15
LOAN AGREEMENT
THIS AGREEMENT is made as of March 31, 1997, between LEGEND
PROPERTIES, INC., as Borrower, and RGI HOLDINGS, INC., as Lender.
SECTION 1. THE CREDIT.
1.1 AGREEMENT TO LEND. Lender agrees on the terms and
conditions of this Agreement to make loans ("LOANS") to Borrower during the
period beginning on the date of this Agreement and ending December 31, 1997
(the "COMMITMENT PERIOD") in the aggregate principal sum of $8,500,000 (the
"COMMITMENT").
1.2 MANNER OF BORROWING. Borrower shall give Lender at least
two Business Days' written notice of each borrowing. Each notice shall specify
the date of borrowing (which shall be a Business Day) and the amount of the
Loan. Every notice of borrowing shall be irrevocable and shall constitute a
representation and warranty by Borrower that as of the date of the notice the
statements in Section 3 are true and correct and no Default has occurred and
is continuing. Subject to the conditions set forth in Section 2, Lender will
disburse the Loan by crediting the proceeds to the checking account maintained
by Borrower at U.S. Bank of Washington.
1.3 REPAYMENT OF PRINCIPAL. Borrower shall repay to Lender
the principal of the Loans on or before December 31, 1997.
1.4 INTEREST. Borrower agrees to pay interest on the unpaid
principal of the Loans at a per annum rate equal to the Prime Rate plus two
percent (2%). Accrued interest on the Loans shall be payable at the same time
principal is paid pursuant to Section 1.3 above, except that interest shall be
payable on demand after a Default.
1.5 PROMISSORY NOTE. The Loans shall be evidenced by and
repayable with interest in accordance with a promissory note of Borrower
payable to the order of Lender in substantially the form of Exhibit A, dated
the date of this Agreement, and in the principal amount of the Commitment (the
"NOTE").
1.6 PREPAYMENT. Borrower shall have the right to prepay the
Loans in whole or in part at any time.
1.7 MANNER OF PAYMENTS.
(a) All payments and prepayments of principal and
interest on the Loans and all other amounts payable by Borrower under the Loan
Documents shall be made by paying the same in Dollars and in immediately
available funds to Lender at 1420
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Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000-0000 not later than 10:00
a.m., Seattle time, on the date on which such payment or prepayment shall
become due.
(b) Borrower hereby authorizes Lender, if and to the
extent any payment is not promptly made pursuant to the Loan Documents, to
charge from time to time against any or all of the accounts of Borrower with
Lender or any affiliate of Lender any amount due under the Loan Documents.
(c) All computations of interest and fees shall be
made on the basis of a year of 365 days for the actual number of days
(including the first day but excluding the last day) occurring in the period
for which such interest or fees are payable.
(d) Whenever any payment shall be stated to be due,
or whenever the last day of any interest period would otherwise occur, on a day
other than a Business Day, such payment shall be made and the last day of such
interest period shall occur on the next succeeding Business Day and such
extension of time shall in such case be included in the computation of payment
of interest or commitment fees, as the case may be.
(e) Any payment made by Borrower shall be applied,
first, against fees, expenses and indemnities due under the Loan Documents;
second, against interest due on amounts in default, if any; third, against
interest due on amounts not in default; and fourth against principal.
SECTION 2. CONDITIONS OF LENDING.
2.1 THE INITIAL LOAN. The obligation of Lender to make the
initial Loan is subject to fulfillment of the following conditions.
(a) LOAN DOCUMENTS. Lender shall have received the
Loan Documents, each duly executed and delivered.
(b) CORPORATE AUTHORITY. Lender shall have received
in form and substance satisfactory to it (i) a certified copy of a resolution
adopted by the board of directors of the Borrower authorizing the execution,
delivery and performance of the Loan Documents and the borrowing hereunder,
(ii) evidence of the authority and specimen signatures of the persons who have
signed this Agreement and who will sign the other Loan Documents on behalf of
Borrower, and (iii) such other evidence of corporate authority as Lender shall
reasonably require.
(c) REAL PROPERTY SECURITY. Lender shall have
received evidence satisfactory to it in form and substance
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concerning the perfection and priority of its Lien on the Mortgaged Property,
including evidence of the due recording of the Deeds of Trust in Virginia,
Maryland and California.
2.2 EACH LOAN. The obligation of Lender to make any Loan is
subject to fulfillment of the following conditions.
(a) NOTICE OF BORROWING. Lender shall have received
due notice of borrowing pursuant to Section 1.2.
(b) SETTLEMENT OF CLASS ACTION LITIGATION. The class
action litigation filed against Borrower in Delaware relating to the merger of
RGI Holdings, Inc. and Borrower shall have been settled and dismissed with
prejudice on terms and conditions satisfactory to Lender, provided, however,
that Lender may at its sole discretion make Loans to Borrower prior to such
settlement and dismissal if Lender is satisfied that sufficient progress is
being made toward such a settlement and dismissal. In connection with such
settlement and dismissal, Lender shall receive a legal opinion satisfactory to
it in form and substance confirming that the merger was validly entered into
and cannot be contested by the shareholders of Borrower or any other party.
(c) DEFAULTS, ETC. At the date of the Loan no
Default shall have occurred and be continuing or will occur as a result of the
making of the Loan and the representations of Borrower in Section 3 shall be
true on and as of such date with the same force and effect as if made on and as
of such date.
(d) OTHER INFORMATION. Lender shall have received
such other statements, opinions, certificates, documents and information as it
may reasonably request with respect to the matters contemplated by the Loan
Documents, including the proposed use of each Loan, which use shall be subject
to approval by Lender (such approval not to be unreasonably withheld).
SECTION 3. REPRESENTATIONS AND WARRANTIES. Borrower represents and
warrants to Lender as follows:
3.1 CORPORATE EXISTENCE AND POWER. Borrower is a corporation
duly incorporated, validly existing and in good standing under the laws of
Delaware, is qualified to do business in each other jurisdiction where the
conduct of its business or the ownership of its properties requires such
qualification, and has full corporate power, authority and legal right to carry
on its business as presently conducted, to own and operate its properties and
assets, and to execute, deliver and perform the Loan Documents.
3.2 CORPORATE AUTHORIZATION. The execution, delivery and
performance by Borrower of the Loan Documents and any
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borrowing hereunder have been duly authorized by all necessary corporate action
of Borrower, do not require any shareholder approval or the approval or consent
of any trustee or the holders of any Indebtedness of Borrower, do not
contravene any law, regulation, rule or order binding on it or its articles of
incorporation or bylaws and do not contravene the provisions of or constitute a
default under any indenture, mortgage, contract or other agreement or
instrument to which Borrower is a party or by which Borrower or any of its
properties may be bound or affected.
3.3 [INTENTIONALLY LEFT BLANK]
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3.6 FINANCIAL CONDITION. The balance sheet of Borrower as at
December 31, 1996, and the related statements of income and cash flows of
Borrower for the fiscal year then ended, copies of which have been furnished to
Lender, fairly present the financial condition of Borrower as at such date and
the results of operations of Borrower for the period then ended, all in
accordance with generally accepted accounting principles consistently applied.
Borrower did not have on such date any material contingent liabilities, unusual
forward or long-term commitments or unrealized or anticipated losses from any
unfavorable commitments, except as referred to or reflected or provided for in
that balance sheet and in the notes to those financial statements and since
that date there has been no material adverse change in the financial condition
or operations of Borrower.
3.7 TITLE AND LIENS. Borrower has good and marketable title
to each of the properties and assets reflected in its balance sheet referred to
in Section 3.6 except such as have been since sold or otherwise disposed of in
the ordinary course of business. No assets or revenues of Borrower are subject
to any Lien except as required or permitted by this Agreement or disclosed in
the balance sheet referred to in Section 3.6 or otherwise previously disclosed
to Lender in writing. All properties of Borrower and Borrower's use thereof
comply with applicable zoning and use restrictions and with applicable laws and
regulations relating to the environment.
3.8 TAXES. Borrower has filed all tax returns and reports
required of it, has paid all Taxes which are due and payable, and has provided
adequate reserves for payment of any Tax whose payment is being contested. The
charges, accruals and reserves on the books of Borrower in respect of Taxes for
all fiscal periods to date are accurate and there are no questions or
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disputes between Borrower and any Governmental Authority with respect to any
Taxes except as disclosed in the balance sheet referred to in Section 3.6 or
otherwise previously disclosed to Lender in writing.
3.9 OTHER AGREEMENTS. Borrower is not in material breach of
or default under any agreement to which it is a party or which is binding on it
or any of its assets.
3.10 ERISA. Since the effective date of ERISA, no Plan or
trust thereunder has been terminated, has engaged in any "prohibited
transactions" (as defined in ERISA), or has incurred any "accumulated funding
deficiency" (as defined in ERISA) whether or not waived, and there has been no
"reportable event" (as defined in ERISA) with respect to any Plan.
3.11 LIEN PRIORITY. On the date of each Loan, Lender will
have as security for such Loan a perfected Lien in the Mortgaged Property and
in the personal property and fixtures described in the Deeds of Trust, subject
only to prior liens and encumbrances approved by Lender ("Permitted
Exceptions").
SECTION 4. AFFIRMATIVE COVENANTS. So long as Lender shall have any
Commitment hereunder and until payment in full of the Loans and performance of
all other obligations of Borrower under the Loan Documents, Borrower agrees to
do all of the following unless Lender shall otherwise consent in writing.
4.1 USE OF PROCEEDS. Use the proceeds of the Loans
exclusively for working capital or other general corporate purposes, including
refinancing previous short-term advances made by Lender to Borrower in the
aggregate principal amount of $2,600,000.
4.2 PAYMENTS. Pay the principal of and interest on the Loans
in accordance with the terms of this Agreement and will pay when due all other
amounts payable by Borrower under the Loan Documents.
4.3 PRESERVATION OF CORPORATE EXISTENCE, ETC. Preserve and
maintain its corporate existence, rights, franchises and privileges in the
jurisdiction of its incorporation and qualify and remain qualified as a foreign
corporation in each jurisdiction where such qualification is necessary or
advisable in view of the business and operations of Borrower or the ownership
of its properties.
4.4 [INTENTIONALLY LEFT BLANK]
4.5 [INTENTIONALLY LEFT BLANK]
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4.6 [INTENTIONALLY LEFT BLANK]
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4.11 NOTIFICATION. Promptly after learning thereof, notify
Lender of (a) any action, proceeding, investigation or claim against or
affecting Borrower instituted before any court, arbitrator or Governmental
Authority or, to Borrower's knowledge threatened to be instituted, which if
determined adversely to Borrower would be likely to have a material adverse
effect on the financial condition or operations of Borrower, or to impair
Lender's Lien on Collateral or Borrower's rights therein, or to result in a
judgment or order against Borrower (in excess of insurance coverage) for more
than $100,000 or, when combined with all other pending or threatened claims,
more than $1,000,000; (b) any substantial dispute between Borrower and any
Governmental Authority; (c) any labor controversy which has resulted in or, to
Borrower's knowledge, threatens to result in a strike which would materially
affect the business operations of Borrower; (d) any "reportable event" (as
defined in ERISA) with respect to any Plan; and (e) the occurrence of any
Default.
4.12 ADDITIONAL PAYMENTS; ADDITIONAL ACTS. From time to
time, (a) pay or reimburse Lender on request for all expenses, including legal
fees, actually incurred by Lender in connection with the preparation of the
Loan Documents and the making of the Loans or the enforcement by judicial
proceedings or otherwise of any of the rights of Lender under the Loan
Documents; (b) obtain and promptly furnish to Lender evidence of all such
Government Approvals as may be required to enable Borrower to comply with its
obligations under the Loan Documents; and (c) execute and deliver all such
instruments (such as Uniform Commercial Code continuation statements) and
perform all such other acts as Lender may reasonably request to carry out the
transactions contemplated by the Loan Documents and to maintain the continuous
perfection and priority of Lender's Lien on all Collateral.
SECTION 5. NEGATIVE COVENANTS. So long as Lender shall have any
Commitment hereunder and until payment in full of the Loans and performance of
all other obligations of Borrower under the Loan Documents, Borrower agrees
that it will not do any of the following unless Lender shall otherwise consent
in writing.
5.1 DIVIDENDS, PURCHASE OF STOCK, ETC. Declare or pay any
dividend (except dividends payable in its capital stock) on
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any shares of any class of its capital stock or apply any assets to the
purchase, redemption or other retirement of, or set aside any sum for the
payment of any dividends on or for the purchase, redemption or other retirement
of, or make any other distribution by reduction of capital or otherwise in
respect of, any shares of any class of capital stock of Borrower.
5.2 LIQUIDATION, MERGER, SALE OF ASSETS. Liquidate, dissolve
or enter into any merger, consolidation, joint venture, partnership or other
combination nor sell, lease, or dispose of all or any substantial portion of
its business or assets or of any Collateral (excepting sales of properties in
the ordinary course of business).
5.3 INDEBTEDNESS. Create, incur or become liable for any
Indebtedness except (a) the Loans, (b) existing Indebtedness reflected on the
balance sheet referred to in Section 3.6 or otherwise previously disclosed to
Lender in writing (except any renewal or extension of such Indebtedness or any
portion thereof to a date on or before the final maturity of any Loans), (c)
current accounts payable or accrued, incurred by Borrower in the ordinary
course of business, and (d) Indebtedness for the deferred purchase price, or
for obligations under leases, of real or personal property used by Borrower in
its business, but not exceeding the aggregate sum of $500,000 at any time.
5.4 GUARANTIES, ETC. Assume, guaranty, endorse or otherwise
become directly or contingently liable for, nor obligated to purchase, pay or
provide funds for payment of, any obligation or Indebtedness of any other
person, except by endorsement of negotiable instruments for deposit or
collection or by similar transactions in the ordinary course of business.
5.5 LIENS. Create, assume or suffer to exist any Lien except
(a) Liens in favor of Lender, (b) existing Liens reflected in the balance sheet
referred to in Section 3.6 or otherwise previously disclosed to Lender in
writing, (c) involuntary Liens, and (d) Liens to secure Indebtedness permitted
by Section 5.3(d) for the deferred price of property, but only if they are
limited to such property and its proceeds and do not exceed 80% of the fair
market value thereof.
SECTION 6. EVENTS OF DEFAULT.
6.1 EVENTS OF DEFAULT DEFINED. The occurrence of any of the
following events shall constitute an "EVENT OF DEFAULT."
(a) PAYMENT DEFAULT. Borrower shall fail to pay for
a period of ten (10) days after the date when due any amount of principal of or
interest on the Loans or any other amount payable by it under the Loan
Documents; or
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(b) BREACH OF WARRANTY. Any representation or
warranty made or deemed made by Borrower under or in connection with the Loan
Documents shall prove to have been incorrect in any material respect when made;
or
(c) BREACH OF CERTAIN COVENANTS. Borrower shall
fail to have complied with any provision of Section 4.11 or Section 5; or
(d) BREACH OF OTHER COVENANT. Borrower shall fail
to perform or observe any other covenant, obligation or term of any Loan
Document and such failure shall remain unremedied for 30 days after written
notice thereof shall have been given to Borrower by Lender; or
(e) CROSS-DEFAULT. Borrower shall fail (i) to pay
when due (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise) any Indebtedness in an amount in excess of $500,000
(except any Loans) or any interest or premium thereon and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument relating to such Indebtedness, or (ii) to perform any term or
covenant on its part to be performed under any agreement or instrument relating
to any such Indebtedness and required to be performed and such failure shall
continue after the applicable grace period, if any, specified in such agreement
or instrument, if the effect of such failure to perform is to accelerate or to
permit the acceleration of the maturity of such Indebtedness, or (iii) any such
Indebtedness shall be declared to be due and payable or required to be prepaid
(other than by regularly scheduled required prepayment) prior to the stated
maturity thereof; or
(f) VOLUNTARY BANKRUPTCY, ETC. Borrower shall: (i)
file a petition seeking relief for itself under Title 11 of the United States
Code, as now constituted or hereafter amended, or file an answer consenting to,
admitting the material allegations of or otherwise not controverting, or fail
timely to controvert a petition filed against it seeking relief under Title 11
of the United State Code, as now constituted or hereafter amended; or (ii) file
such petition or answer with respect to relief under the provisions of any
other now existing or future applicable bankruptcy, insolvency, or other
similar law of the United States of America or any State thereof or of any
other country to jurisdiction providing for the reorganization, winding-up or
liquidation of corporations or an arrangement, composition, extension or
adjustment with creditors; or
(g) INVOLUNTARY BANKRUPTCY, ETC. An order for
relief shall be entered against Borrower under Title 11 of the United States
Code, as now constituted or hereafter amended, which order is not stayed; or
upon the entry of an order,
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judgment or decree by operation of law or by a court having jurisdiction in the
premises which is not stayed adjudging it a bankrupt or insolvent under, or
ordering relief against it under, or approving as properly filed a petition
seeking relief against it under the provisions of any other now existing or
future applicable bankruptcy, insolvency or other similar law of the United
States of America or any State thereof or of any other country or jurisdiction
providing for the reorganization, winding-up or liquidation of corporations or
any arrangement, composition, extension or adjustment with creditors; or
appointing a receiver, liquidator, assignee, sequestrator, trustee or custodian
of it or of any substantial part of its property, or ordering the
reorganization, winding-up or liquidation of its affairs; or upon the
expiration of 120 days after the filing of any involuntary petition against it
seeking any of the relief specified in Section 6.1(f) or this Section 6.1(g)
without the petition being dismissed prior to that time; or
(h) INSOLVENCY, ETC. Borrower shall (i) make a
general assignment for the benefit of its creditors or (ii) consent to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, or custodian of all or a substantial part of its property, or (iii)
admit its insolvency or inability to pay its debts generally as they become
due, or (iv) fail generally to pay its debts as they become due, or (v) take
any action (or suffer any action to be taken by its director or shareholders)
looking to the dissolution or liquidation of Borrower; or
(i) JUDGMENT. A final judgment or order for the
payment of money in excess of $100,000, or which impairs Lender's Lien on
Collateral or Borrower's rights therein, shall be rendered against Borrower and
such judgment or order shall continue unsatisfied and in effect for a period of
10 consecutive days; or
(j) INVOLUNTARY LIENS. Any involuntary Lien in the
sum of $100,000 or more shall attach to any asset or property of Borrower which
is not discharged within 60 days after such attachment or within 30 days after
notice from Lender, whichever first occurs; or
(k) FAILURE TO SETTLE CLASS ACTION LITIGATION. The
class action litigation described in Section 2.2(b) hereof shall not have been
fully settled and dismissed with prejudice (without any further right of
appeal) on terms and conditions satisfactory to Lender on or before June 30,
1997.
(l) EXTRAORDINARY SITUATION. An extraordinary
situation shall occur which gives Lender reasonable grounds to believe that
Borrower may not, or will be unable to, perform or
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observe in the normal course its obligations under the Loan Documents; or
(m) ERISA. A Plan or any trust thereunder shall be
terminated (or proceedings shall be instituted to terminate it) or shall engage
in a "prohibited transaction" (as defined in ERISA) or incur any "accumulated
funding deficiency" (as defined in ERISA) in excess of $100,000, whether or not
waived; or any Indebtedness of Borrower in excess of that amount to or with
respect to a Plan shall not be paid when due.
6.2 CONSEQUENCES OF DEFAULT. If any Event of Default shall
occur and be continuing, then in any such case and at any time thereafter so
long as any such Event of Default shall be continuing, Lender may at its option
immediately terminate the Commitment and, if any Loans shall have been made,
Lender may at its option declare the principal of and the interest on the Loans
and all other sums payable by Borrower under the Loan Documents to be
immediately due and payable, whereupon the same shall become immediately due
and payable without protest, presentment, notice or demand, all of which
Borrower expressly waives.
SECTION 7. MISCELLANEOUS.
7.1 NO WAIVER; REMEDIES CUMULATIVE. No failure by Lender to
exercise, and no delay in exercising, any right, power or remedy under any Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or remedy under any Loan Document preclude any
other or further exercise thereof or the exercise of any other right, power, or
remedy. The exercise of any right, power, or remedy shall in no event
constitute a cure or waiver of any Event of Default nor prejudice the right of
Lender in the exercise of any right hereunder or thereunder, unless in the
exercise of such right, all obligations of Borrower under the Loan Documents
are paid in full. The rights and remedies provided herein and therein are
cumulative and not exclusive of any right or remedy provided by law.
7.2 GOVERNING LAW. The Loan Documents shall be governed by
and construed in accordance with the laws of the State of Washington (excluding
its conflict of laws rules).
7.3 CONSENT TO JURISDICTION. Borrower hereby irrevocably
submits to the jurisdiction of any state or federal court sitting in Seattle,
King County, Washington, in any action or proceeding brought to enforce or
otherwise arising out of or relating to any Loan Document and irrevocably
waives to the fullest extent permitted by law any objection which it may now or
hereafter have to the laying of venue in any such action or proceeding in any
such forum, and hereby further irrevocably
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waives any claim that any such forum is an inconvenient forum. Borrower agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdiction by suit on the judgment or in any other
manner provided by law. Nothing herein shall impair the right of Lender to
bring any action or proceeding against Borrower or its property in the courts
of any other jurisdiction, and Borrower irrevocably submits to the nonexclusive
jurisdiction of the appropriate courts of the jurisdiction in which Borrower is
incorporated, sitting in any place where property or an office of Borrower is
located.
7.4 NOTICES. All notices and other communications provided
for in the Loan Documents shall be in writing or (unless otherwise specified)
by telex, telegram or telephonic facsimile transmission and shall be mailed
(with air mail postage prepaid) or sent by air courier (with air freight
prepaid) or delivered to each party at the address set forth under its name on
the signature page hereof, or at such other address as shall be designated by
such party in a written notice to each other party. Except as otherwise
specified, all such notices and communications if duly given or made shall be
effective upon receipt.
7.5 ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective Successors and
assigns, except that Borrower may not assign or otherwise transfer all or any
part of its rights or obligations hereunder without the prior written consent
of Lender, and any such assignment or transfer purported to be made without
such consent shall be ineffective. Lender may at any time assign or otherwise
transfer all or any part of its interest under the Loan Documents (including
assignments for security and sales of participations), and to the extent of
such assignment, the assignee shall have the same rights and benefits against
Borrower and otherwise under the Loan Documents (including the right of setoff)
as if such assignee were Lender.
7.6 SEVERABILITY. Any provision of any Loan Document which
is prohibited or unenforceable in any jurisdiction shall as to such
jurisdiction be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties waive any
provision of law which renders any provision hereof prohibited or unenforceable
in any respect.
7.7 CONDITIONS NOT FULFILLED. If the Commitment or any
portion thereof is not borrowed owing to nonfulfillment of any condition
precedent specified in Section 2, neither Borrower nor
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Lender shall be responsible to the other for any damage or loss by reason
thereof, except that Borrower shall in any event be liable to pay the fees,
Taxes, and expenses for which it is obligated hereunder.
7.8 ENTIRE AGREEMENT; AMENDMENT. The Loan Documents comprise
the entire agreement of the parties and may not be amended or modified except
by written agreement of Borrower and Lender. No provision of any Loan Document
may be waived except in writing and then only in the specific instance and for
the specific purpose for which given.
7.9 HEADINGS. The headings of the various provisions of the
Loan Documents are for convenience of reference only, do not constitute a part
hereof, and shall not affect the meaning or construction of any provision
thereof.
7.10 CONSTRUCTION. In the event of any conflict between the
terms, conditions and provisions of this Agreement and those of any other Loan
Document, the terms, conditions and provisions of this Agreement shall control.
SECTION 8. DEFINITIONS.
8.1 CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms have the following meanings, which apply to both the singular
and plural forms of the terms defined:
"BORROWER" means Legend Properties, Inc., a Delaware
corporation, and any Successor.
"BUSINESS DAY" means a day on which banks are open for
business in Seattle, Washington.
"COLLATERAL" means real or personal property subject at any
time to a Lien granted by Borrower to secure the Loans.
"COMMITMENT" and "COMMITMENT PERIOD" have the meanings defined
in Section 1.1.
"DEEDS OF TRUST" means the Deeds of Trust on the Mortgaged
Property substantially in the form of Exhibit B, and any renewals or extensions
thereof or replacements therefor.
"DEFAULT" means an Event of Default or other event which, with
notice or lapse of time or both, would constitute an Event of Default.
"DOLLAR" and the sign "$" each means lawful money of the
United States.
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"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"EVENT OF DEFAULT" has the meaning defined in Section 6.1.
"GUARANTY" means the Guaranty substantially in the form of
Exhibit C, and any renewals or extensions thereof or replacements therefor.
"INDEBTEDNESS" means for any person (i) all items of
indebtedness or liability (except capital, surplus, deferred credits and
reserves, as such) which would be included in determining total liabilities as
shown on the liability side of a balance sheet as of the date as of which
indebtedness is determined, (ii) indebtedness secured by any Lien, whether or
not such indebtedness shall have been assumed, (iii) any other indebtedness or
liability for borrowed money or for the deferred purchase price of property or
services for which such person is directly or contingently liable as obligor,
guarantor, or otherwise, or in respect of which such person otherwise assures a
creditor against loss, and (iv) any other obligations of such person under
leases which shall have been or should be recorded as capital leases.
"LENDER" means RGI Holdings, Inc., a Washington corporation,
and any Successor.
"LIEN" means, for any person, any security interest, pledge,
mortgage, charge, assignment, hypothecation, encumbrance, attachment,
garnishment, execution or other voluntary or involuntary lien upon or affecting
the revenues of such person or any real or personal property in which such
person has or hereafter acquires any interest, except (i) liens for Taxes which
are not delinquent or which remain payable without penalty or the validity or
amount of which is being contested in good faith by appropriate proceedings
upon stay of execution of the enforcement thereof; (ii) liens imposed by law
(such as mechanics' liens) incurred in good faith in the ordinary course of
business which are not delinquent or which remain payable without penalty or
the validity or amount of which is being contested in good faith by appropriate
proceedings upon stay of execution of the enforcement thereof; and (iii)
deposits or pledges under workmen's compensation, unemployment insurance,
social security or other similar laws or made to secure the performance of
bids, tenders, contracts (except for repayment of borrowed money), or leases,
or to secure statutory obligations or surety or appeal bonds or to secure
indemnity, performance or other similar bonds given in the ordinary course of
business.
"LOAN" means a loan made by Lender to Borrower pursuant to
Section 1.
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"LOAN DOCUMENT" means each of this Agreement, the Note, the
Guaranty and the Deeds of Trust, as each thereof shall be from time to time
modified, amended, or supplemented.
"MORTGAGED PROPERTY" means the real property described in
Exhibit A to the Deeds of Trust.
"NOTE" means a promissory note of Borrower substantially in
the form of Exhibit A, and any renewal or extension thereof or replacement
therefor.
"PLAN" means an "employee benefit pension plan" (as defined in
ERISA) which is (i) maintained by Borrower or by any other member of a
controlled group ("Controlled Group") which together with Borrower are treated
as a single employer under the Internal Revenue Code of 1986, as amended (the
"Code"), or (ii) covered by Title IV of ERISA or subject to minimum funding
standards under the Code and maintained pursuant to a collective bargaining
agreement or other multi-employer arrangement under which Borrower or any other
member of a Controlled Group is making or accruing the obligation to make
contributions or has made contributions during the preceding five plan years.
"PRIME RATE" means on any day the prime rate as published in
the Wall Street Journal by Dow Xxxxx & Company, Inc., changing as such prime
rate changes, provided, however, that after an Event of Default it shall mean
said prime rate plus four percent (4%).
"SUCCESSOR" means, for any corporation or banking association,
any successor by merger or consolidation, or by acquisition of substantially
all of the assets of the predecessor.
"TAX" means for any person any tax, assessment, duty, levy,
impost or other charge imposed by any Governmental Authority on such person or
on any property, revenue, income, or franchise of such person and any interest
or penalty with respect to any of the foregoing.
8.2 CONSOLIDATED SUBSIDIARIES. All references in Section
Section 3.6 and 4.10 to financial statements of Borrower, and all references
to Borrower in Section Section 5 and 6, refer to Borrower and its consolidated
subsidiaries on a consolidated basis.
8.3 OTHER ACCOUNTING TERMS. Except as otherwise provided
herein, accounting terms not specifically defined shall be construed, and all
accounting procedures shall be performed, in accordance with generally accepted
United States accounting principles consistently applied.
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ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND
CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE
NOT ENFORCEABLE UNDER WASHINGTON LAW.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers or agents thereunto duly authorized as
of the date first above written.
BORROWER: LENDER:
LEGEND PROPERTIES, INC. RGI HOLDINGS, INC.
/s/ XXXXXXX X. XXXXXX /s/ XXXXXXX X. XXXXXX
---------------------------- ------------------------------
By: Xxxxxxx X. Xxxxxx By: Xxxxxxx X. Xxxxxx
Its: Treasurer Its: President
Address: Address:
0000 Xxxxx Xxxxxx 0000 Xxxxx Xxxxxx
00xx Xxxxx 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000 Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxx Attn: Xxxxxxx X. Xxxxxx
Fax: 000-000-0000 Fax: 000-000-0000
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